Rajasthan High Court - Jaipur
Ali Mohammed vs State And Ors on 24 September, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.1228/2004 Umar S/o Kamal Khan Vs. The State of Rajasthan through Public Prosecutor
2. D.B. Cr. Revision Pet. No.1048/2004 Ali Mohammed S/o Rehmat Vs. State of Rajasthan through Public Prosecutor (non-petitioner), Hakmuddin and Others (accused-non-petitioners)
3. D.B. Cr. Revision Pet. No.1151/2004 Ali Mohammed S/o Rehmat Vs. State of Rajasthan through Public Prosecutor (non-petitioner), Kamruddin and Others (accused-non-petitioners) Date of Order ::: 24.09.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mrs. Justice Nisha Gupta Shri Vijay Yadav and Shri Babulal Sharma, Counsel for accused-appellant Shri Javed Choudhary, Public Prosecutor for the State Shri Ravi Shankar Sharma, counsel for complainant-petitioner in Revision Petition Shri Rajesh Choudhary, counsel for accused-respondents in Revision Petition #### //Reportable// Per Hon'ble Mr. Justice Mohammad Rafiq:-
Aforesaid criminal appeal and revision petitions are directed against common judgment dated 25.09.2004 of learned Additional District & Sessions Judge (Fast Track), Kaman, in Sessions Case No.12/2003.
Accused-appellant Umar has filed the criminal appeal challenging the impugned judgment whereby he has been convicted for offence under Section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.1000/-, in default of payment of fine, he was to further undergo one month's rigorous imprisonment. Revision Petition No.1048/2004 has been filed by complainant Ali Mohammed challenging part of the impugned judgment whereby four accused-respondents Hakmuddin, Mubbi, Usman and Fatte, have been acquitted for offence under Sections 148, 323, 307/149, 302/149 and 302 IPC and Section 3/25 of the Arms Act. Revision Petition No.1151/2004 has also been filed by complainant Ali Mohammed challenging the impugned judgment to the extent three accused-respondents Kamruddin, Islam and Najim have been discharged for the offence under Section 148, 323, 307/149 and 302/149 of the IPC.
Facts giving rise to these cases are that complainant Ali Mohammad submitted a written report (Exhibit P-1) on 11.04.2003 to the Station House Officer, Police Station Pahadi, alleging that around 12 in the noon that day he along-with his brother and others were sitting with Nabi Khan, who was recuperating after surgery. Accused Umar Mohammad, Maqsood, Mubbi, Kamruddin, Ismile, Fatte, Fajjar, Najim, Rasid and Kallu suddenly came there. They armed with deadly weapons entered the house. Accused Umar Mohammad opened fire, which injury Deen Mohammad sustained on his chest. Accused Kamruddin also opened fire and caused injury on the neck of Deen Mohammad. As a result of which, injured Deen Mohammad died on the spot. It was alleged that accused Mubbi opened fire and caused injury to Mormal. Accused Maqsood also opened fire and caused injuries to Mormal. Accused Islam opened fire and caused injuries to Shamsher. While, accused Fatte caused injuries to Shamsher by firearm, accused Fajjar pelted stone and caused injuries to Jamshed. Accused Sharif inflicted 'lathi' blow on the body of Jamshed. Other accused pelted stones causing injuries to complainant and Mormal. The incident was witnessed by Aas Mohammad and Ismile.
On the basis of written-report, regular first information report, being FIR No.49/2003, was registered with the Police Station against the accused and investigation commenced. The police, after investigation, filed challan against the accused for offence under Sections, 147, 148, 149, 323, 341, 307, 302 IPC and 3/25 of the Arms Act. The trial court framed charge against the accused for offence under Sections 148, 323, 307/149, 302 IPC and 3/25 of the Arms Act. During the course of trial the trial court, by recourse to Section 319 Cr.P.C., took cognizance against accused Kamruddin, Ismile and Najim for said offences on 05.11.2003. Accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined as many as 17 witnesses and got 34 documents exhibited. The defence produced three witnesses and got 8 documents exhibited. On conclusion of trial, learned trial court convicted and sentenced accused-appellant Umar as indicated above, but acquitted accused Hakmuddin, Mubbi, Usman and Fatte of the charges and discharged accused Kamruddin, Islam and Najim. Hence, the present criminal appeal and revision petitions were preferred on behalf of accused-appellant and complainant, respectively.
We have heard Shri Vijay Yadav and Shri Babulal Sharma, learned counsel for accused-appellant, Shri Javed Choudhary, learned Public Prosecutor for the State, Shri Ravi Shankar Sharma, learned counsel for complainant-petitioner in Revision Petitions and Shri Rajesh Choudhary, learned counsel for accused-respondents in Revision Petitions.
Shri Vijay Yadav and Shri Babulal Sharma, learned counsel for accused-appellant argued that informant Ali Mohammad, in the F.I.R., named 14 accused with their parentage, and also with specific role. In the FIR, which was filed at 3.35 pm on 11.04.2003, it was alleged that the incident took place at 12.00 noon on that day. The tenor of the FIR clearly shows that the genesis of the incident has been suppressed. In the FIR allegation of opening fire at the chest of deceased Deen Mohammad has been made against appellant Umar and, for opening fire at his neck against Kamruddin. It was alleged that on receiving the firearm injuries at the hands of those accused, Deen Mohammad died on the spot. It was further alleged that Mubbi fired on the head of Mormal. Maqsood also fired at the head of Mormal. Accused Islam also fired at the thigh of Shamsher. Accused Fatte opened fire at Asin. Accused Najim opened fire at Jamshed, which he received on his hand. Accused Fajjar pelted stones on the stomach of Jamshed. Sharif delivered a 'lathi' blow on the stomach of Jamshed. Other accused pelted stone. It is quite unnatural for the informant to have given such graphic details of the incident.
Learned counsel argued that the FIR (Exhibit P-2) is shown to have been registered on 11.04.2003 at 3.30 pm, but the same reached the concerning Judicial Magistrate on 16.04.2003 at 9.00 am. There was thus delay of five days in sending the FIR to the Magistrate. This delay explains why all the accused with parentage have been named so correctly with specific overt act. This could be possible only because the accused waited till the deceased and injured were medically examined and only thereafter framed the FIR in such a way that would facilitate the corroboration of the alleged injuries. Learned counsel in this connection referred to the statement of Investigating Officer Rajendra Singh Chauhan (PW-1), who has admitted that he recorded statement of Nabi, Mormal and Jamshed only after they were medically examined. This is evident from the postmortem report (Exhibit P-30) as also the injury reports Shamsher (Exhibit P-26), Mormal (Exhibit P-27), Najim (Exhibit P-28) and Jamshed (Exhibit P-29). The postmortem of deceased was conducted on 12.04.2003 and injury-reports were prepared on 11.04.2003. The trial court has doubted the correctness of the version of the FIR. The trial court while taking note of the statement of Jamshed (PW-12) in Para 33 of the judgment, observed that this witness has stated that the FIR was lodged after sunset whereas in the FIR (Exhibit P-2), the time of lodgment has been mentioned as 3.35 pm. Learned counsel argued that in the written report, which was submitted after much deliberations, the informant, apart from the injured, has alleged that Aas Mohammad and Ismile were also witnesses. Shamsher (PW-4), Najim (PW-7), Jamshed (PW-12), Mormal (PW-13) and Ismile (PW-14) are the injured witnesses, whereas Aas Mohammad (PW-6) is one of the two eye witnesses, who were named therein. Besides, Ismile (PW-14) and Ali Mohammad (PW-15) also claimed to be eye witnesses. There are serious contradictions in the statements of these witnesses. Every witness has given inconsistent version and if compared with the statement made by other witnesses, contradictions are writ large.
Learned counsel argued that recovery of the gun and 'lathis' have been held to be doubtful by learned trial court. Even then, the accused-appellant has been erroneously convicted. Neither the guns nor 'lathis' were marked as articles and were also not produced before the court. Such an evidence cannot be used against accused. While accused-appellant Umar is alleged to have been armed with gun but recovery of a 12-bore gun as well as a 'lathi' has been shown at his instance. Recovery of another 'topidar' gun has been shown at the instance of Rukmuddin, who has been acquitted. Recovery of one 'lathis', each was shown at the instance of accused-appellant Umar, Mubbi and Fatte, all of whom were acquitted. 12-bore gun allegedly recovered at the instance of accused-appellant was not sent for examination to Forensic Science Laboratory. Only the armour Harish Chandra (PW-9) was produced as an expert. His opinion cannot be relied because he only visually examined the gun and not scientifically. There are serious contradictions between the statement of two witnesses of recovery i.e. Brajendra Singh (PW-5) and Jogendra Singh (PW-10), both police constables, as to the time of recovery. The trial court has neither believed the site plan (Exhibit P-3) nor another site plan (Exhibit P-4) and has observed that the place of incident is not clear because there was no sign of any incident having taken place at either of the two places inasmuch as no blood stains were found there. Dr. Neeraj Kumar Sharma (PW-8) has stated that he handed over the blood stained clothes of deceased to the police but neither those clothes were seized nor were they sent to the FSL.
Learned counsel argued that while the trial court has not believed entire evidence of the prosecution and the statements of the prosecution witnesses in respect of other accused, four of whom, namely, Hakmuddin, Mubbi, Usman, Fatte, were acquitted and three, namely, Kamruddin, Islam and Najim, were discharged. It has convicted the accused-appellant alone solely on the basis of testimony of Najim (PW-7), a child witness, aged eight years. The statement of this witness is as vague as it could be but learned trial court has accepted him by citing the reason that he being an innocent child, is unaffected by the worldly affairs and also being an injured, would give correct picture of the incident. This witness in examination-in-chief named both Umar and Kamruddin for killing deceased Deen Mohammad. He has stated that at the time of incident, he was standing behind his house, but in the site plan his house has not been indicated. His father Sammi has also not been produced to prove the location of his house. Learned counsel referred to statement of all eye witnesses and argued that all of them have named both accused-appellant Umar and accused Kamruddin on allegation of opening fire at the deceased but benefit of doubt has been extended to Kamruddin. Accused-appellant Umar could not be convicted on the said evidence.
Learned counsel for accused-appellant further argued that accused was also charged for offence under Section 3/25 of the Arms Act for opening fire with country made gun but the trial court has acquitted the accused of that charge by holding that recovery was highly doubtful. If the connecting evidence against the accused for opening fire at deceased Deen Mohammad has not been accepted, the appellant could not have been convicted for substantive offence of murder under Section 302 IPC.
In the FIR and also in the statement of most of the eye witnesses, it is alleged that deceased and other witnesses had gone to visit Nabi, who was recently operated upon. Nabi could be the best witness for the incident in question but he has not been produced by the prosecution. It is therefore prayed that appeal be allowed as prayed for.
Shri Javed Choudhary, learned Public prosecutor has opposed the appeal and submitted that learned trial court has rightly convicted accused-appellant Umar because not only in the FIR but also in the statement of all the eye witnesses especially, Shamsher (PW-4), Najim (PW-7), Jamshed (PW-12), Mormal (PW-13) and Ismile (PW-14), allegation of causing firearm injury on the chest of deceased Deen Mohammad, has been made against accused-appellant Umar. All the witnesses have been consistent in making such accusation which has been corroborated by recovery of a 12-bore gun at the instance of the accused-appellant. Merely because the other accused have been acquitted of the charge for offence under Section 302 IPC, testimony of the eye witnesses cannot be discarded and the accused Umar cannot be held not guilty.
Learned Public prosecutor submitted that as regards delay of five days in sending the FIR to the Magistrate concerned, the trial court has rightly rejected that argument because no prejudice was caused to the accused for mere reason of this delay. The incident had taken place on Friday and there were two consecutive holidays i.e. second Saturday and Sunday, therefore, delay of five days should be taken to have been satisfactorily explained. Learned counsel argued that observation made by learned trial court as to the place of occurrence indicated in the site plans (Exhibit P-3 and Exhibit P-4) could not be a reason to hold that the incident has not at all taken place. There indeed was an incident of firing leading to unfortunate death of Deen Mohammad. Apart from him, there were four injured. Regarding allegation of over/false implication, the trial court itself has taken precaution by subjecting the statement of prosecution witnesses to greatest amount of scrutiny. It has undertaken the exercise to segregate the falsehood from the truth. Learned Public Prosecutor therefore argued that case of accused-appellant Umar cannot be placed on same pedestal as that of other accused, who has been assigned subsidiary role, accused-appellant Umar being the principal accused.
Learned Public Prosecutor argued that Najim (PW-7) was a child of hardly eight years, nevertheless he has deposed clearly that it was Umar who opened fire, though in the next line he has named both Umar and Kamruddin on allegation of causing death of Deen Mohammad. But the fact is that only one firearm injury has been received by deceased Deen Mohammad and this witness has made allegation of opening firearm injury only against Umar. He has therefore rightly been convicted. Though other eye witnesses specially the injured witnesses, namely, Shamsher (PW-4), Najim (PW-7), Mormal (PW-13) and Jamshed (PW-12) are also naming Kamruddin for opening fire at the deceased but according to them Kamruddin opened fire at the neck and Umar at the chest. The trial court has rightly disbelieved that part of their statement because there is no corresponding injury on the neck of the deceased.
Learned Public prosecutor, referring to the discussion made in Para 36 of the impugned judgment, argued that though the trial court has relied on Najim (PW-7) by observing that he is the most reliable witness that does not however mean that other witnesses have been disbelieved. Non sending of 12-bore gun to the FSL would not be fatal because the armour Harish Chandra (PW-9), an expert in the subject, has proved that the gun was serviceable gun and could fire. Non seizure of the clothes of the deceased also would not make any difference to the fate of the prosecution case. Non production of Nabi would have no adverse effect on the fate of the prosecution case because large number of eye witnesses by overwhelming evidence proved the guilt of accused-appellant beyond reasonable doubt.
Shri Ravi Shankar Sharma, learned counsel for revision-petitioner has criticized the impugned judgment in so far as four accused-respondents Hakmuddin, Mubbi, Usman and Fatte were acquitted and three accused-respondents Kamruddin, Islam and Najim were discharged. Learned counsel argued that not only Deen Mohammad died in the incident but four persons also received injuries. Learned counsel in this connection referred to their injury report who received total seven injuries. The informant in the FIR has given specific role of each accused for the injuries of such injured. The witnesses especially Shamsher (PW-4), Najim (PW-7), Mormal (PW-13) and Jamshed (PW-12), who were injured eye witnesses, also assigned specific role to those accused. In fact, accused-respondents in Revision Petition No.1151/2004 assailing the order of discharge, were jointed as accused by recourse to Section 319 Cr.P.C., but they absconded during trial. The trial court ought not to have therefore discharged them.
Learned counsel argued that the evidence fully proved it to be a case of unlawful assembly for committing murder of Deen Mohammad in furtherance of common object of such assembly. The judgment of the trial court to the extent it has acquitted four accused-respondents Hakmuddin, Mubbi, Usman and Fatte and discharged three accused-respondents Kamruddin, Islam and Najim, is bad in law and the judgment is liable to be set-aside.
We have given our anxious consideration to rival submissions and perused the material on record.
True it is that endeavour of a court in a criminal trial should always be to ensure that a culprit may not go scot-free but at the same time, it is equally true that serious charge of murder against an accused has to be proved beyond reasonable doubt. It is not open for a court to apply the abstract principal greater the charge - higher the degree of proof, to distinguish the case of graver nature like murder from those of petty nature like theft etc. In a criminal trial the required degree of proof is always beyond reasonable doubt irrespective of the nature of offence. That burden has to be discharged by the prosecution. Conviction of an accused can be recorded only on the basis of legally acceptable evidence, and not just because the court is dealing with a case of heinous crime.
The Supreme Court in Faizan Ahmad @ Kalu Vs. State of Bihar 2013 IAD (S.C.) 269, held that the criminal court recognize only legally admissible evidence and not far-fetched conjectures and surmises. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence.
On examination of the impugned judgment, we have observed that the trial court has, while acquitting four accused and discharging three accused, detailed out several lacunae in the prosecution case, and yet, on the same set of evidence, convicted accused appellant Umar. How possibly then those lacunae could be relied to record conviction of accused Umar, is difficult to appreciate. Before, however, we deal with those lacunae, a brief resume of evidence of prosecution witnesses, especially the injured eye witnesses, would not be out of order.
Let us first begin with written report, which eventually became the first information report. Fourteen accused were named therein and surprisingly all with their parentage. It was alleged that accused came armed with guns, 'lathis' and stones and entered the house of the informant and proclaimed that Deen Mohammad and his family members Mormal, Mormal, Shamsher, Aasim, Jamshed and Ali Mohammad (informant) should be killed. Accused Umar opened fire at chest of Deen Mohammad. Accused Kamruddin also opened fire at Deen Mohammad, which he received on his neck. Deceased died due to gun fire injuries caused by these two accused. Mubbi opened fire at Mormal on his head. Maqsood fired at Mormal also on his head. Islam gave pallet injuries which were received by Shamsher on his thigh. Accused Fatte fired at Aashin. Accused Najim also opened fire, pallet injuries of which were received by Shamsher. Fajjar pelted stones at Jamshed causing injuries on his body. Accused Sharif inflicted 'lathi' blow on the stomach of Jamshed. Other accused pelted stones. It was alleged that Aas Mohammad and Ismile have witnessed this incident.
Shamsher (PW-4), who is an injured eye witness, has stated that complainant party was carrying the stones excavated from a mine in a dumper. On the way they stopped at the residence of Nabi Khan, who was recently operated upon. Abdul Rahim, Deen Mohammad, Mormal, Mormal, Najim, Jamshed and Ali Mohammad were sitting there. At that time when dumper reached there, the accused intercepted it. Complainant pleaded with them that they should let the dumper go but they did not relent. The dumper driver ran away with the dumper. Kamruddin exhorted the other accused for opening fire at Deen Mohammad. Accused Kamruddin and Umar opened fire from their guns, which hit Deen Mohammad who fell down on the ground. Then, allegations have been made against accused for the injuries of the injured. Jamshed (PW-12) is another injured witness. He has stated that on exhortation by Kamruddin, Umar fired at Deen Mohammad, which he received on his chest. Kamruddin also opened fire, which also hit his chest. Deen Mohammad fell on the ground. Mormal (PW-13) has also alleged that on exhortation of Kamruddin, Umar opened fire which hit chest on left side of the deceased. Kamruddin opened fire which hit his neck. Ismile (PW-14) has also alleged that on the exhortation given by Kamruddin, Umar opened fire, which hit deceased Deen Mohammad in the chest. Kamruddin opened fire which also hit Deen Mohammad. This witness has not indicated specific part of the body at which the firearm injury was received by Deen Mohammad at the hands of Kamruddin. Ali Mohammad (PW-15), the informant, has also stated that a dumper carrying stone from a quarry was stopped by accused party and thereupon the incident took place. He stated that when Kamruddin gave exhortation to other accused for opening fire at Deen Mohammad, Umar opened fire which hit Deen Mohammad in chest. Soon thereafter Kamruddin also opened fire which hit Deen Mohammad on his neck.
When aforesaid eye witnesses account is juxtaposed on the injuries sustained by deceased Deen Mohammad, it becomes evident that he received only one gunshot wound of entrance on left anterior thoracic wall about 8 cm below tip of shoulder and 15 cm left of mid-line wound is circular in shape 2 cm in diameter, and made up of 1.2 cm radial dimensional abrasion ring or green colour. There is exit wound on left part thoracic wall about 10 cm below tip of left shoulder and 4 cam below the part axillary line. His cause of death is opined to be hemorrhagic shock caused by homicidal gun shot injury by Dr. Neeraj Kumar Sharma (PW-8), who has proved the postmortem report (Exhibit P-30). It is thus clear that there is only one firearm injury on the person of deceased and not two. First look at the statement of this witness may impel one to accept the allegation on the face value, as the injury attributed to the accused on chest, is corroborated by the medical evidence but the matter does not end here. What we have to see is whether this allegation against the accused is proved by legal evidence beyond reasonable doubt.
As per the story disclosed by the prosecution witnesses in the court, the dispute arose when the complainant party wanted to carry masonry stones in the dumper without getting the 'ravannas' issued. All the eye witnesses including informant Aas Mohammad (PW-6) for the first time adduced a new story in their court statement suggesting a motive for the murder of deceased Deen Mohammad. What they alleged is that complainant-petitioner was transporting the masonry stones in their dumper. The accused party who had the contract of royalty collection, stopped and demanded royalty. The accused were armed with guns and other weapons. The complainant then pleaded with them to let the dumper go but they would not relent. Then the incident took place. Surprisingly, the FIR despite having been elaborately written and intelligently prepared, does not contain any such story of the complainant carrying the stones in dumper and accused stopping them and the dispute having arisen due to that.
The trial court, on analysis of entire evidence, recorded following findings to justify acquittal of four accused Hakmuddin, Mubbi, Usman and Fatte, (1) That in the FIR 15 accused were named but the charge-sheet was filed only against five and thereafter cognizance was taken against three accused Kamruddin, Islam and Najim, under Section 319 Cr.P.C. The prosecution witnesses have differed from each other in respect of total number of accused and their allegations do not tally with what is stated in the FIR.
(2) That the police reached the place of incident earlier than lodgment of the written report (Exhibit P-1). The FIR was registered on 11.04.2003, whereas it was produced before the concerned Magistrate five days thereafter on 16.04.2003. In the circumstances, the story disclosed in the FIR appears to be concocted and fabricated one.
(3) That there are several contradictions in the statements of eye witnesses as to the place of incident. According to the site-plan (Exhibit P-3), the incident took place in common chowk and public way. Dead-body of Deen Mohammad is shown lying at place X1 therein. In the site-plan (Exhibit P-3), the fire is shown to have been opened from place 'A' in the house of the complainant, whereas the house of Ali Mohammad has not been shown therein. In another site plan (Exhibit P-4), the house of Ali Mohammad has been shown at mark '4', Aas Mohammad at mark '5' and Nabi Khan at mark '6'. Mormal is shown to have received firearm injury at place X1.
(4) That Ali Mohammad (PW-15) has asserted that the incident has taken place at one place and not at two places. The trial court, therefore, observed that the place of incident has not been proved as per the evidence beyond reasonable doubt and that the prosecution witnesses are giving contradictory version thereabout. In the court, however, Ali Mohammad (PW-15) has stated that the incident did not take place in the house of Kamruddin but it happened in front of the house of Kamruddin. Injured Shamsher (PW-4), brother of deceased Deen Mohammad, has stated that the incident took place in the house of Abdul Karim and that he himself received firearm injury outside the house of Nabi Khan on 'chabutra'. He has asserted that the incident had taken place only at one place. The site-plan (Exhibit P-4) thus becomes doubtful.
(5) The police has not lifted any blood stains or blood smeared sand from the place of incident, whereas the blood of the deceased is said to have spread there, which the eye witnesses claim to have seen and accordingly informed the police of which site plans were prepared on the same day. Yet no blood stains on the soil or the floor or empties of cartridges or any other evidence to substantiate that the incident has taken place at either of two places, were lifted to substantiate that the incident actually took place there. The place of incident discloses in the FIR is different than the one indicated in the site-plans (Exhibits P-3 and P-4).
(6) That two firearms were recovered. Armour Harish Chandra (PW-9) has been produced to prove that the gun was serviceable but neither the firearm was sent to the FSL to connect the same with the injuries sustained by deceased and the injured.
(7) That the trial court observed that the prosecution witnesses have given different version as to the manner in which the incident took place. While the prosecution witnesses introduced a new story in their statements before the court stating that the incident took place because the accused did not get the 'ravanna' issued to pay royalty and were indulging in illegal mining by carrying stones in the dumper but there is no such mention in the FIR. Thus, the genesis of the incident has not been fully disclosed to the court from inception.
(8) That the prosecution witnesses have made substantial improvements over the original version even though the police under Section 161 Cr.P.C.
(9) That the prosecution witnesses alleged that the fire was opened by Umar which hit Deen Mohammad on his chest and fire opened by Kamruddin hit the neck of Deen Mohammad, whereas in the postmortem report there is only one firearm injury.
Shamsher (PW-4) though alleged that Kamruddin opened fire at Deen Mohammad, which he received at neck, whereas there is no such corresponding firearm injury. Mormal (PW-13) also similarly alleged that Kamruddin opened fire at deceased, which hit his neck, whereas there is no corresponding injury. He was confronted to his statement (Exhibit D-5) given to the police under Section 161 Cr.P.C., wherein he, apart from Umar, also named Hakmuddin for opening fire at Shamsher. He also stated that Umar had a gun and Hakmuddin also had a topidar gun and 'lathi' both, whereas there is no corresponding injury on the neck of Deen Mohammad. Mormal also stated about having received firearm injury but there is no such injury.
(10) That according to the prosecution witnesses they were attending Nabi Khan, who was recuperating after recent surgery. He was an important witness but he has not been produced in the witness box. The prosecution witnesses alleged that the incident took place near his house. Neither the house of Nabi Khan has been shown in the site-plan (Exhibit P-3), nor Nabi has been produced in evidence. His house is shown in the site-plan (Exhibit P-4) as the place of incident where the firearm injury is alleged to have been caused to injured Mormal.
Apart from above referred to findings recorded by the trial court, delay in sending the FIR to the concerned Magistrate is very significant lapse on the part of the investigating agency. FIR (Exhibit P-2) was registered on 11.04.2003 at 3.30 pm, but the same reached the concerned Judicial Magistrate on 16.04.2003 at 9.00 am. There was thus enormous delay of five days in sending the FIR to the Magistrate. No explanation has been given for the delay of five days in sending the FIR to the concerned Magistrate. First two of these five days were holidays being second Saturday and Sunday, is no explanation and even assuming so, there is no explanation at all for next three days.
Investigating officer Rajendra Singh Chouhan (PW-1), admitted that he did not find any evidence or proof to substantiate that the incident took place in the chowk of the house of Ali Mohammad. This is contrary to the version given in the FIR. It has not been proved that the articles recovered during the course of investigation were entered in the register of 'maalkhana' because such registered has not been produced in evidence. The prosecution witnesses, in their statements (Exhibit D-1 to Exhibit D-8) given to the police under Section 161 Cr.P.C., have consistently stated that Umar had 12-bore gun, whereas in their deposition before the court they have given different version and many of them have alleged that Kamruddin had firearm and also opened fire at Deen Mohammad. Brajendra Singh (PW-5), the police constable, who is the witness of recovery, has stated that police party left the police station in the evening at 6-7 pm for the place of recovery and it took about 2-2 hours in recovery proceedings. Thereafter, they reached the police station at 9-9 pm. According to this witness, recovery was made on 26.04.2003, whereas the site-plan (Exhibit P-15) of the place of recovery, was prepared at 9.00 am. Exhibit P-19 is the recovery memo of one 'topidar' gun at the instance of accused Hakmuddin and time of its preparation is shown to be 8.35 am. Exhibit P-12 is the recovery memo of one 12-bore gun at the instance of accused Umar, and time of its preparation is shown to be 8.30 am. Exhibit P-14 is the recovery memo of one 'lathi' at the instance of accused Usman and time of its preparation is shown to be 8.50 am. Recovery at the instance of this accused, owing to all this was held to be doubtful.
Exhibit P-11 is the information memo prepared under Section 27 of the Evidence Act on the basis of information given by accused Umar. Sample of control soil and the blood smeared soil were neither obtained nor were sent to the FSL. Though, Dr. Neeraj Kumar Sharma (PW-8) has stated that he handed over the blood stained clothes of the deceased to the police. The blood stained clothes of the deceased were neither seized nor sent to the FSL. The testimony of the prosecution witnesses has not been medically corroborated inasmuch as injured have not received the injuries as per the allegation made by them. The deceased did not receive any injury on the neck. Mormal did not receive any firearm injury.
There are serious contradictions in the version of the prosecution witnesses as to the distance from which the fire was opened. There were marks of blackening and tattooing on the entry wound of the deceased, which indicates that the fire was opened from close range whereas the prosecution witnesses have stated that the fire was opened from a distance of 8 to 10 meters.
The trail court did not find any case made out against four accused Hakmuddin, Mubbi, Usman and Fatte and on that basis acquitted them of the charges. The trial court also did not find any case made out against three accused-respondents Kamruddin, Islam and Najim and accordingly discharged them of the charges. Yet, it convicted accused-appellant Umar only on the basis of statement of Najim (PW-7). This witness being a child, is certainly entitled to some latitude for appreciating his statement. At the same time, his statement has to be scrutinized carefully in the face of the aforesaid finding so as to find out whether it receives corroboration from other evidence or not. In the first sentence, he alleged that Umar has killed Deen Mohammad, then in next sentence, he stated that Umar killed Deen Mohammad by gun. Then, in third sentence, he stated that Umar and Kamruddin both killed Deen Mohammad and in fourth that he too received firearm injury on his left thigh. This witness has stated that he stood behind his house. His father's name is Sappi. but if this witness was present on the scene of occurrence or close thereby, his house should have been indicated in either of the site-plans, but surprisingly neither Exhibit P-3 nor Exhibit P-4 indicates the house of Sappi. Prosecution has not even produced his father Sappi in witness-box to prove the location of his house and that how close it was from the place of incident. When confronted with his earlier statement (Exhibit D-3) given to the police under Section 161 Cr.P.C., Najim (PW-7) stated that he had told the police that Kamruddin opened fire at Deen Mohammad but why it has not been mentioned therein, he could not say. Then, he stated that he was inside the house where he received the firearm injury. Though, in the normal circumstances, testimony of a child witness is entitled to receive some latitude, but present one is a case where the prosecution is marred by manipulations, concoctions and fabrications. The conviction of the accused-appellant on the basis of such evidence of child witness alone without satisfactory corroboration from cogent and reliable evidence, is highly unsafe.
On analytical consideration and sifting of the evidence and on consideration of the findings recorded by the trial court, we are persuaded to hold that the charges even against accused-appellant Umar have not been proved beyond reasonable doubt. Most of the aforementioned reasons, which weighed with the trial court in acquitting the accused-respondents, also equally apply to the case of accused-appellant Umar.
In view of the aforesaid discussion, the conviction of accused-appellant Umar cannot be sustained. His appeal deserves to succeed. However, both the revision petitions are liable to be dismissed.
In the result, the appeal is allowed. Impugned judgment dated 25.09.2004 of learned Additional Sessions Judge (Fast Track), Kaman, District Bharatpur, is set aside. The conviction of accused-appellant Umar for offence under Section 302 of the IPC and sentence awarded to him to undergo life imprisonment with fine, stand set-aside. He is acquitted of the charge under Section 302 IPC. He is in jail. He be set at liberty forthwith if not required in any other case. However, both the revision petitions are dismissed.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellant Umar is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.
(Nisha Gupta) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW