Rajasthan High Court - Jaipur
Liyakat Khan Son Of Bashrat vs State Of Rajasthan on 12 December, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:37110-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 817/2013
1. Shaukat Ali son of Bashrat Khan
2. Shakila Bano wife of Liyakat Ali
3. Abid Ali son of Ummed Khan
all residents of Chainpura, Police Station, Malsisar, District
Jhunjhunu (Rajasthan) (At present confined in District Jail,
Jhunjhunu)
----Appellants
Versus
The State Of Rajasthan Through Public Prosecutor
----Respondent Connected With D.B. Criminal Appeal (Db) No. 259/2023 Liyakat Khan Son Of Bashrat, Aged About 50 Years, Resident Of Chainpura, Police Station Malsisar, District Jhunjhunu (Rajasthan). At Present Confined In District Jail Jhunjhunu.
----Appellant Versus State Of Rajasthan, Through Public Prosecutor.
----Respondent
For Appellant(s) : Mr. Amil Ali, Adv. for appellant Nos.1
& 3 in Crl.A. No.817/2013
Mr. Rahul Sharma, Adv. on behalf of
Mr. Rajneesh Gupta, Adv. for
appellant No.2 in Crl.A. No.817/2023
Mr. Girraj Prasad Gadhwal, Adv. for
appellant in Crl.A. No.259/2023
For State : Mr. Javed Chaudhary, Addl.G.A.
For Complainant(s) : Mr. D.V. Tholia, Adv. with Mr.
Himanshu Tholia in Crl.A.
No.817/2023
Ms. Karishma Rathore, Adv. for Mr.
Arun Singh Shekhawat, Adv. in Crl.A.
No.259/2023
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
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[2023:RJ-JP:37110-DB] (2 of 14) [CRLA-817/2013]
Judgment
RESERVED ON :: 28/11/2023
PRONOUNCED ON :: 12/12/2023
(Per - Hon'ble Pankaj Bhandari, J.)
1. Accused appellants - Shaukat Ali, Shakila Bano and Abid Ali have preferred D.B. Criminal Appeal No.817/2023 titled as Shaukat Ali & Ors. Versus State of Rajasthan through PP aggrieved by the judgment of conviction and order of sentence dated 31.10.2013 passed by the Additional Sessions Judge No.2, Jhunjhunu whereby the appellants have been convicted for offence under Sections 302, 302/120-B of Indian Penal Code (hereinafter referred to as "IPC") and sentenced as under:-
(i) Accused appellants - Shaukat Ali and Abid Ali each have been sentenced for offence under Section 302 of IPC for rigorous life imprisonment and a fine of Rs.10,000/-; in default of payment of fine, to further undergo 1 year simple imprisonment each.
(ii) Accused appellant - Shakila Bano has been sentenced for offence under Section 302/120-B of IPC for rigorous life imprisonment and a fine of Rs.5,000/-; in default of payment of fine, to further undergo 1 year simple imprisonment.
2. Accused appellant - Liyakat Ali has preferred D.B. Criminal Appeal No.259/2023 titled as Liyakat Ali Versus State of Rajasthan through PP aggrieved by the judgment of conviction and order of sentence dated 29.08.2023 passed by the Additional Sessions Judge No.2, Jhunjhunu, whereby he has been convicted for the (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (3 of 14) [CRLA-817/2013] offence under Section 302 read with Section 120-B of IPC and sentenced for life imprisonment and a fine of Rs.5,000/-; in default of payment of fine, to further undergo 6 months simple imprisonment.
3. Succinctly stated the facts of the case are that on 15.01.2010, complainant - Banwari Lal submitted a written report alleging therein that on 14.01.2010 in the mid night at 12:00 they were holding a meeting with regard to elections, when Liyakat Ali and Shaukat Ali came and asked his brother - Jai Singh to come for a meeting, upon which, he along with his brother went to their house. Liyakat Ali and Shaukat Ali told him to go home and that Jai Singh would return after sometime. In the morning, it was revealed that Jai Singh was murdered by Liyakat Ali, Shaukat Ali and other persons and the dead body was lying in their house. On the basis of the said written report, FIR bearing No.5/2010 was registered for offence under Section 302 of IPC.
4. The police after due investigation filed charge-sheet against accused appellants - Shaukat Ali, Abid Ali and Shakila Bano and kept the investigation pending under Section 173(8) of Cr.P.C. with regard to accused appellant - Liyakat Ali. Learned Trial Court framed charges against accused appellants - Shaukat Ali, Abid Ali for offence under Sections 302 or 302/120-B of IPC and against accused appellant - Shakila Bano for offence under Section 302/120-B of IPC. Accused appellants - Shaukat Ali, Abid Ali and Shakila Bano denied the charges and sought trial, upon which, 19 witnesses were examined and 91 documents were exhibited on (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (4 of 14) [CRLA-817/2013] behalf of the prosecution. In defence, Exhibit-D1 to Exhibit-D3 were exhibited. Accused appellants - Shaukat Ali, Abid Ali and Shakila Bano were examined under Section 313 Cr.P.C. wherein they denied the allegations levelled against them. Learned Trial Court after hearing the arguments has convicted and sentenced the accused appellants - Shaukat Ali, Abid Ali and Shakila Bano as stated above, aggrieved by which, they have preferred D.B. Criminal Appeal No.817/2013.
5. Accused appellant - Liyakat Ali was arrested when he returned from abroad. Additional charge-sheet was filed against him. He was charged for offence under Section 302/120-B of IPC. He denied the charges and sought trial, upon which, 15 witnesses were examined, 68 documents were exhibited and 7 articles were produced on behalf of the prosecution. Accused appellant - Liyakat Ali was examined under Section 313 Cr.P.C. Learned Trial Court after hearing the arguments has convicted and sentenced accused appellant - Liyakat Ali as stated above, aggrieved by which, he has preferred D.B. Criminal Appeal No.259/2023.
6. Since both the appeals arise out of a common FIR, they are being decided together. However, since separate trial took place with regard to accused appellant - Liyakat Ali and separate evidence was adduced, we would deal with the evidence separately.
7. It is contended by learned counsel appearing for accused appellant - Shaukat Ali that the dead body was recovered from the house of Liyakat Ali. The recovery of gun does not connect (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (5 of 14) [CRLA-817/2013] Shaukat Ali with the alleged offence as it was not established that the pellets, which were fired, were fired from the recovered gun. It is also contended that the pellets were not recovered from the body of the deceased and therefore, same could not be sent to FSL for examination and nor could be matched with the cartridges recovered from Shaukat Ali. It is further contended that there was no blood group found matching to establish that the blood stains found on the shirt recovered at the instance of Shaukat Ali was having blood of the deceased.
8. It is contended by learned counsel appearing for accused appellant - Abid Ali that in the initial FIR, name of accused appellant - Abid Ali was not mentioned. It is also contended that as per the version of the prosecution, the sword was already washed before it was recovered. The report of the FSL that it was having human blood thus, cannot be believed.
9. It is contended by learned counsel appearing for accused appellant - Shakila Bano that recovery of 2 mobile phones at her instance would not connect her with the alleged offence. There is no allegation that she inflicted any injury to the deceased. It is also contended that offence of criminal conspiracy is not made out and the conviction with the aid of Section 120-B of IPC was not justified. It is further contended that no Certificate under Section 65-B of the Evidence Act was produced to establish that the mobiles, which were recovered at the instance of accused appellant - Shakila Bano, were used. It is further contended that it was not established that mobiles which were recovered at the (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (6 of 14) [CRLA-817/2013] instance of accused appellant - Shakila Bano, belonged to the deceased as no identification by any family member of the deceased was done. It is contended on behalf of accused appellants - Shaukat Ali, Abid Ali and Shakila Bano that the deceased died in the gallery in front of the house of accused appellant - Liyakat Ali and it is a clear case of the accused appellants that someone fired from outside.
10. It is contended by learned counsel appearing for accused appellant - Liyakat Ali that he was living abroad, which fact has been admitted by the Investigating Officer. It is not established that on the date of the alleged offence, Liyakat Ali was in the village. It is also contended that the Certificate produced on behalf of the prosecution wherein it is mentioned that Liyakat Ali came to India on 13th January, became a member of unlawful assembly on 14th January and after committing the alleged offence, left India on 16th January, is not established as the person, who has given the Certificate, has not been examined before learned Trial Court. It is further contended that the deceased was having relations with the wife of Liyakat ali and when Shaukat Ali told him to stay away from Shakila Bano, a dispute took place, on which Shaukat Ali opened fire at the deceased. It is also contended that even otherwise, no role has been assigned to Liyakat Ali with regard to the injuries sustained by the deceased.
11. Learned counsel for the accused appellants have relied upon the judgments in Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Versus State of Maharashtra: 2011 (Suppl.) Cr.L.R. (SC) 562; (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (7 of 14) [CRLA-817/2013] Ganesh Gogoi Versus State of Assam: 2009 Cr.L.R. (SC) 771; Gambhir Versus State of Maharashtra: 1982 Cr.L.R. (S.C.) 275; Sunil Kundu & Anr. Versus State of Jharkhand: 2013 Cr.L.R. (SC) 758; Bhalinder Singh @ Raju Versus State of Punjab: 1994 Cr.L.R. (S.C.) 62; State (Delhi Administration) Versus Shri Gulzari Lal Tandon: 1979 Cr.R.L. (SC) 448; Subhash Chand Versus State of Rajasthan: 2001 Cr.L.R. (SC) 670; Nasasaheb Changdeo Nikam Versus The State of Maharashtra: Criminal Appeal No.122 of 2018 decided by Bombay Bench at Aurangabad on 06.11.2023; State Versus Nunshi Singh: Criminal Appeal No.227 of 1984 decided by Rajasthan High Court on 16.04.2009 and Ramreddy Rajeshkhanna Reddy & Anr. Versus State of Andhra Pradesh: 2006 Cr.L.R. (SC) 333.
12. Learned Additional Government Advocate and learned counsel appearing for the complainant have opposed the appeals. It is contended that there is specific evidence of Banwari Lal that the deceased was called to the house of Liyakat Ali by Shaukat Ali and Liyakat Ali and Banwari Lal was asked to leave on the pretext that they would be talking with regard to voting. It is also contended that Shaukat Ali was having arms license and the gun, which was recovered at his instance, was licensed. There is specific evidence of the Armour Department that the gun was damaged and the report also suggests that Shaukat Ali was having 50 live cartridges, out of which, 2 cartridges were used and only 48 cartridges were recovered at his instance, which goes to show that 2 gunshots were fired at the deceased, which is also established from the medical evidence. It is also contended that (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (8 of 14) [CRLA-817/2013] the deceased has also sustained sharp injuries, which were caused by sword and sword has been recovered at the instance of Abid Ali, which is found to contain human blood. Since it was washed before the recovery as is the case of prosecution, the blood grouping could not be done. It is further contended that bloodstained slippers of Shakila Bano were recovered from the place of occurrence and mobiles were also recovered at her instance, which were broken and thrown in the well. The fact that they were in the well was only in the knowledge of Shakila Bano and at her instance, they were recovered. It is also contended that from the site report, it is evident that bloodstains were found in the inner side of the house, on the floor as well as on the wall and there was no possibility of opening fire from outside. Hence, the prosecution has established the case against accused appellants - Shaukat Ali, Abid Ali and Shakila Bano.
13. With regard to accused appellant - Liyakat Ali, it is contended by learned counsel for the complainant that he came to India only for the purpose of committing the alleged offence. All the accused had planned the commission of the offence. Abid Ali was armed with a sword, Shaukat Ali was armed with a licensed firearm and they called the deceased at their house as is the evidence of Banwari Lal. The defence now set up by Liyakat Ali that Shaukat Ali opened fire upon the deceased as he was having relationship with his wife, is clearly putting blame on Shaukat Ali and setting up a new story, which was not there in the initial defence as set up by Shaukat Ali, Abid Ali and Shakila Bano. It is also contended that as there is ocular evidence of Banwari Lal with (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (9 of 14) [CRLA-817/2013] regard to the deceased being called by Liyakat Ali and Shaukat Ali, there was no necessity of producing evidence that Liyakat Ali was present in village. It is further contended that the passport of Liyakat Ali would have been a valid piece of evidence to establish that Liyakat Ali was not in India on the date of the alleged offence. This passport was in power and possession of Liyakat Ali and as per Section 106 of the Evidence Act, it was the duty of Liyakat Ali to establish that he was not in India on the date of the alleged offence. The prosecution has thus clearly established the guilt of accused appellant - Liyakat Ali and both the judgments of conviction and orders of sentence are liable to be upheld.
14. Learned counsel for the Complainanat has placed reliance on the judgments in Jayantilal Verma Versus State of M.P. (Now Chhattisgarh): Criminal Appeal No.590 of 2015 and Balvir Singh Versus State of Uttarakhand: Criminal Appeal No.301 of 2015.
15. We have considered the contentions raised by learned counsel for the parties and have carefully gone through the material on record.
16. The fact that the dead body was recovered from the house of Liyakat Ali is not a disputed fact. The fact that the deceased sustained 2 gunshot wounds and 2 live cartridges were missing from 50 live cartridges recovered at the instance of Shaukat Ali is also pointing towards the use of firearm by Shaukat Ali. The fact that gun recovered from Shaukat Ali had been damaged so as to make it non-serviceable is also established from the evidence of the Armorer, who has stated that gun has been recently damaged. (Downloaded on 19/12/2023 at 10:22:59 PM) [2023:RJ-JP:37110-DB] (10 of 14) [CRLA-817/2013] The deceased was last seen with Shaukat Ali and Liyakat Ali. Accused appellants - Shaukat Ali, Abid Ali, Shakila Bano and Liyakat Ali were present at the time of the alleged offence as Shakila Bano is wife of Liyakat Ali and at her instance, mobiles were recovered and her bloodstained slippers were also found near the dead body. The deceased has sustained sharp injuries by sword and sword was recovered at the instance of Abid Ali. Bloodstained shirt of Shaukat Ali has also been recovered, which also points towards his involvement in the alleged offence.
17. The fact that Liyakat Ali was in India and in the village is established from the evidence of Banwari Lal, who has deposed that Liyakat Ali along with Shaukat Ali came to his house and took away the deceased with them. He also accompanied the deceased but both Liyakat Ali and Shaukat Ali told him that deceased would return later, on which he left their house. Thus, the deceased was left alone in the company of Shaukat Ali and Liyakat Ali. The prosecution has produced the record as per which Liyakat Ali came to India on 13th January and left India on 16th January, which could have been rebutted by the accused by producing his passport. As per the provisions of Section 106 of the Indian Evidence Act, the best evidence was with Liyakat Ali and he could have established by producing his passport that he was not in India on the date of the alleged offence.
18. During the course of the arguments, this Court also permitted accused appellant - Liyakat Ali to produce his passport and assured that the same would be taken as additional evidence, (Downloaded on 19/12/2023 at 10:23:00 PM) [2023:RJ-JP:37110-DB] (11 of 14) [CRLA-817/2013] if it is established from the passport that he was abroad and that this Court would consider the same, however, learned counsel for the appellant - Liyakat Ali was unable to produce the passport. Thus, there being evidence of the Home Department that Liyakat Ali arrived in India on 13th January and left India on 16th January is established; mere non-production of the person, who signed the report, does not loose its importance. Even under Section 313 Cr.P.C., Liyakat Ali has only mentioned that he was not in the village; he did not mention that he was not in India. He has also mentioned that the dispute took place and his brother Shaukat Ali fired upon the deceased, which goes to show that he was present at the time of the alleged offence.
19. The recovery of firearm and cartridges was made at the instance of Shaukat Ali. The fact that the deceased sustained 2 gunshot injuries and 5 cut wounds caused by sword is established from the medical report. The fact of recovery of mobiles and slippers of Shakila Bano points towards her involvement in the alleged offence. The fact that dead body of deceased was recovered from the house of Liyakat Ali; gunshot injury was caused from inside the house; head pellets and bloodstains were found in the house and that despite opportunity, Liyakat Ali failed to produce his passport before this Court, points towards his presence and involvement in the offence. All the accused conspired and in pursuance of the conspiracy, deceased was murdered, hence, offence under Section 120-B of IPC is clearly made out against Shakila Bano and Liyakat Ali. Even though Liyakat Ali and Shakila Bano have not caused any injury to the (Downloaded on 19/12/2023 at 10:23:00 PM) [2023:RJ-JP:37110-DB] (12 of 14) [CRLA-817/2013] deceased, their conviction with the aid of offence under Section 120-B of IPC cannot be said to be contrary to the evidence available on record. Learned Trial Court has considered the entire material on record and has rightly come to the conclusion that the deceased was called by the accused and thereafter, they committed the offence of murder. Since specific allegation has been made against accused appellants - Shaukat Ali and Abid Ali, learned Trial Court has not committed any error in convicting them for offence under Section 302 of IPC.
20. The contention of learned counsel appearing for accused appellant - Liyakat Ali that the dispute took place as the deceased was having illicit relationship with his wife - Shakila Bano and Shaukat Ali fired upon him, cannot be read against Shaukat Ali for the very reason that this explanation was given under Section 313 Cr.P.C. in separate proceedings, in which Shaukat Ali was not a party. However, this explanation points towards the involvement of Liyakat Ali. The contention of learned counsel appearing for Liyakat Ali that deceased was having relationship with Shakila Bano as has been admitted by the Investigating Officer, cannot also help Liyakat Ali for the very reason that this defence was set up after the conviction of Shaukat Ali and the said defence was not set up by accused appellants - Shaukat Ali, Abid Ali and Shakila Bano. Liyakat Ali has clearly planned the offence, he came to India on 13th January, became a member of unlawful assembly on 14th January and thereafter, left India on 16 th January, which goes to show that his only purpose for coming to India was to murder the deceased.
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21. The circumstances that:- the deceased was called by Shaukat Ali and Liyakat Ali; his dead body was recovered from the house of Liyakat Ali; the gunshot wounds and sharp edged injuries were caused to him inside the house and the firing was also done from inside the house of Liyakat Ali; accused Shaukat Ali tried to destroy the evidence by damaging his gun; unused 48 cartridges were recovered out of 50 cartridges, which were in possession of accused Shaukat Ali; sword was recovered at the instance of Abid Ali; bloodstained slippers of Shakila Bano were recovered from her house and mobiles were also recovered at her instance; and Liyakat Ali was present in India on the date of alleged offence and was present at the place of occurrence, clearly make out a chain of prosecution story so as to establish the guilt of the accused appellants.
22. Consequently, we do not find any force in the appeals preferred by the accused appellants and the same are accordingly dismissed. Both the judgments of conviction and sentence passed in separate appeals by the learned Trial Court are affirmed.
23. The appellants - Shakila Bano and Abid Ali, who are on bail, their bail bonds stand cancelled and learned Trial Court is directed to take necessary steps for taking the accused appellants - Shakila Bano and Abid Ali in custody for serving the remaining sentence.
24. Application for suspension of sentence bearing No.1411/2023 filed in D.B. Criminal Appeal No.259/2023 stands disposed of.
(Downloaded on 19/12/2023 at 10:23:00 PM) [2023:RJ-JP:37110-DB] (14 of 14) [CRLA-817/2013] (BHUWAN GOYAL),J (PANKAJ BHANDARI),J SUNIL SOLANKI /PS (Downloaded on 19/12/2023 at 10:23:01 PM) Powered by TCPDF (www.tcpdf.org)