Rajasthan High Court - Jaipur
Abdul Wahid vs State Of Rajasthan on 10 March, 1998
Equivalent citations: 1998CRILJ3423
JUDGMENT
G.L. Gupta, J
1. Through this appeal, appellant Hazi Mukhtiyar Ali (since dead) and Abdul Wahid have called in question their conviction recorded by the learned Sessions Judge, Jodhpur vide Judgment dated 17th July, 1993 in Sessions Case No. 207/91 whereby Hazi Mukhtiyar Ali was convicted under Section 302, IPC and Abdul Wahid under Section 302/34, IPC. Both of them were sentenced to undergo imprisonment for life. Hazi Mukhtiyar Ali (to be referred to as 'Hazi' hereinafter) has died during the pendency of the appeal. His appeal has abated.
2. The facts, in short, are that Devendra Singhvi and many others were tenants in the premises of Hazi known as 'Hazi building'.
There was dispute between the landlord and the tenants. On the fateful day i.e. on 23rd of August, 1991 some repair work was undertaken on the roof. He, followed by Devendra went on the roof of the shop where they saw both the accused quarrelling with the labourers. After some talks. Hazi accused told Anil Kumar and Devendra to come to his shop for talks. Anil Kumar and Devendra got down of the roof and sat in their shop. After some time accused Abdul Wahid went there and told that his father was calling them. On this, Devendra and Anil Kumar proceeded towards the shop of accused Hazi along with accused Abdul Wahid. Dalpatrai Bhansali, a relation of Anil Kumar, who was sitting there in the shop, and Mahesh Baheti, a neighbour also accompanied them. The prosecution case is that as they reached the shop of the accused, Abdul Wahid told his father Hazi that these persons incited the other tenants and told them not to pay rent; they be shot dead. On this, accused Hazi, who was already haying a gun In his hand, fired a shot hitting Devendra on upper portion of his chest. Devendra fell down and died at the spot. The first in formation rcport of the occurrence (Ex. P/1) was lodged by Anil Kumat at 5.15 PM beforc:Chain Singh, ASi, who had reached his shop on some message. Shri Chain Singh sent the FIR to the police station through Nathu Singh, FC, for registration of the case and he started investigation. before Chain Singh reached the site, Hari Singh SHO, PS Sardarpura, had already reached there on receiving information about the incident. He saw accused Hazi armed with gun. He, therefore, asked him to surrender. At his direction, Hazi Mukhtiyar Ali surrendered his fire arm. He, therefore, arrested both the accused. During investigation, the police held the inquest, interrogated the witnesses and seized the blood stained clothes of Vagtu Ram. The autopsy was held by Dr. N.S. Kothari (PW 12) who prepared the post-mortem report Ex. P/22. After the completion of the investigation, a challan was submitted.
3. A charge under Section 302, IPC was framed against Hazi. Accused Abdul Wahid was charged under Section 302/34. They pleaded not guilty. The prosecution examined 19 witnesses. Accused in their statements under Section 313, Cr.P.C. denied accusation. Accused Abdul Wahid states in his statement that Devendra, Anil, Lalit, Dalip and Nand Kishore had attacked him when he was in the shop and at that time his father was sitting in a Jeep to proceed for realisation of the outstandings. He further states that Anil tried to snatch the gun of his father and in that attempt the gun went off. Same was the statement of accused Hazi. The accused did not examine any witness in defence.
4. The learned Sessions Judge held that Devendra had met homicidal death. He further held that accused Abdul Wahid had exhorted Hazi to cause the death of Devendra and then Hazi had fired a short hitting Devendra on his chest. He, therefore, convicted accused Abdul Wahid as above.
5. The contention of Mr. Mohnani, learned counsel for the appellants was that the trial Court has erred in accepting the prosecution story that accused Abdul Wahid had gone to the shop of Anil to call Anil and Devendra or that he had exhorted his father to shoot the deceased. He pointed out some discrepancies appearing in the statements of the witnesses regarding exhortation and drew our attention to this fact that in the FIR written by Anil Kumar it was not mentioned that accused Abdul Wahid had exhorted Hazi to cause the death of Devendra. According to him, the defence version of the occurrence ought to have been believed as the legs of the dead body were found lying on the roadside, which indicated that Devendra had suffered the gun shot wound from the roadside and not from the shop.
6. On the other hand, Mr. Mehta, learned Special Public Prosecutor appearing for the State contended that the trial Court has correctly appreciated the evidence and this fact is amply proved on record that the deceased and Anil Kumar were called from the shop by Abdul Wahid and as they reached outside the shop of the accused, Hazi fired a short standing inside the shop at the instance of Abdul Wahid. He canvassed that the facts disclosed by Anil Kumar in the 'Takriran Dariyaft' before registration of the case were part of the FIR and the prosecution version should not be disbelieved on the ground that the factum of exhortation was not written in the main part of FIR Ex. P/1. He urged that even the facts stated in the main part of the FIR indicate that accused Abdul Wahid had exhorted Hazi to commit an offence. He pointed out that accused Abdul Wahid being son of main accused Hazi, knew it very well when he went to call Anil and Devendra that his father was having a gun and ammunitions. According to him, the murder was committed in pre-planned manner, that one accused called the deceased and the other accused kept the loaded gun ready and as the deceased reached there, he was shot dead. He relied on the decisions of: Rauf v. State of Uttar Pradesh, 1978 Cr LR (SC) 157 : 1978 Cri LJ 1474; Joginder Singh v. State of Haryana, AIR 1994 SC 461 : 1994 Cri LJ 134; Munna & Ayyia v. State of U.P., 1993 SCC (Cri) 798 : 1993 Cri LJ 45 and P.D. Pushparajan v. State of Kerala, 1993 SCC (Cri) 754.
7. We have given the matter our thoughtful consideration. The death of Devendra was homicidal, has not been disputed by the learned counsel for the appellant and we think rightly so. Dr. Kothari deposes that when he examined the dead body of Devendra, he had the following injuries on his person which were ante-mortem in nature :-
1. Lacerated wound (wound of entry) 7.0 cm x 5.0 cm x bone deep with inverted margins on the lower part of neck just above supra sternal noch between clavicles.
2. Five small punctured wounds (wounds of entry) each 0.5 cm x 0.5 cm on the lower part of neck anteriorly just above injury No. 1.
3. Multiple small lacerated wounds (thirty two) in the area of 19.0 cm x 8.0 cm on the upper part of right chest anteriorly and right clavicular region, each wound is about 0.5 cm x 0.5 cm in size. There is fracture of right clavicle.
4. Lacerated small wound (wound of entry) 0.5 x 0.5 cm on upper 1/3rd right arm and antero- laterally.
5. Lacerated small wound (wound of entry) 0.5 cm x 0.5 cm x muscle deep on the dille 1/3rd right arm antero-laterally.
6. Swelling in the haematoma 2.5 cm x 1.5 cm on the mid occipital region of the scalp.
He then says that the cause of death of Devendra was shock and haemorrhage as a result of injury to large blood vessels, trachea, oesophagus, both lungs and spinal cord at the level of C-7 and D-1. According to him, the injuries were caused by fire arm. He proves the post-mortem report Ex. P/22. There is absolutely no reason to disbelieve the testimony of Dr. Kothari. The shot was fired from some distance and therefore there was no likelihood of blackening, scorching and tatooing. There is nothing in the cross examination of Dr. Kothari to disbelieve him. It has therefore been rightly found by the trial Court that Devendra had suffered fire arm injuries and his death was homicidal.
8. Now the question for consideration is whether the prosecution version that accused Hazi had fired the shot from the shop has rightly been accepted by the trial Court.
9. The dead body was found lying outside the shop. All the prosecution witnesses depose that having sustained fire arm injuries, Devendra had fallen in this manner that his head was towards road and the legs were towards the shop of the accused. Dalpatraj Bhansali (PW 6), Anil (PW I), Mahesh Baheti (PW 5) and Vagtu (PW 7) all depose that when Devendra fell down having sustained fire arm injuries, his head was towards the road and the legs towards the shop of the accused. Hari Singh (PW 15) SHO, PS, Sardarpura, was the first police officer to reach the place of occurrence. He also deposes that when he saw the dead body, the head was towards the road and the legs were towards the shop of the accused. To the same effect is the statement of Chain Singh (PW 14), the Investigating Officer. This direction of the dead body clearly indicates that Devendra had sustained injuries on his chest from the shop.
10. However, as in the Memo Ex. P/2 indicating the condition of the dead body, it is stated at portion E to F that the head of the dead body was towards the north and the legs were towards the south, it was argued that the dead body was lying north-south with head towards the shop of the accused and legs towards the road, which indicated that Devendra had suffered gun shot inju- ries not from the shop but from the roadside. This argument is not acceptable in view of the explanation given by Chain Singh in his statement. Chain Singh states that by inadvertence he dictated head towards the north and the legs towards the south. It is not uncommon that people commit mistakes in mentioning the directions. It seems that Chain Singh got confused when he was dictating the memo Ex. P/2 and mentioned wrong direction of the head and legs. There is overwhelming evidence on record that the head of the dead body was towards south and legs towards north. The photographs were also taken during investigation. Photos Ex. D/5 and D/6 clearly show that the legs of the dead body were towards the shop of the accused.
11. In this connection, Mr. Mohnani drew our attention to this fact that Hari Singh admits that the dead body was moved from the place where it was initially lying. Hari Singh deposes that his constables had told him that as it was difficult to enter the shop because of the legs of the deceased in between the gate and the open place, they had slightly moved the dead body. The dead body was lying just outside the gate of the shop and therefore, there is nothing unnatural in the statement of Hari Singh when he says that the legs were obstructing the entry in the shop, and therefore, the constables had moved the dead body slightly. On the statement of Hari Singh, it cannot be inferred that the police had changed the direction of the dead body.
12. The prosecution witnesses have emphatically denied the suggestion that the direction of the dead body was changed in order to make out a case against the accused. There is no evidence on record to support the defence version that Vagtu Ram had told that the direction of the dead body should be changed otherwise the case would not be established and thereafter the direction of the dead body was changed. All the prosecution witnesses have denied the suggestion put to them in emphatic words. There is no evidence of the accused on this point. The defence version cannot be accepted simply on the ground that wrong direction is recorded in the memo Ex. P/2.
13. The defence version that accused Abdul Wahid was sitting in his shop and Anil had climbed over the Jeep to snatch the gun from Hazi and in the scuffle the gun went off, cannot be accepted. The accused has not adduced any evidence in support of this plea. Hari Singh who had reached the site first in time deposes that when he reached the place of occurrence, accused Hazi was standing in his shop having gun in his hand and Abdul Wahid was standing by his side. There is nothing on record to disbelieve him. It is to be noticed that according to Hazi accused, at the time the gun went off, Devendra was at his shop and was talking to AbduWahid and Abdul Wahid also deposes that when Devendra came, he was inside the shop. Obviously, if the defence version is accepted Devendra was not near the Jeep at the time of the alleged scuffle If he was inside the shop of the accused, he could not sustain injury by the gun of accused Hazi from the Jeep. The defence version is wholly unacceptable. The prosecution has successfully proved that accused Hazi had fired the shot standing from his shop.
14. Now the only important point to be decided in this appeal is whether accused Abdul Wahid had exhorted Hazi to cause the death of Devendra. The eye-witnesses to the occurrence are; Anil (PW1) Mahesh Baheti (PW 5), Dalpatraj (PW 6) and Vagtu Ram (PW 7). Anil (PW 1) deposes that accused Wahid had come to call him at his shop, and as he and Devendra, accompanied by Mahesh Baheti and Dalpatraj reached the shop of the accused. Abdul Wahid told Hazi to kill them. According to Anil (PW 1), accused Abdul Wahid exhorted from near the gate of his shop and he immediately entered in the shop. We quote the the words spoken by the witness here under:
vCnqy oghn us vius firk dks dgk fd firkth ;gh os yksx gSa tks fdjk;snkjksa dks HkMdkrs gSa vkSj fdlh dks fdjk;k ugh nsus nsrs] budks xksyh ekj nks A vCnqy oghn viuh nqdku ds vUnj pyk x;k vkSj nsosUnzjkt nqdku esa ?kqlus ds fy, tc fcYdqy lkeus Fkk rks gkth eq[kfR;kj vyh us cUnwd ls xksyh ekjh A x x x ^^vCnqy oghn us mDr ckr dg dj rsth ls vUnj dh rjQ pyk x;k A**
15. Mahesh Baheti (PW 5) says that accused Abdul Wahid while entering the shop exhorted his father to fire shot. To quote his words :
^^vCnqy oghn viuh nqdku esa ?kqlk vkSj firk eq[kfR;kj vyh dks cksyk fd firkth ;s nksus vius fdjk;snkjksa dks HkM+dkrs gSa] budks xkyh ekj nks A gkth eq[kfR;kj vyh ds ikl ifgys ls yksM djh gqbZ cUnqd iMh gqbZ Fkh A** x x x ^^tc ge yksx nqdku ij igqpsa rks vCnqy oghn ds dqN cksyus ls ifgys gh eq[kfR;kj vyh us viuh cUnqd dk fu'kkuk lkeus dh vksj lk/k j[kk Fkk vkSj vCnqy oghn ds mDr ckr dgus ds ckn cUnqd dk ?kksMk nck fn;k A**
16. Dalpatraj (PW 6) says that as accused Abdul Wahid entered his shop, he exhorted his father to fire shot. In the words of the witness:
^^tkrs ¼\½ gh vUnj tkdj vCnqqy oghn us vius firk dks dgk fd ;s nqdkunkjksa dks HkMdkrs gSa] fdlh dks fdjk;k ugha nsus nsrs] budks xksyh ekj nks] ;g dg dj vUnj tkdj dkmUVj ds ikl [kM+k gks x;k A nqdku ds vUnj gkth eq[kfR;kj vyh canwd fy, gq,s [kM+k Fkk fQj mlh cDr nsosUnz jkt dks mlus ,d ukyh dh cUnqd ls nsosUnz jkt dks xksyh ekj nh** x x x ^^vCnqy oghn xsV ls ckgj ls cksyrs vUnj x;k Fkk vkSj tc og gkth eq[kfR;kj vyh ds ikl tkdj [kM+k gks x;k rc gkth eq[kfR;kj us xksyh pykbZ A vCnqy oghn us [kM+k&gksus ds ¼\½ gkth eq[kfR;kj dks vka[k ls b'kkjk fd;k vkSj b'kkjs ds ckn gkth us xksyh pykbZ** x x x ^^vCnqy oghn us gkth eq[kfR;kj vyh dks dgk lHkh nqdkunkjksa dks HkMdkrs gSa] fdjk;k ugha nsus nsrs] budks xksyh ekj nks ;g dgrs dgrs og vUnj ?kqlk vCnqy oghn us ;g ckr nqdku ds njokts ds nks <kbZ QqV ckgj ls dguk 'kq: dj fn;k Fkk** x x x
17. In our opinion, there are no material contradictions in the statements of the three witnesses. Every person is not expected to remember the incident in the exact manner, particularly when a man is killed in high handed manner. The witnesses are bound to get confused and it is difficult for them to remember the exact sequence and the exact words spoken at that time. The gist of the statements of the three witnesses is that accused Abdul Wahid had exhorted from near the gate and he entered the shop with fast speed. When the witnesses say that Abdul Wahid had exhorted from the gate and he at once entered the shop, it also means that Abdul Wahid had exhorted while entering the shop. Thus there is no discrepancy in the statements of the witnesses as to from where accused Abdul Wahid had made exhortation.
18. The other discrepancy pointed out was that according to Dalpatraj and Mahesh Baheti, accused Wahid had twinkled his eyes towards Hazi accused and thereafter Hazi had fired the shot which fact is not stated by Anil (PW 1). It is possible that Anil did not see the signal given by accused Abdul Wahid from his eyes which was seen by Mahesh and Dalpatraj. No significance can be attached to the said discrepancy.
19. The third discrepancy pointed out was that according to Mahesh Baheti when they reached the shop, accused Hazi was standing there having a gun in his hand aiming towards them, which fact is not stated by Dalpatraj (PW 6) and Anil (PW 1). Dalpatraj (PW 6) though does not state this fact in his examination-in- chief but he makes it clear in his cross-examination that when they reached, Hazi was already having a gun in his hand and he was ready to fire. Anil (PW 1), of course, does not say that accused Hazi was aiming towards them by the gun but he says that accused Hazi was already ready with the gun. Thus, there is no material discrepancy in the statements of the three witnesses.
20. Thus, there are no material discrepancies in the statements of three eye-witnesses on the point of exhortation as to doubt their testimony.
21. The evidence of Dalpatraj (PW 6) cannot be seen with suspicion on the ground that he is related to the deceased being his cousin. There was nothing unnatural in the statement of Dalpatraj who was on leave on that day to visit the shop of the deceased, who was his cousin. His name finds place in the FIR which was lodged immediately after the occurrence. Mahesh Baheti is not related to the deceased. He, being shopkeeper of the nearby shop, out of curiosity, had accompanied Anil and Devendra. His statement cannot be discarded only on the ground that he first denied that he was ten it of accused Hazi and thereafter he admitted the rent note Ex. D/9 executed by him in favour of Hazi. Since there was dispute between the landlord and the tenant, the witness might have first avoided to answer the question asked regarding his tenancy. This does not demolish the value of the evidence given by Mahesh.
22. It is thus fully established on record by the statements of the three witnesses Anil, Mahesh and Dalpatraj that accused Abdul Wahid had gone to the shop of Anil to call him and Devendra and as they accompanied by Mahesh and Dalpatraj reached the shop of the accused. Abdul Wahid made exhortation and thereafter Hazi fired the shot.
23. Great emphasis was laid by Mr. Mohnani on this fact that in the main part of the FIR Ex. P/1 Anil had not written that accused Abdul Wahid had asked his father to fire the shot which according to him shows that the accusation against accused Abdul Wahid is an afterthought. It is true that in the main part of the FIR Ex. P-1 written by Anil, it is not stated that accused Abdul Wahid had asked his father to fire a shot, but immediately after he handedover the report and 'Taqriran Dariyaft' was made by Chain Singh, ASI, he stated that accused Abdul Wahid has asked his father to fire the shot. It cannot be denied that this was an important fact but at the same time this also cannot be lost sight of that Anil had lost his real brother and he was in tense atmosphere at the time he recorded the FIR. It is possible that the fact slipped away from his mind when he was writing the FIR. However, immediately after he handedover the FIR, he recollected and disclosed this fact to Shri Chain Singh that accused Abdul| Wahid had made exhortation to his father. The interrogation made by Chain Singh obviously was before the commencement of the investiga- tion. Whatever Anil stated to Shri Chain Singh at portion 'C' to 'D' of Ex. P/1, was before the commencement of the investigation, and therefore, it was certainly part of the first information report. This Court has held in the case of Sanwaliya v. State of Raj, ILR 1953 (3) Raj 380 : AIR 1955 NUC (Raj) 497, that all statements made to the police before the commencement of the investigation are admissible in evidence and investigation does not necessarily commence immediately after the first information report is recorded. Chain Singh had only received the FIR at the shop of Anil and had not even visited the site before he recorded the statement 'C' to 'D', and therefore the portion 'C' to 'D' is the part of the FIR and is not hit by Section 162 of the Cr. P.C.
24. The contention of Mr. Mohnani was that the investigation of the case had already started as Hari Singh (PW 15), had arrested the accused vide memos Ex. P/8 and P/9 and therefore, the whole of the FIR Ex. P/1 including the portion 'C' to 'D' is hit by Section 162 of Cr. P.C. In our opinion, the argument is misconceived, Hari Singh had not commenced investigation of the case. As already stated, Sardarpura police had anyhow come to know about the occurrence and therefore, taking it to be a law and order problem. Hari Singh had rushed to the spot and when he saw accused Hazi standing with a gun in his shop along with Abdul Wahid, he asked them to surrender, and on their surrender, he took them in custody and prepared the memos Ex. P/8 and P/9. This action was taken under Section 41(1), Cr.P.C. Under Section 41, the police is empowered to arrest a person without a warrant if it has reason to believe that a person is concerned in any cognizable offence. It cannot be said that Hari Singh had taken part in the investigation of the case. Since investigation had not started the entire version given in the FIR Ex. P/1 including the portion 'C' to 'D' is admissible in evidence and is not hit by Section 162, Cr. P.C.
25. It is significant to point out that even in the main part of the FIR it was stated that Abdul Wahid had told his father Hazi that these persons incited the shop-keepers not to pay rent and on this Hazi, who was already prepared with the gun, fired a shot. This clearly shows that it was indicated in the FIR that accused Hazi had fired the shot after accused Abdul Wahid had exhorted him.
26. The prosecution has examined Vagtu Ram (PW 7) also to prove charges against the accused. Vagtu Ram says that Abdul Wahid while entering the shop had told his father to fire a shot at Devendra as he incited the tenants not to pay rent and thereafter Hazi accused had fired a shot. It was argued by Mr. Mohnani that the name of this witness does not find place in the FIR and he was interrogated as witness after two days and therefore his statement should not be believed. The name of this witness was not mentioned by Anil Kumar in the FIR Ex. P/1 as also in his statement Ex. D/3 recorded under Section 161, Cr. P.C. It may be that he was disturbed when the FIR was written by him but the fact that even in his statement Ex. D/3 his name does not find place clearly indicates that he was not present at the time the shot was fired. It appears that this witness reached the place of occurrence after Devendra had fallen down and his clothes were smeared with blood when he touched the dead body. We shall, therefore, ignore his evidence so far as it relates to the exhortation by accused Abdul Wahid is concerned.
27. The learned Sessions Judge has discussed the evidence in detail and has come to a correct conclusion that accused Abdul Wahid first went to call the deceased from his shop knowing full well that his father was having a gun and ammunitions with him and then he exhorted accused Hazi to fire a shot from his gun, and thereafter accused Hazi fired a shot. The circum- stances clearly indicate that both the accused, father and son had shared common intention to kill the deceased. The learned Sessions Judge was therefore perfectly justified in convicting the accused under Section 302 read with Section 34, IPC.
28. For the reasons stated above, there is no merit in this appeal which is hereby dismissed. Appellant Abdul Wahid is in Jail. He be informed through jail authorities.