Rajasthan High Court - Jaipur
Mohsin @ Munna @ Mushtar vs State on 15 October, 2009
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. D.B.CRIMINAL APPEAL NO.1021/2008. MOHSIN @ MUNNA @ MUSHTAR @ MUSHTAQ. VERSUS STATE OF RAJASTHAN. 2. D.B.CRIMINAL JAIL APPEAL [DEFECT NO.0494/2008] MUNNA @ MOHSEEN. VERSUS STATE OF RAJASTHAN. AGAINST THE JUDGMENT AND CONVICTION ORDER DATED 25.01.2001 PASSED BY SHRI JAGDISH NARAIN SHARMA, R.H.J.S., SESSIONS JUDGE, TONK IN SESSIONS CASE NO.63/1998 WHEREBY THE ACCUSED APPELLANT HAS BEEN CONVICTED AND SENTENCED FOR LIFE IMPRISONMENT FOR THE OFFENCE UNDER SECTION 302 AND 302 READ WITH 120-B I.P.C. Date of Judgment. : October 15th, 2009. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE K.S.CHAUDHARI Mr.Vinay Pal Yadav, for the appellant. Mr.J.R.Bijarnia, Public Prosecutor for the State. BY THE COURT (PER HON'BLE SINGH,J.):
D.B.CRIMINAL APPEAL NO.1021/2008 This appeal has been preferred by the accused appellant Mohsin @ Munna @ Mushtar @ Mushtaq son of Ahmed Hussain @ Mohammad Hussain who was convicted by the learned Sessions Judge, Tonk in Sessions Case No.63/1998 vide judgment dated 25.01.2001 for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- and for the offence under Section 302 read with Section 120-B I.P.C. wherein also he was sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-; in default of payment of fine to undergo further two months imprisonment. The accused appellant was, however, acquitted by the learned trial court of the offence under Section 177 I.P.C.
2. We have heard learned counsel for the accused appellant and the learned Public Prosecutor for the State and perused the record.
3. The facts, in brief, are that an FIR (Exhibit P-67) came to be registered on 23.07.1998 on the basis of a written report (Exhibit P-1) made by Matin Aadil (PW-1) at Police Station Kotwali, Tonk wherein it was stated that in the morning at about 7:30 AM his brother Javed (deceased) had proceeded to the worksite where the construction work was going on. At about 8:00 AM, the witness PW-1 Matin Aadil also followed him and saw that one Naseeb went towards the site on his motorcycle bearing registration No.RJ-26/M-3097. It was stated that Naseeb was riding the motorcycle and another person who was staying at the house of Mussavir was on the pillion seat and both of them went towards the construction site. It was stated in the FIR that these two persons reached the site before the witness reached. Matin Aadil (PW-1) further stated in the report that when he reached the spot, he saw a person inflicting three blows with a gupti (sharp edged weapon, a knife) on the chest and thereafter jumping over the wall and running away. When he reached the deceased, brother of PW-1 Matin Aadil, the deceased Javed told him that Mohsin (the accused appellant) who was staying at the house of Mussavir had inflicted blows with a gupti and had run away. The deceased (Javed) also told PW-1 Matin Aadil that on the previous day i.e. 22.07.1998 also Naseeb and Mohsin had come to the construction site. PW-1 Matin Aadil further stated in the report that the deceased became unconscious after narrating the aforesaid incident to him and disclosing the name and identity of the deceased. He further stated in the report (Exhibit P-1) that on the construction site PW-18 Jameel Miyan, PW-7 Riyaz Khan and PW-20 Prabhu Lal and other workers were also present who had also witnessed the incident. He further stated in the report that they had taken Javed from the construction site to the hospital where his brother (Javed) was declared dead. In the report he stated that his brother (Javed) had been murdered by Mohsin, Naseeb, Mussavir and others having conspired to murder him.
4. On the aforesaid report, FIR No.296/1998 (Exhibit P-67) came to be registered at the Police Station Kotwali, Tonk on 23.07.1998 at 9:35 AM for the offence under Section 302 and 120-B I.P.C.
5. After recording the aforesaid FIR (Exhibit P-67) for the offence under Section 302 and 120-B I.P.C., the accused appellant came to be arrested on 23.07.1998 itself. The arrest memo is Exhibit P-18. In the meanwhile, the police had visited the site and prepared the site plan (Exhibit P-2). While carrying out the site inspection, the police also recovered the cover of the knife (gupti) from the site which is Exhibit P-3. At the site the police also found footprints near the place of incident and lifted the footprints by plaster cast vide Exhibit P-10. It may be stated here that after the arrest of the accused appellant, the shoes which were worn by the accused appellant were also seized vide Exhibit P-11. The plaster cast and the shoes were sent for comparison to the Forensic Science Laboratory (F.S.L.) and the report of F.S.L. is Exhibit P-73 on record.
6. The accused is said to have given the information under Section 27 of the Indian Evidence Act after his arrest which is Exhibit P-69 and as a result of the same it led to the recovery of the gupti (knife) which was recovered at the instance of the accused appellant Mohsin and the recovery memo is Exhibit P-14 and the description of place along with site plan from where the recovery was made at the instance of the accused appellant is Exhibit P-15. At the time of arrest of the accused appellant Mohsin, a search was carried out of his person and he was found to be in possession of cash amounting to Rs.9,330/- which was seized vide Exhibit P-60. The police recorded the statement of the eye witnesses and since other accused persons were also figuring in the investigation carried out by the police, the police arrested the other accused persons namely Mohammad Zahid, Naseeb and Sayyed Mussavir Shah all residents of Tonk. All the four accused persons including the present appellant were charged with Section 302 read with Section 120-B I.P.C. and the present accused appellant was in addition charged with Section 302 and 177 I.P.C.
7. During the course of investigation by the police, since the accused appellant had been denying his identity as Mohsin, the police proceeded to investigate the identity of the accused appellant and in this connection went Bhopal as well as to Indore in Madhya Pradesh. The accused appellant had been giving various aliases and names and, therefore, it became imperative for the police to find his correct identity as according to the prosecution witnesses he had been in Tonk for a few days prior to the alleged incident and had disclosed his name as Mohsin resident of Bhopal in Tonk but after his arrest he gave his name as Munna @ Mushtaq resident of Indore. In this connection the police proceeded to Bhopal and contacted the local police there as well as the police at Indore after the police came to know that he was a resident of Indore. On being shown the photograph of the accused appellant which is Exhibit P-39 on record, the police officials PW-35 Chandra Kant and PW-36 Subhash Kumar Mishra identified the accused appellant to be Munna @ Mushtaq resident of Raoji Bazaar, Mohalla South Toda, Indore. PW-36 Subhash Kumar Mishra who was the S.H.O. of Police Station Raoji Bazaar, Indore after identification of the accused appellant disclosed to the Sub Inspector Narayan Singh Ratnu PW-30, who went to investigate the identity of the accused appellant, that the person shown in the photograph Exhibit P-39 was one Munna @ Mushtaq and that he was wanted in Criminal Case No.233/1994 for the offence under Section 307/34 I.P.C. The witness PW-36 also produced the relevant file i.e. the copy of Case Diary (Exhibit P-70) of the said case and its photostat copy is Exhibit P-70A, produced by the prosecution on record. The witness PW-36, the S.H.O. Raoji Bazaar, Indore, Madhya Pradesh also disclosed that the person in the photograph (Exhibit P-39) is accused appellant Mohsin. The accused appellant was also an accused in the Criminal Case No.44/1997 lodged by one Mohammad Salim under Section 307, 294, 34 and 302 I.P.C. The documents in that behalf are Exhibit P-71 and its photostat copy is Exhibit P-71A. Another fact which was disclosed by the witness PW-36 was that the photograph (Exhibit P-39) is that of the accused appellant Mohsin who had escaped from the custody of challani guard while under trial and a report to that effect was lodged on 06.05.1998 registered as Case No.97/1998 for the offence under Section 224 I.P.C. which report was produced as Exhibit P-72 on record. The witness PW-36 identified the photograph (Exhibit P-39) in court as the one which was brought by the witness PW-30 Narayan Singh Ratnu and shown him at Indore which is Exhibit P-39 on record. He also identified the accused appellant Mohsin, who was present in the court, as the person who is known as Munna alias Mushtaq and against whom the aforesaid cases were pending and who is shown in the photograph (Exhibit P-39).
8. PW-1 Matin Aadil, brother of the deceased Javed reiterated the story as given out in his report (Exhibit P-1) and stated that when he reached the deceased, the deceased told him that the person who was staying at the house of Mussavir was Mohsin and Mohsin has inflicted the blows with the knife (gupti) on him. He also disclosed that the deceased Javed told him that Mohsin and Naseeb had come to the construction site the previous day. This witness also stated that his sister PW-4 Nishat Rafi is married to Mohammad Zahid, the co-accused. He stated that the character of Mohammad Zahid was not good and, therefore, with a view to see to the interest of their sister, they had engaged Mohammad Zahid in the construction business as a construction contractor. He stated that deceased Javed Iqbal also used to tell Mohammad Zahid to mend his ways but this was not taken well by Mohammad Zahid and Mohammad Zahid as a result thereof decided to do away with Javed Iqbal and plotted his murder and in this connection hired the services of accused appellant Mohsin who was a notorious person of ill repute. This he came to know later on and that Mohammad Zahid hired the services of the accused appellant after having paid him sufficient amount. The witness PW-1 Matin Aadil identified the accused appellant as the one who was sitting on the pillion seat of the motorcycle being driven by the accused Naseeb on the fateful morning and he saw them when they overtake him.
9. The other witness who saw the incident is PW-18 Jameel Miyan. PW-18 Jameel Miyan stated that on 23.07.1998 he was working as Munshi with Javed Iqbal, the deceased and while he was at the site doing his work, PW-20 Prabhu Lal had come with his tractor. The deceased Javed was sitting under a neem tree. At about 8:00 - 8:30 in the morning, he heard the shouts of Javed and he saw that a hefty man was inflicting blows with a knife on Javed. The witness tried to chase the assailant but the assailant jumped over the wall and ran away. Javed got up from where he was sitting. He further stated that PW-1 Matin Aadil, PW-7 Riyaz Khan, PW-20 Prabhu Lal and he reached Javed and Javed was holding his chest and was screaming the name of Mohsin and stated that Mohsin had inflicted gupti blows on him and has run away. He further stated that PW-1 Matin Aadil told him to get a jeep immediately and he proceeded to get a jeep to take Javed to the hospital. At that point of time the deceased Javed became unconscious and they took him to the hospital in the jeep where Javed was declared dead. Pointing towards the accused appellant Mohsin in the Court the witness stated that he was the person who had inflicted the blows on Javed, the deceased and identified him as the assailant.
10. Among the eye witnesses PW-20 Prabhu Lal has also stated that he was at the site of the construction on 23.07.1998 and had come with his tractor to the site where the construction of the girls school was going on. He has corroborated the presence of PW-1 Matin Aadil and PW-7 Riyaz Khan. He further stated that a hefty man came there and met Javed and while they were talking he saw the hefty man take out a knife and inflict 3 or 4 blows on Javed Miyan, the deceased. Thereafter, that man ran away after having jumped over the wall. This witness has also stated that Javed, deceased, was giving out the name of Mohsin as the person who had inflicted the blows. He pointed out towards the accused appellant Mohsin, who was present in the court, to be the person whom he had seen inflicting the blows with the knife on Javed, deceased.
11. The other eye witness is PW-7 Riyaz Khan who has also corroborated the testimony of PW-1 Matin Aadil. He has stated that he was at the construction site of the girls school where Javed, deceased, was carrying out the construction and about 8:30 in the morning, he saw a motorcycle coming bearing registration No.RJ-26/M-3097 on which two persons were sitting. Naseeb was driving the motorcycle and behind him a hefty man was sitting. They stopped the motorcycle at the gate and the hefty person who was on the pillion seat proceeded and went towards Javed and after exchanging the pleasantries Javed asked the hefty man Mohsin how have you come. The two of them shook hands and suddenly the hefty man took out a knife from his pocket and inflicted blows on Javed (deceased) and immediately thereafter as the witness tried to proceed to assist Javed he saw the assailant jump over the wall and run away. He has also corroborated the fact that PW-18 Jameel, PW-1 Matin Aadil and PW-20 Prabhu Lal were at the site along with a few labourers. He has also stated that Javed (deceased) told the witness that Mohsin who is the friend of Mussavir had inflicted the blows with a knife and ran away. He further stated that soon after giving the aforesaid information Javed (deceased) became unconscious. He stated that Jameel brought a jeep and took Javed to the hospital where he was declared dead. He identified the accused appellant Mohsin as the person who was sitting on the pillion seat of the motorcycle behind Naseeb. This witness has also deposed that the Police lifted the footprints from the site of which the seizure memo is Exhibit P-10 which bears his signature at A to B. He is also the witness of the seizure memo of shoes of accused appellant which is Exhibit P-11.
12. Apart from this evidence of the eye witness, the other evidence produced by the prosecution is of PW-2 Shabbir Masood, brother of the deceased. This witness has deposed that his sister Nishat Rafi is married to Mohammad Zahid and Mohammad Zahid and his sister started to live in Mumbai. Thereafter, the brother-in-law Mohammad Zahid started indulging in bad habits and started to ill-treat his sister Nishat Rafi. It is said that Mohammad Zahid started indulging in drinking liquor as well as taking drugs and these facts were told by Nishat Rafi to her brothers. At this point of time, Mohammad Zahid shifted from Mumbai to Tonk but was not doing anything. Javed Iqbal (deceased) as a result thereof, with a view to help his sister and brother-in-law persuaded Mohammad Zahid to start a construction business so that he could set up his own work with his help. He further stated that there was an altercation between Mohammad Zahid and Javed (deceased) who wanted to take his sister Nishat Rafi to Jaipur to see a close relative who was unwell but Mohammad Zahid, her husband, was not agreeable and this resulted in altercation which led to animosity between the two and Mohammad Zahid threatened to take revenge. This witness has also stated that about seven or eight days prior to the incident in which Javed died, he had seen a stranger along with Mohammad Zahid, Mussavir and Naseeb and these persons were often seen in the bazaar. Pointing out towards the accused appellant Mohsin by touching him, the witness PW-2 stated that the stranger he saw is the person present in the court Mohsin, the accused appellant. He has further stated that on the day of incident i.e. 23.07.1998 when he learnt about the murder of Javed and when he went to the Kotwali after coming to know that the assailant had been arrested, he saw the same stranger - Mohsin, the accused appellant, present in the Kotwali.
13. Next prosecution witness is PW-3 Abdul Kalim who has stated that about 8:00 in the morning, he saw two persons on a motorcycle moving on the road coming from Sawai Madhopur to Tonk. The said motorcycle was being driven by Naseeb, the co-accused and Mohsin, the accused appellant was sitting on the pillion seat. He stated that when he came to the office in the market, he came to know about the murder of Javed Thekedar. On coming to know about the incident, he went to the hospital and found that Javed had in fact been murdered. He stated that later it was heard that Mohsin had murdered him. The only important thing which he has stated is that he has seen Naseeb and Mohsin going on the motorcycle on the fateful day towards the construction site where the murder took place. This is by way of corroboration by an independent witness from the side of prosecution.
14. The next witness produced by the prosecution is PW-4 Nishat Rafi wife of Mohammad Zahid, one of the co-accused, and sister of the deceased as well as PW-1 Matin Aadil and PW-2 Shabbir Masood. She has reiterated the facts which were given out by PW-2 her brother Shabbir Masood regarding the family life of the couple i.e. herself and Mohammad Zahid, the co-accused and how they were living in Mumbai and the accused Mohammad Zahid was indulging himself in bad habits of drinking liquor and addicted to drugs. She has also confirmed the incident of Javed wanting to take his sister to Jaipur where one of the nephews was to be operated and this having resulted in an altercation between the deceased and her husband Mohammad Zahid and Mohammad Zahid - the co-accused, threatening the deceased that he would take a revenge. It has come in the evidence that as a result of this quarrel, she came to live in her parental home but later a compromise was arrived at and she went to live in the matrimonial home with her husband. She has also stated that many a times she had seen Mussavir coming to her husbands house and that she knew Mussavir. She has also stated that her husband was well known to Mussavir. She has stated that about 15-20 days prior to the incident, a stranger had come with Mussavir to their house along with her husband Mohammad Zahid. She asked her husband regarding the identity of the stranger and her husband Mohammad Zahid told her that this person is an acquaintance from Bhopal and known to him as well as Mussavir. She has stated that these persons used to often come to the house and whenever she come with a cup of tea for them they would become silent in her presence. She identified the accused appellant Mohsin, present in the court, as the person who was the stranger and who was accompanying Mussavir and who had come with her husband to her house. It may be noted that this witness has deposed against her own husband who also faced trial along with the accused appellant as a co-accused. She has also stated that after the altercation between the deceased Javed and her husband Mohammad Zahid on the question of going to Jaipur, an agreement was arrived at between the families and she returned to her matrimonial home as a result thereof. The relevant portion of her statement reads as follows:-
"???? ?????? ????? ???? ?????? ????? ?? ?????? ?? ?? ???? ?? ?? ? ???? ??? ??? ???? ??? ?? ??? ???? ?? ??? ?? ? ???? ??? ???? ?? ?? ????????? ?? ???? ??? ?? ??? ???-???? ??????? ?? ??? ? ????? ?? 15-20 ??? ???? ???? ??? ? ?????????? ?? ??? ?? ????? ???? ??? ? ???? ?? ????? ?? ???? ??? ????? ?? ???? ??? ?? ????? ?? ?? ???? ? ?????????? ?? ?????? ?? ??? ????? ?? ????? ???? ?? ? ??? - ??? ??? ?? ??? ??? ?????? ??-?? ??? ???? ?? ??? ? ?? ??? ??? ??? ?? ??? ??? ????? ????? ?? ??? ??? ???? ????? ?? ?? ?????? ?? ???? ? ???? ?? ????? ????? ?????? ?????????? ?? ?? ????? ???? ????? ?? ??? ??????? ????????? ?? ??? ?? ???? ??? ? ???? ??? ?? ????? ???? ?????? ?? ?? ????? ????? ?? ?"
15. On being cross examined, the witness PW-4 Smt.Nishat Rafi has stated as follows:-
"?? ??? ?? ?? ??? ???? ?? ???????? ??? ????? ???? ??? ? ????????? ?? ??? ?? ????? ???? ?? ??? ?? ??? ??? ????? ??? ? ?? ???? ??? ?? ?? ???? ??? ?? ???? ????? ????????? ?? ????? ?? ???? ???? ???? ?? ??? ????? ?? ?"
16. Further in the cross examination this witness has stated as follows:-
"?? ??? ?? ?? ????? ?? ?? ??? ????? ???? ??? ??? ?? ?"
17. The next witness is PW-5 Shakeel who has corroborated the testimony of PW-4 Nishat Rafi regarding his intervention and mediation in arriving at the compromise between the families of the deceased and co-accused Mohammad Zahid, husband of PW-4 Nishat Rafi. He has also corroborated that as a result of his mediation, Nishat Rafi agreed to go and live with Mohammad Zahid.
18. So far as the preparation of site plan is concerned, the prosecution has produced PW-8 Mohammad Qamar Siddique as a witness before whom the site plan was prepared. This witness has stated that police had come to the spot and prepared the site plan (Exhibit P-2) which bears his signature at C to D. This witness has also deposed that the police recovered a case of a knife from the place of incident and the seizure memo of the same is Exhibit P-3 which also bears his signature. He has also stated that the police recovered a pair of leather slippers black in colour from the site and prepared the seizure memo Exhibit P-4. The police also took blood stained sand from the site of the crime and seized the same vide Exhibit P-5 which bears his signature.
19. The next important witness is PW-13 Mohammad Anees who is the Head Constable in the S.P.Office. He took the photographs of the site as well as more importantly the photographs of the accused appellant Mohsin which is Exhibit P-39 and the negative is P-40. He has also lifted the footprints of the shoe marks from the spot on 23.07.1998. A few other witnesses were examined by the prosecution who turned hositle. These witnesses were examined with a view to prove the fact that the accused appellant had come and stayed at the house of Mussavir, the co-accused.
20. The Doctor, who conducted the post-mortem, is PW-28 who has stated that he conducted the post-mortem of the deceased on 23.07.1998. He has stated that the injuries on the person of the deceased were ante-mortem in nature and that the deceased died as a result of the injuries which were stab wounds and incised wounds three in number. The injuries were all on the chest and were sufficient in the ordinary course to cause death. He has also stated that these injuries could be caused by a weapon such as the gupti, having sharp edges on both sides. The important thing which this witness stated is as follows:-
"?? ???? ???? ?? ??? ??? ????????? ????? ???? ?? ???? ??????? ??? ???? ?? ?"
21. He has further stated on being cross examined as follows:-
"?? ??? ?? ?? ???? ?? ??? ??? ???? ?? ???????? ?? ??? ???? ?? ???? ?? ??????? ??? ???? ?"
22. The next witness is PW-30 Narayan Singh Ratnu, the Police Officer who was sent to Bhopal and Indore to carry out the investigation with regard to identity of the accused appellant. He has stated that he went to Bhopal for confirming the identity of the accused appellant Mohsin at the address given by him at the time of his arrest and had taken with him the coloured photograph (Exhibit P-39) of the accused appellant Mohsin on the orders of the courts. He has stated that he went to Kotwali of Bhopal and one Balli, on seeing the photograph told the witness that the name of the person in the photograph is not Mohsin but Munna who is resident of Indore of South Toda Basti. He also deposed that Balli told him that he identified the accused since he and Munna had been lodged in jail together. The witness thereafter stated that he proceeded to Indore where he contacted the Raoji Bazaar Police Station and was told that person whose photograph (Exhibit P-39) he was carrying was in fact Munna @ Mushtar and he lives behind Prem Sukh Talkies in South Toda Basti of Raoji Bazaar, Indore (M.P.) and against whom several cases are pending. He stated that he contacted Mr.Dubey, ASI and went to South Toda Basti and found that the name of the person whose photograph he was carrying was in fact Munna @ Mushtar. He also took the copy of the ration card from his house and the police record from the Police Station Raoji Bazaar, Juni Indore and Police Station Pundrik, the certified copies of which are Exhibits P-65 and P-66 on record. He also recorded the statement under Section 161 Cr.P.C. of the concerned police officials namely Shri Chandrakant Bhamre, Rajesh Singh and Subhash Kumar Mishra. He submitted his report to the S.H.O., Police Station Kotwali, Tonk on returning and disclosed that the accused Mohsin's correct name is Munna @ Mushtar @ Mushtaq, resident of Plot No.35/25, Behind Prem Sukh Talkies, Police Station Raoji Bazaar, Indore (M.P.).
23. The two other witnesses are PW-33 Kishanlal and PW-34 Radheyshyam Sharma. PW-34 Radheyshyam Sharma was the S.H.O., Kotwali, Tonk on 23.07.1998 and carried out the investigation in the initial stages. After his transfer, PW-33 Kishanlal was posted as S.H.O. on 24.08.1998. PW-34 Radheyshyam Sharma has deposed the facts relating to the recording of FIR and having received the information with regard to the incident that a person had been stabbed and injured. He has then deposed that he reached the spot where he was informed that Javed had been stabbed and that his brother had taken him to the hospital. He has then deposed that the report was lodged with him which is Exhibit P-1 which he sent to the Police Station with the Constable Birda Ram. He has also stated that he sent QST message with the description of the accused persons for their arrest. He has also stated that the footprints from site were lifted and sealed vide Exhibit P-10. He has also stated that after the arrest of the accused appellant Mohsin, he seized the shoes worn by the accused appellant vide Exhibit P-11. At the time of his arrest, Mohsin was in possession of Rs.9,330/- which were seized vide Exhibit P-16. He has also deposed with regard to the information furnished by the accused Mohsin and the recovery memo based upon the aforesaid information Exhibit P-69 and Exhibit P-14.
24. After the evidence of prosecution was recorded, the statements of accused appellant was recorded under Section 313 Cr.P.C. by the learned trial court where he has given his name as Munna @ Mushtar son of Ahmed Hussain. He deposed that he had been travelling from Jaipur to Kota when he was detained and taken into custody. He has stated that he told the police that his name was not Mohsin but the police did not hear him. He denied having committed any offence and claimed trial.
25. The learned trial court after hearing the counsel of the accused and the learned Public Prosecutor vide the impugned judgment dated 25.01.2001 convicted all the four accused persons namely Mohammad Zahid, Naseeb, Sayed Mussavir Shah and the accused appellant Mohsin son of Ahmed Hussain @ Mohammad Hussain for the offence under Section 302 read with Section 120-B I.P.C. and in addition the accused appellant was also convicted under Section 302 I.P.C.
26. All the accused persons except the present appellant Mohsin preferred separate Criminal Appeals before this court viz., D.B.Criminal Appeal No.97/2001 was filed by the accused Naseeb; D.B.Criminal Appeal No.200/2001 was filed by Mohammad Zahid; and D.B.Criminal Appeal No.77/2001 was filed by Sayed Mussavir Shah. The accused appellant did not prefer any appeal against the judgment dated 25.01.2001 at that time.
27. This court heard the aforesaid three appeals filed by the accused persons Naseeb, Mohammad Zahid and Sayed Mussavir Shah and decided the same vide common judgment dated 05.04.2007 and allowed the same. Since the conviction of the accused Naseeb, Mohammad Zahid and Sayed Mussavir Shah was under Section 302 read with Section 120-B I.P.C., this court after examining the evidence came to the conclusion that the prosecution evidence failed to prove the theory of conspiracy and acquitted all the three appellants. The said judgment reads as follows:-
9. In the instant matter we find that the prosecution could not prove that the appellants had ever conspired with Mohsin to kill Javed Iqbal. Neither direct evidence is available nor the conspiracy between the appellants and Mohsin can be inferred by necessary implication. In such a situation the impugned finding of the learned trial Judge qua the appellants is not sustainable and we accordingly quash it.
10. For these reasons, we allow the appeals and acquit the appellants Mohammad Zahid, Nasib and Sayed Musavvir Shah of the charge under section 302 read with 120B IPC. The appellant Sayed Musavvir Shah is on bail, he need not surrender and his bail bonds stand discharged. Appellants Mohammad Zahid and Nasib, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case.
28. It appears that after the aforesaid judgment acquitting the co-accused persons of the charge under Section 302 read with Section 120-B I.P.C., the accused appellant Mohsin filed the present appeal before this court on 01.09.2008 along with an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. This court vide order dated 04.03.2009 condoned the delay and admitted the appeal. It is in these circumstances that the present appeal has come up for consideration before this court.
29. The submission of the learned counsel for the appellant is that the accused was not known to the witnesses and, therefore, it was incumbent upon the prosecution to have carried out the test identification parade and in the absence of the same the mere identification of the accused appellant Mohsin in court cannot be held to be sufficient. He has further submitted that this assumes importance more so when the name of the accused is said to have been disclosed as Mohsin whereas in fact even as per the prosecution evidence the name of the accused appellant is Munna @ Mushtar @ Mushtaq and, therefore, mere disclosure of the name Mohsin by the prosecution witnesses is fatal to the prosecution. Learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Sonu Kumar Vs. State of Himachal Pradesh reported in 2009(1) Rajasthan Judicial Times 620. In the aforesaid judgment in para 6, the Hon'ble Supreme Court while dealing with the aforesaid question has held as follows:-
6. It is not disputed by learned counsel for the State that unlike some others the appellant was not caught at the place of occurrence. The Trial Court had itself held that there was no test identification parade in the eye of law. Therefore, identification of the appellant for the first time in Court was really of no consequence. Added to that, the only evidence pressed into service by the prosecution so far as the appellant is concerned, was that his name was similar to one of the names which the accused persons were addressing each other, as stated by the prosecutrix. That cannot be by any stretch of imagination an incriminating material.
30. So far as the above contention is concerned, it may be recalled here that the name of the accused appellant Mohsin was given out by the deceased Javed to PW-1 Matin Aadil, the brother of the deceased who had reached the spot before the deceased passed away. Not only did the deceased gave the name of Mohsin as the person who had inflicted the injuries but also described that Mohsin was the person who was staying at the house of Mussavir. The deceased also told Matin Aadil that Mohsin had inflicted the injury by gupti on him. The deceased also told PW-1 Matin Aadil that Mohsin had come with Naseeb on the previous day on the construction site and surveyed the site. This fact was disclosed by PW-1 Matin Aadil at the earliest at 9:35 AM, just an hour after the alleged incident which is said to have taken place at about 8:00 8:30 in the morning when the FIR (Exhibit P-1) was lodged by PW-1 Matin Aadil.
31. The fact that the deceased Javed had disclosed the name of assailant as Mohsin as the person who had inflicted the injuries and that Mohsin had been residing for the last few days at the residence of Mussavir, has been stated by PW-1 Matin Aadil, the author of FIR as well as by other eye witnesses namely PW-7 Riyaz Khan, PW-18 Jameel Miyan and PW-20 Prabhu Lal. Apart from the above evidence, there is evidence of PW-4 Nishat Rafi, sister of the deceased and who is married to the co-accused Mohammad Zahid. PW-4 Nishat Rafi has stated that after the compromise was arrived at between her husband and her family members and she having returned to her matrimonial home to live with Mohammad Zahid, the frequencey of visits of Mussavir to her house increased and about 15-20 days prior to the murder of Javed, a stranger had come along with Mussavir to meet her husband Mohammad Zahid. On enquiry, her husband Mohammad Zahid told her that the stranger was a friend of Mussavir and had come from Bhopal and his name was Mohsin. She had identified that stranger to be the person who is present in court who was none other than Mohsin, the accused appellant. Similarly, as has been quoted hereinabove she denied the suggestion in her cross examination by the accused that it was wrong to suggest that she had given a wrong statement about the fact of a stranger having come to meet her husband along with Mussavir about 15 days prior to the incident. She also refuted the suggestion that it was wrong to suggest that her husband told her that the said stranger had come from Bhopal. She also denied the suggestion that the stranger had never come to her house to meet her husband. She also denied the suggestion that Mohsin had never come to her house or that her husband had never disclosed the name of the stranger to be Mohsin. She asserted that because of the fact that her husband had disclosed the name of the stranger as Mohsin, she is referring to him as Mohsin. She also denied the suggestion that she is referring the accused appellant who was a stranger as Mohsin only on account of the fact that her brother told her to do so. Apart from the above evidence, there is also the evidence of PW-2 Shabbir Masood. PW-2 Shabbir Masood in his statement has also stated that prior to the murder of his brother Javed, he had seen Mohammad Zahid and Mussavir with a stranger and that stranger is none other than the accused appellant Mohsin, present in court. There is, therefore, the evidence to the effect that the accused appellant Mohsin had been living in Tonk some 15 or 20 days prior to the murder of Javed and had been frequenting the house of Mohammad Zahid, husband of PW-4 Nishat Rafi and her husband had disclosed his name as Mohsin. It has come in the statement of PW-1 Matin Aadil that Mohsin along with Naseeb and Mussavir used to frequently come to the house of Mohammad Zahid and his sister PW-4 Nishat Rafi. He has denied the suggestion that he has seen Mohsin, accused appellant for the first time in the court and that the person present in the court (Mohsin) is not the person who had inflicted injuries to Javed (deceased). This statement is also corroborated by PW-2 Shabbir Masood. Thus, so far as the question of identity not being known to the deceased or to the witnesses PW-1 Matin Aadil, PW-2 Shabbir Masood and PW-4 Nishat Rafi, who were the brothers and sister of the deceased and brother of the wife of co-accused Mohammad Zahid namely PW-4 Smt.Nishat Rafi cannot be accepted. The duration of 15-20 days during which the accused appellant was in Tonk is sufficient as has been given out by the prosecution evidence for the witnesses to have come in contact with the accused appellant Mohsin in view of the facts and circumstances which have come on record. It was, therefore, possible for them to have given out the name of the accused appellant in the FIR and in their statement to the police and before the court and also to identify him in the court as the person who had given out his name as Mohsin being a resident of Bhopal as had been disclosed by him in Tonk.
32. The fact that the identity of the accused appellant Mohsin was disclosed in the FIR as well as in the statements under Section 161 and in the statements in court, in the facts and circumstances of the present case is sufficient for the witnesses to have identified the accused appellant by name. In that view of the matter, mere failure to hold an identification parade would not make the evidence of prosecution inadmissible. The Hon'ble Supreme Court in the case of Kanta Prashad Vs. Delhi Administration reported in AIR 1958 SC 350 had held in para 5 of the report as follows:-
5. As for the test identification parade, it is true that no test identification parade was held. The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance. It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.
33. From the above it becomes clear that what weight can be attached to the evidence relating to identification would depend on the quality and totality of the evidence led by the prosecution in the court from the evidence which has been discussed above, we are of the view that the mere fact that a test identification parade was not held in the instant case, in the facts and circumstances, which have come on record cannot be said to have been fatal to the prosecution case.
34. Learned counsel for the appellant sought to contend that in view of the prosecution evidence that the name of the appellant is in fact not Mohsin but Munna @ Mushtar @ Mushtaq, the identification of the accused and he being described by the prosecution witnesses as Mohsin is of no consequence. So far as the above contention is concerned, suffice it to say that the prosecution has with a view to ascertain the identity of the accused appellant after his arrest, since the accused appellant had been giving a different name than the one pointed out by the prosecution witnesses in the FIR and in the statements under Section 161 Cr.P.C. decided to investigate and proceed to Bhopal and Indore to ascertain the identity of the accused appellant. For this purpose, the Investigating Officer also got the accused appellant photographed which is Exhibit P-39 which was given to PW-30 Sub Inspector Narayan Singh Ratnu who was sent to Indore and Bhopal for this purpose. In Bhopal and in Indore PW-30 Narayan Singh Ratnu contacted the various police officers including PW-35 and PW-36. He showed the photograph (Exhibit P-39) to these police officers who had the occasion to earlier deal with the accused appellant who had been arrested in the cases filed at Indore. It has come in the evidence of PW-35 and PW-36 that the person in the photograph (Exhibit P-39) is none other than the accused appellant Mohsin and they have identified him in court as well as to be the same person whose photograph (Exhibit P-39) was shown to them and who is wanted in cases registered at Indore in Madhya Pradesh and is an accused in the aforesaid cases, details of which find mention in Exhibits P-70, P-70A, P-71 and P-71A and that on 06.05.1998 Munna @ Mushtar @ Mushtaq escaped from the custody and for which a separate case under Section 224 I.P.C. has been registered against him. The details of the case have been mentioned in Exhibits P-72 and P-72A. It was, therefore, obvious that having escaped from custody of Police Station, Raoji Bazaar, Indore on 06.05.1998 the accused appellant, against whom a case under Section 307, 294, 34 and 302 I.P.C. was already pending in which he had been arrested by the Indore Police, reached Tonk supressing his actual identity and giving a false identity by the name of Mohsin resident of Bhopal. The mere fact that the accused appellant after his arrest gave his correct identity to the police as Munna @ Mushtar @ Mushtaq resident of Indore only shows that having known that after the commission of crime at Tonk, the police would be looking for Mohsin resident of Bhopal, he could safely evade arrest in the present case after disclosing his correct identity as Munna @ Mushtar @ Mushtaq resident of Indore, which he in fact was. Thus, the submission of the learned counsel for the accused appellant was based upon the disclosure of the correct identity as Munna @ Mushtar @ Mushtaq cannot be availed of by the accused to his advantage. It was only natural that having escaped from custody on 06.05.1998 i.e. merely two months before murder of Javed at Tonk at the hands of appellant on 23.07.1998, the appellant with a view to evade his arrest had not disclosed his true identity and had in fact assumed the name Mohsin, resident of Bhopal for this purpose while he was in Tonk for about 15-20 days preceding the murder of Javed. Thus, for the prosecution witnesses who have known that the name of the accused appellant was Mohsin was natural in the facts and circumstances of the present case.
35. Learned Public Prosecutor also during the course of hearing brought to our notice that the accused appellant has been convicted for the offence under Section 302 I.P.C. by the court at Indore vide judgment dated 13.08.2002. Be that as it may, so far as the facts and circumstances of the present case are concerned, we are of the view that mere fact that test identification parade was not carried out in the present case would not be sufficient to bring out such a lacuna in the prosecution case so as to give the benefit to the accused appellant as we find in the facts and circumstances of this case that there is enough evidence to link the accused appellant with the crime and also there is enough evidence to bring out the fact that identity of the accused appellant Mohsin was known to the witnesses and particularly the deceased before the commission of offence on 23.07.1998 and he had disclosed the name of the assailant to PW-1 Matin Aadil.
36. In the facts and circumstances, therefore, while relying upon the judgment in Kanta Prashad's case (supra) the aforesaid contention of the learned counsel for the appellant is rejected as the totality of the prosecution evidence when seen does not caste any doubt in our minds that the identity of the accused was not known to the prosecution witnesses.
37. Learned counsel for the accused appellant next contended that the prosecution connected the accused appellant with the offence on the basis of footprints which were taken on the spot. Learned counsel submitted that conviction cannot be based upon the report of Forensic Science Laboratory merely based upon the similarity of footprints lifted from the spot and those of the shoes which the accused appellant was wearing at the time of his arrest. He has relied upon the judgment of this court in the case of Jeet Ram Vs. State of Rajasthan reported in 1987 Cr.L.R. (Raj.) 692. In the instant case, the footprints which is the shoe-mark said to be of accused appellant was lifted from the scene of occurrence vide Exhibit P-10 and after lifting the said footprints in a plaster cast, the mould was sealed in a packet and marked as C-1. At the same time, after the arrest of the accused appellant, the shoes which the accused appellant Mohsin was wearing were seized and sealed vide Exhibit P-11 in a packet and marked as C-2. These two packets were sent to Forensic Science Laboratory and receipts obtained on 25.09.1998 which are Exhibit P-63 on record. The report of the Forensic Science Laboratory has been produced by the prosecution as Exhibit P-73. In the said report of Forensic Science Laboratory while describing the packets received, it has been recorded that the packets marked as C-1 and C-2 were properly sealed and the impression of the seal tallied with the specimen seal impression forwarded to the Forensic Science Laboratory. The report states that packet C-1 contained a Plaster of Paris mould alleged to be of right foot impression and the packet C-2 contained a brown coloured sports shoes which as per the prosecution was seized from the accused appellant at the time of his arrest. The result of the examination was that the sole impression in the mould contained in Exhibit C-1/1 is similar to the sole impression of the shoe of C-2/R in respect of the shape, design and dimensions. However, the heel portion of the shoe sole (Exhibit C-2/R) has some defect which could have appeared later on.
38. As against the aforesaid, the facts of case of Jeet Ram (supra), relied upon by the learned counsel for the appellant, are completely different. In para 9 of the said report, it has been noted by the court as follows:-
9. We shall first take the evidence relating to foot-prints.It was argued by the learned amicus curiae that the moulds of the foot-prints prepared at the site and the moulds of the specimen foot-prints prepared in the presence of the judicial magistrate PW-7 Mr.Puniya were not produced as material exhibits during trial by the prosecution. It cannot be, therefore, said that the moulds received in the Forensic Science Laboratory were the moulds prepared on the spot and prepared in the presence of the magistrate. It was argued that it was incumbent on the prosecution to have produced these moulds as material exhibits in the court for their identification by the witnesses and the Magistrate......
39. Reference was then made by the court to Rule 6.26 of he Rajasthan Police Rules, 1965 and an earlier decision of this court in Harjiram Vs. State of Rajasthan reported in 1985 Cr.L.R.(Raj.) 47 where this Court took into account the provisions of Rule 6.26 of Rajasthan Police Rules, 1965. However, the facts of the present case are totally distinct from the facts of Jeetram's case (supra). Para 12 of the judgment of Jeetram's case (supra) makes out a clear distinction. In para 12 of the report of Jeetram's case, this court while dealing with the facts of the case recorded as follows:-
12. Apart from that, the evidence relating to moulds of the foot prints found on the site is not of much help to the prosecution. The accused and the deceased were working together in the fields of PW-2 Loona Ram the accused being his share-cropper and the deceased being his labourer. The deadbody was found in the junction of the channels in the fields of PW-2 Loonaram. The accused was working there. As such, there was nothing unusual that his foot-prints were found there in the fields. The presence of the foot-prints of the accused would have assumed some importance if the murder was committed at some other place where the presence of the accused was not, normally, expected. The presence of the foot-marks of the accused in the fields where he was working as share-cropper has no unusual phenomena. The evidence relating to foot-prints is, therefore, of no material help to the prosecution, and does not furnish much incriminating evidence against the appellant.
(Emphasis supplied.)
40. Thus, the judgment of Jeetram (supra) is totally distinguishable on facts and also so far as the reasoning given in the aforesaid judgment to discard the evidence relating to footprints is on the basis of the peculiar facts and circumstances of that case as has been recorded in para 12. Taking into account the reasoning of the court in Jeetram's case (supra) in the case where the site from which the footprints are lifted must not be such where accused had the opportunity to be present frequently. In Jeetram's case (supra) the accused and the deceased were working together in the same field and the accused had every reason to be present in the field along with the deceased. In the facts and circumstances of the present case, the scene of occurrence is the construction site where the deceased Javed was carrying out his construction work of girls school and the accused appellant Mohsin @ Mushtar @ Mushtaq who is not even a local resident had no occasion to be present at the construction site, the scene of the crime. Thus, in the facts and circumstances of the present case itself, Jeetram's case is totally distinguishable from the facts of the present case.
41. That apart in the instant case, sufficient care has been taken by the prosecution while lifting the footprints from the scene of occurrence vide Exhibit P-10 and while seizing the shoes which the appellant was wearing at the time of his arrest in both the cases, the witnesses are the same, namely Raza Khan and Riyaz Khan. The prosecution has examined Riyaz Khan as PW-7 and Raza Khan as PW-12. PW-7 has proved Exhibit P-10 and the fact of taking the footprints from the site as well as the seizure of pair of shoes worn by the accused appellant at the time of his arrest vide Exhibit P-11. He has also stated that after the seizure vide Exhibits P-10 and P-11, the moulds, as well as the shoes were packed in bags and sealed. Likewise PW-12 Raza Khan has also proved the lifting of footprints and sealing of mould vide Exhibit P-10 and seizure of the shoes from the accused appellant Mohsin whom he identified as the person whose shoes had been seized and sealed by the police vide Exhibit P-12. Thus, the police took care to comply with the Rule 6.26 of which reliance was placed in Jeetram's case (supra) of having the same set of witnesses both at the time while lifting the prints and preparing the mould from scene of crime and sealing them and also at the time of seizure of shoes worn by the accused appellant at the time of his arrest.
42. In the facts and circumstances of the present case, therefore, the mere fact that moulds have not been produced at the time of trial of the case would not give any benefit to the appellant as that cannot be said to be such a lacuna on the part of prosecution so as to nullify the aforesaid set of evidence.
43. It is no doubt true that the learned trial court has not accepted the fact of recovery of weapon of offence at the instance of the accused appellant. Learned counsel for the appellant sought to submit that the charge interalia was one under Section 302 read with Section 120-B I.P.C. of conspiracy to commit murder of Javed (deceased) along with co-accused Mohammad Zahid, Naseeb and Sayed Mussavir Shah. Learned counsel for the appellant submitted that so far as these three co-accused persons are concerned, they had preferred appeals before this court being D.B.Criminal Appeal No.97/2001 - filed by Naseeb; D.B.Criminal Appeal No.200/2001 - filed by Mohammad Zahid; and D.B.Criminal Appeal No.77/2001 - filed by Sayed Mussavir Shah and appeals filed by all these accused persons was allowed by this court vide common judgment dated 05.04.2007. It was submitted that so far as the charge of conspiracy under Section 120-B I.P.C. is concerned that was held to be not proved and since the three co-accused persons had been convicted under Section 302 read with Section 102-B I.P.C., their appeals were allowed and they were acquitted of the charge. Learned counsel for the appellant, therefore, submitted that so far as the present appellant is concerned, on the basis of the acquittal of the co-accused persons by this court vide common judgment dated 05.04.2007 holding that conspiracy has not been proved, the appellant be given the benefit of the said judgment and findings given in the same.
44. We have considered the aforesaid question and we find that so far as the accused appellant is concerned, he has been charged under Section 302 I.P.C. separately for the offence of murder of Javed (deceased) as well as with the other co-accused persons under Section 302 read with Section 120-B I.P.C. While this court has not accepted the prosecution case of conspiracy, we are inclined to accept the appeal of the appellant only to the extent of his conviction under Section 302 read with Section 120-B I.P.C.
45. As we have discussed above, there is ample evidence on record to prove that the accused appellant had committed murder of Javed (deceased) and was seen by eye witnesses PW-1 Matin Aadil, PW-7 Riyaz Khan, PW-18 Jameel Miyan and PW-20 Prabhu Lal. Thus, his conviction for the offence under Section 302 I.P.C. is maintained.
46. In the facts and circumstances of the present case, therefore, we uphold the conviction and sentence of the accused appellant under Section 302 I.P.C. We set aside the sentence of the accused appellant under Section 302 read with Section 120-B I.P.C. The D.B.Criminal Appeal No.1021/2008 is partly allowed, as indicated above.
D.B.CRIMINAL JAIL APPEAL [DEFECT NO.0494/2008]
47. In view of the decision in D.B.Criminal Appeal No.1021/2008, this jail appeal is not required to be decided separately. Consequently, the same is disposed of in the light of the aforesaid judgment.
(K.S.CHAUDHARI),J. (DALIP SINGH),J. Solanki DS, Jr.P.A