Rajasthan High Court - Jodhpur
Khanu Khan @ Khaniya vs State Of Rajasthan on 3 December, 2021
Bench: Vijay Bishnoi, Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application
(Appeal) No. 507/2021
IN
D.B. Criminal Appeal (Db) No. 143/2020
Nazir S/o Meeru Khan Musalman, Aged About 45 Years, R/o
Ratharo-Ka-Tala, Police Station Beenjrad, District Barmer.
(Presently Lodged At Central Jail, Jodhpur).
----Applicant
Versus
State Of Rajasthan
----Respondent
CONNECTED WITH
D.B. Criminal Misc Suspension Of Sentence Application
(Appeal) No. 753/2020
IN
D.B. Criminal Appeal (Db) No. 147/2020
Nazir Khan S/o Shri Jiya Khan, Aged About 38 Years, By Caste
Musalman, Resident Of Bhoote-Ki-Dhani, P.S. Bijrad, District
Barmer.
(At Present Lodged In Central Jail, Jodhpur).
----Applicant
Versus
State of Rajasthan
----Respondent
D.B. Criminal Misc Suspension Of Sentence Application
(Appeal) No. 111/2021
IN
D.B. Criminal Appeal (Db) No. 181/2020
Mubarak S/o Haji Hameer, Aged About 63 Years, R/o Negrada,
P.S. Shiv, District Barmer.
(At Present Central Jail, Jodhpur).
----Applicant
Versus
State Of Rajasthan
----Respondent
(Downloaded on 03/12/2021 at 09:13:20 PM)
(2 of 15) [SOSA-507/2021]
D.B. Criminal Misc Suspension Of Sentence Application
(Appeal) No. 258/2021
IN
D.B. Criminal Appeal (Db) No. 161/2020
Jagmohan Singh S/o Shri Gurunam Singh, Aged About 38 Years,
Bc/ Sikh, R/o Ward No. 12, Mohalla Singhpura Bassi Pathan,
District Fatehgarhsahib, State Punjab.
(Presently Lodged At Central Jail, Jodhpur)
----Applicant
Versus
State Of Rajasthan
----Respondent
D.B. Criminal Misc Suspension Of Sentence Application
(Appeal) No. 445/2021
IN
D.B. Criminal Appeal (Db) No. 173/2020
Khanu Khan @ Khaniya S/o Shri Maruf, Aged About 60 Years, By
Caste Muslim, R/o Bhabhute Ki Dhani, Binzrad Police Station,
district Barmer.
(Lodged In Central Jail Jodhpur).
----Applicant
Versus
State Of Rajasthan
----Respondent
For Applicant-Nazir S/o Meeru Khan : Mr. Nishant Bora
For Applicant-Nazir Khan S/o Jiya : Mr. Suresh Kumbhat
Khan Mr. Sheetal Kumbhat
For Applicant-Mubarak : Mr. Vishal Sharma
For Applicant-Jagmohan Singh : Mr. Dhirendra Singh
Ms. Priyanka
For Applicant-Khanu Khan @ : Mr. B. Ray Bishnoi
Khaniya
For Respondent-State : Mr. R.R. Chhaparwal, PP
(Downloaded on 03/12/2021 at 09:13:20 PM)
(3 of 15) [SOSA-507/2021]
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order Date of Order Reserved : 17/11/2021 Date of Order Pronouncement : 03/12/2021 (Per Hon'ble Vijay Bishnoi, J) D.B. Criminal Appeal Nos.143/2020 and 147/2020 are admitted. No need to issue notice of the said appeals as the parties are already represented through their respective counsel.
These suspension of sentence applications have been preferred on behalf of applicants for suspending their sentence awarded by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Cases), Barmer (hereinafter to be referred as 'the trial court') vide judgment dated 25.08.2020 in Sessions Case No.01/2010 (37/2010, 04/2016) while convicting and sentencing them for life imprisonment for the offences punishable under Sections 5 and 6/9-B of Explosive Act; Sections 4, 5 and 6 of Explosive Substances Act; Sections 3/25 and 7/25(1)(D)(1-AA) of Arms Act; Sections 3/10, 13, 18 and 20 of Unlawful Activities (Prevention) Act and Sections 153-A and 120-B IPC.
Regarding Nazir S/o Meeru Khan :-
Mr. Nishant Bora, learned counsel appearing for applicant-Nazir S/o Meeru Khan has submitted that the applicant is in custody from last more than 12 years and taking into consideration this fact alone, his sentence may be suspended. (Downloaded on 03/12/2021 at 09:13:20 PM)
(4 of 15) [SOSA-507/2021] Learned counsel for the applicant has placed reliance on the decisions of the Hon'ble Supreme Court rendered in Smt. Akhtari Bi Vs. State of M.P. [Appeal (Crl.) 320/2001] dated 22.03.2001 and the order passed in Saudan Singh Vs. The State of Uttar Pradesh [Petition(s) for Special Leave to Appeal (Crl.) No.4633/2021] dated 05.10.2021 and argued that as the applicant is in jail from around 12 years and the appeal filed by him will take time in decision, his sentence may be suspended.
Learned Public Prosecutor has vehemently opposed the prayer made on behalf of applicant-Nazir S/o Meeru Khan and argued that the present case is involving sovereignty and integrity of the country. It is submitted that the applicant along with other co-accused persons hatched the conspiracy and received illegal firearms and explosive RDX from Pakistani smugglers over the border with the understanding that they would supply the said illegal arms and explosives to the members of terrorist organization Babbar Khalsa of Punjab to carry out terrorist activities.
It is further submitted that the trial court has meticulously examined the prosecution evidence and given a finding that the applicant, along with other co-accused - Soda Khan @ Sobar @ Luniya had received the haul of illegal arms including explosive RDX from the Pakistani smugglers and hidden the same on a secluded place with the intention to supply the same to the members of the terrorist organization Babbar Khalsa of Punjab. Learned Public Prosecutor has submitted that with the alertness of the police, the haul of illegal arms and the explosive RDX were (Downloaded on 03/12/2021 at 09:13:20 PM) (5 of 15) [SOSA-507/2021] recovered before it could be supplied to the terrorist. Learned Public Prosecutor has submitted that the offences, for which applicant-Nazir S/o Meeru Khan has been convicted and sentenced, are serious and heinous in nature, therefore, the sentence awarded to him may not be suspended. Regarding Nazir Khan S/o Jiya Khan :-
Mr. Suresh Kumbhat, learned counsel appearing for applicant-Nazir Khan S/o Jiya Khan has submitted that the applicant is in custody from last more than 5 years and he was enlarged on bail during trial. It is further argued that as per the prosecution story, the applicant was in receipt of the illegal arms and explosives, said to have been smuggled by the smugglers of Pakistan. It is submitted that the allegation of transporting illegal arms and explosives in the vehicle of the applicant is also false and not supported by any evidence. It is, therefore, argued that it is a case of 'no evidence' and in such circumstances, the sentence awarded to the applicant is liable to be suspended.
Per contra, learned Public Prosecutor has vehemently opposed the prayer made on behalf of applicant-Nazir Khan S/o Jiya Khan and argued that the prosecution has sufficiently proved the charges against the applicant. It is submitted that the police have recovered the foot moulds from the place, where the arms, ammunition and explosives were recovered and those foot moulds were matched with the applicant and the prosecution has proved that the foot moulds, taken from the place, where the arms, ammunition and explosives were hidden, are of the applicant. Learned Public Prosecutor has argued that though the applicant (Downloaded on 03/12/2021 at 09:13:20 PM) (6 of 15) [SOSA-507/2021] clearly knew that the illegal arms and explosives are to be used for anti national activities yet he conspired with the co-accused persons, involved in commission of crime. It is, therefore, submitted that the sentence awarded to the applicant may not be suspended.
Regarding Mubarak S/o Haji Hameer :-
Mr. Vishal Sharma, learned counsel appearing for applicant- Mubarak S/o Haji Hameer has submitted that the applicant was enlarged on bail during trial. It is submitted that the applicant has falsely been implicated in this case. It is argued that there is no evidence available on record to connect the applicant with commission of crime. It is submitted that though the case was registered in the year 2009 but the applicant was arrested in the year 2011. It is further submitted that there is no evidence available on record to suggest that the applicant hatched conspiracy with the other co-accused persons. It is also submitted that the prosecution has alleged that the applicant was in constant touch with the co-accused persons through mobile phone, however, the mobile phones said to have been recovered from the applicant do not belong to him. It is also submitted that the witnesses, whose statements were recorded against the applicant during the course of police investigation, have not supported the prosecution story. It is further submitted that during trial, the applicant was enlarged on bail by this Court vide order dated 07.11.2012 after noticing that the investigation was done very casually. It is, therefore, prayed that the sentence awarded to the applicant may be suspended.
(Downloaded on 03/12/2021 at 09:13:20 PM)
(7 of 15) [SOSA-507/2021]
Per contra, learned Public Prosecutor has vehemently
opposed the prayer made on behalf of applicant-Mubarak S/o Haji Hameer and argued that from the evidence produced by the prosecution before the trial court, it is clear that the applicant had actively participated in the commission of crime along with other co-accused persons. It is further submitted that from the evidence of the trial court, it is clear that the applicant, with prior knowledge of severity of crime, took illegal arms and explosives in his possession and actively participated in commission of crime with the other co-accused persons.
Regarding Jagmohan Singh S/o Gurunam Singh :-
Mr. Dhirendra Singh, learned counsel appearing for applicant-Jagmohan Singh S/o Gurunam Singh has submitted that the applicant is in jail from last more than 12 years. It is argued that as a matter of fact the prosecution has failed to produce the cogent and reliable evidence against the applicant to the effect that he came to Jodhpur for receiving the haul of illegal arms and explosive RDX from the other co-accused persons. It is also argued that though the prosecution has termed the applicant as a member of terrorist organization Babbar Khalsa of Punjab but no such evidence has been produced on record, by which it can be concluded that the applicant is connected with the terrorist organization Babbar Khalsa of Punjab in any manner. It is further argued that the trial court has swayed with the fact that the applicant was facing trial for the similar kind of offences punishable under the Unlawful Activities (Prevention) Act, 1967, however, in those cases, he was acquitted after full-fledged trial (Downloaded on 03/12/2021 at 09:13:20 PM) (8 of 15) [SOSA-507/2021] by the concerned competent courts. Learned counsel for the applicant has pressed into service the judgment dated 12.05.2016 passed by the High Court of Punjab and Haryana at Chandigarh in Jagmohan Singh @ Rinku & Anr. Vs. State of Punjab and Anr. [CRA-S-4214-SB of 2013 (O&M)] and the judgment dated 27.02.2015 passed by the Additional Sessions Judge, Patiala in State of Punjab Vs. Jagmohan Singh @ Rinku & Ors. [S.C. No.34 of 22.2.2010/2.4.2014] in support of his contention that the applicant has been acquitted by the concerned courts in relation to the similar kind of offences. It is further argued that during the course of investigation, the police had recorded the statements of some of the witnesses to prove the allegation that on a specific date the applicant was present in Jodhpur and made certain phone calls with the intention to receive the haul of illegal arms and explosive RDX, however, all those witnesses did not support the prosecution story and turned hostile. It is, therefore, prayed that in the facts and circumstances of the case, the sentence awarded to the applicant is liable to be suspended.
Per contra, learned Public Prosecutor has vehemently opposed the prayer made on behalf of applicant-Jagmohan Singh S/o Gurunam Singh and argued that the allegation against the applicant is to the effect that he, under the instruction of terrorist organization Babbar Khalsa of Punjab, went to Jodhpur for the purpose of receiving haul of illegal arms and explosive RDX. It is submitted that as the police have already failed their plan by recovering the haul of illegal arms and explosive RDX then the applicant returned back from Jodhpur. Learned Public Prosecutor has submitted that though some of the persons, who earlier gave (Downloaded on 03/12/2021 at 09:13:20 PM) (9 of 15) [SOSA-507/2021] evidence during the course of police investigation regarding the applicant have not supported the prosecution story but the concerned Magistrate, who carried out the identification parade, has clearly admitted in his statements recorded as PW-74 that the witnesses have identified the applicant, who made phone calls at Barmer to the co-accused persons for the purpose of receiving haul of illegal arms and explosives. It is further submitted that the applicant is involved in terrorist activities, for which he was put to trial, and was acquitted due to lack of evidence but no clean-chit was given to him.
Regarding Khanu Khan @ Khaniya S/o Maruf :-
Mr. B. Ray Bishnoi, learned counsel appearing for applicant-Khanu Khan @ Khaniya S/o Maruf has submitted that the applicant is in jail from last around 12 years. It is argued that the trial court has grossly erred in convicting and sentencing the applicant without there being any reliable evidence available against him. It is further submitted that the allegations against the applicant of receiving illegal arms and explosives are false. It is also submitted that as a matter of fact the allegation of receiving illegal arms and explosives is against co-accused persons viz. Nazir S/o Meeru Khan and Soda Khan @ Sobar @ Luniya and not against the applicant. It is, therefore, prayed that in the facts and circumstances of the case, the sentence awarded to the applicant by the trial court is liable to be suspended.
Per contra, learned Public Prosecutor has vehemently opposed the prayer made on behalf of applicant-Khanu Khan @ Khaniya S/o Maruf and argued that the applicant is one of the (Downloaded on 03/12/2021 at 09:13:20 PM) (10 of 15) [SOSA-507/2021] persons, who was in receipt of the illegal arms and the explosives smuggled by the smugglers of Pakistan. It is further submitted that from the evidence produced by the prosecution before the trial court, it is clear that huge quantity of explosives was recovered by the police from the residential house of the applicant and the same is evident from Exhibit-P/62, which has very well been proved by the prosecution. It is further submitted that the illegal arms and explosives, recovered from the residence of the applicant could have been used for terrorist activities, which may result in loss of life of hundreds of innocent persons.
Heard learned counsel for the parties and perused the judgment passed by the trial court as well as the material available on record.
As per the prosecution story, the police, on secret information, came into action and laid a trap. As per the information, accused - Soda Khan @ Sobar @ Luniya and other companion may supply arms and explosive substance to some of the members of terrorist organization operating in Punjab, which may be used for terrorist activities in India and the said arms and explosive substance including RDX were received from co-accused Soda Khan @ Sobar @ Luniya and other from the smugglers of Pakistan. The police party waited for the accused persons at village Marudi, Gadara Road at Barmer for several hours, however, they did not reach there. On 08.09.2009 at 08:00 AM, the police again received an information that the accused buried the arms and explosives alongside the road between village Marudi and (Downloaded on 03/12/2021 at 09:13:20 PM) (11 of 15) [SOSA-507/2021] Data. The police conducted a search and found a place from where, it dugout some bags and recovered huge quantity of arms cartridges and explosives. The first information report was lodged against Soda Khan @ Sobar @ Luniya and others including applicants - Nazir S/o Meeru Khan, Nazir Khan S/o Jiya Khan, Jagmohan Singh S/o Gurunam Singh and Khanu Khan @ Khaniya S/o Maruf. The police arrested certain persons on 13.09.2009 and on their information, recovered another haul of arms on 13.09.2009 containing arms, ammunition and explosives RDX from the house of accused - Soda Khan @ Sobar @ Luniya. The information regarding arms was provided by applicant - Nazir S/o Meeru and in his presence the same arms were recovered on 13.09.2009.
The police conducted thorough investigation and concluded that huge quantity of arms and ammunition substance was supplied by the smugglers of Pakistan across the border to co-accused - Soda Khan @ Sobar @ Luniya and others. It was also concluded that accused - Soda Khan @ Sobar @ Luniya and some of the applicants were in contact with the smugglers of Pakistan and on their instructions the said arms and explosives were to be supplied to the members of terrorist organization Babbar Khalsa of Punjab. The police also concluded that the applicant - Jagmohan Singh S/o Gurunam Singh along with one another person was supposed to receive the said arms and explosives on behalf of terrorist organization Babbar Khalsa of Punjab and for that purpose he came to Jodhpur but before that he got the information that the police seized the arms and ammunition, therefore, he returned from Jodhpur. (Downloaded on 03/12/2021 at 09:13:20 PM)
(12 of 15) [SOSA-507/2021] To prove the charges against the applicants, the prosecution produced bunch of evidence which includes the information supplied by the accused persons regarding the arms and ammunition hidden by them and on the basis of the said information, recoveries of arms, ammunition and explosives were made. The prosecution also produced evidence of this effect that applicant - Nazir S/o Meeru provided information regarding arms and explosives along with accused - Soda Khan @ Sobar @ Luniya and on their information the same were recovered.
The prosecution produced the evidence against applicant - Nazir Khan S/o Jiya Khan to the effect that he along with co-accused - Soda Khan @ Sobar @ Luniya went to Barmer in a Bolero Jeep with the arms and explosives with the intention to supply the same to the members of terrorist organization Babbar Khalsa of Punjab at Barmer, however, when they failed to reach Barmer, the arms and ammunition were taken back and buried into the ground from where the same were recovered by the police on 08.09.2009.
The prosecution also produced the evidence before the trial court that some quantity of the arms and explosives were taken away by accused applicant - Khanu Khan @ Khaniya S/o Maruf, however, a meeting took place between co-accused - Soda Khan @ Sobar @ Luniya, applicants viz. Nazir S/o Meeru Khan, Mubarak S/o Haji Hameer and others. As per the decision taken in the said meeting, applicant - Khanu Khan @ Khaniya S/o Maruf returned the arms and ammunition to co-accused - Soda Khan @ Sobar @ Luniya, however, the Pakistani shawl, in which the arms and ammunition were packed, remained with applicant - Khanu Khan (Downloaded on 03/12/2021 at 09:13:20 PM) (13 of 15) [SOSA-507/2021] @ Khaniya S/o Maruf, which was recovered by the police on his information along with three diaries.
To prove the presence of applicant - Jagmohan Singh S/o Gurunam Singh at Jodhpur, the prosecution has produced some of the persons as evidence enroute from Punjab to Jodhpur such as STD Booth owner, Dhaba owner and employees, who identified applicant - Jagmohan Singh S/o Gurunam Singh in an identification parade conducted in the presence of concerned Magistrate PW-74, however, during the course of trial, those witnesses did not support the prosecution story and turned hostile but they admitted their signatures on the Identification Parade Memo. The concerned Magistrate PW-74 in his evidence before the trial court has verified the identification parade conducted by him wherein witness - Jagdish and Mahesh identified applicant - Jagmohan Singh S/o Gurunam Singh.
So far as applicant - Mubarak S/o Haji Hameer is concerned, though the witnesses, who gave their statements before the police that the mobile SIMs were used by applicant - Mubarak S/o Haji Hameer, did not support the prosecution story and turned hostile but the trial court relying on the information given by applicant - Mubarak S/o Haji Hameer to the police and the corroborating evidence available on record, found applicant - Mubarak S/o Haji Hameer guilty.
The police preserved the foot moulds, which were taken from the place, where the huge quantity of arms and explosives were recovered on 08.09.2009 and compared them from the foot moulds of co-accused - Soda Khan @ Sobar @ Luniya and (Downloaded on 03/12/2021 at 09:13:20 PM) (14 of 15) [SOSA-507/2021] applicant - Nazir Khan S/o Shri Jiya Khan and the same were found matched.
The trial court after taking into consideration the said piece of evidence has held the accused applicants guilty. The trial court has also taken into consideration the fact that earlier also some cases were filed against the applicants in relation to the similar type of offences. It is true that in those cases, some of the accused persons were either acquitted or discharged but the facts remain that those cases were filed against them for similar type of offences.
So far as applicants viz. Nazir S/o Meeru Khan, Jagmohan Singh S/o Gurunam Singh and Khanu Khan @ Khaniya S/o Maruf are concerned, they are behind the bars from around 12 years but looking to the fact that a huge quantity of arms and explosives was recovered in the matter, which could have been used for terrorist activities in the nation to threaten the sovereignty and integrity of the country, the sentence awarded to them by the trial court cannot be suspended merely on account of their custody period.
So far as the sentence served by applicants viz. Nazir S/o Meeru Khan and Mubarak S/o Haji Hameer is concerned, applicant - Nazir S/o Meeru Khan has served only 5 years of sentence and applicant - Mubarak S/o Haji Hameer has served around 2 years of sentence till date and as such the argument regarding long period of custody is not available to them.
After carefully scrutinizing the record of the trial court and taking into consideration the totality of the facts and (Downloaded on 03/12/2021 at 09:13:20 PM) (15 of 15) [SOSA-507/2021] circumstances of the case, we are not inclined to suspend the substantive sentence awarded to the accused applicants.
Accordingly, these application for suspension of sentence preferred on behalf of the applicants are rejected.
(ANOOP KUMAR DHAND),J (VIJAY BISHNOI),J
Abhishek Kumar
S.Nos.1 to 5
(Downloaded on 03/12/2021 at 09:13:20 PM)
Powered by TCPDF (www.tcpdf.org)