Rajasthan High Court - Jodhpur
Barket Ali @ Baki And Ors vs State on 8 November, 2019
Bench: Indrajit Mahanty, Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 17/2016
1. Barket Ali @ Baki S/o Khan Mohammed, By Caste
Musalman,
2. Jumme Khan @ Jumma S/o Suleman Khan @ Sultan Khan,
By Caste Musalman,
3. Ayub Khan @ Jubba S/o Shreef Khan, By Caste Musalman,
4. Ameen Khan @ Minni S/o Hussain Khan, By Caste
Musalman,
5. Liyakat Ali S/o Khudabaksh, By Caste Musalman
All resident of Sardargarh, Police Station Suratgarh, District
Sri Ganganagar.
----Appellants
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. H.S. S. Kharlia, Sr. Advocate,
assisted by Mr. Digvijay Singh.
For Respondent(s) : Mr. Anil Joshi, Public Prosecutor.
For complainant : Mr. Pradeep Shah.
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE SANDEEP MEHTA
JUDGMENT
Date of Pronouncement: 08/11/2019
Judgment reserved on : 18/10/2019
Reportable
BY THE COURT : (PER HON'BLE MEHTA, J.)
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1. The appellants herein have been convicted and sentenced as below vide judgment dated 17.12.2015 passed by the learned Additional Sessions Judge, Suratgarh, District Sri Ganganagar in Sessions Case No.02/2012 (33/2010):
Barket Ali @ Bakki S/o Khan Mohammed Offences Sentences Fine Fine Default Under Section sentences 302 IPC Life Imprisonment Rs.25,000/ 2 Years Additional S.I. 307/149 IPC 10 Years' R.I. Rs.10,000/ 1 Year's Additional S.I. 148 IPC 2 Years' R.I. Rs.3,000/- 6 Months' Additional S.I. 323/149 IPC 6 Months' R.I. - -
5/27 of the 3 Years' R.I. Rs.5,000/- 6 Month' Arms Act Additional S.I. 3/25 of the 2 Years' R.I. Rs.5,000/- 6 Months' Arms Act Additional S.I.
Jumme Khan @ Jumma S/o Suleman Khan @ Sultan Khan Offences Sentences Fine Fine Default Under Section sentences 302/149 IPC Life Imprisonment Rs.25,000/ 2 Years Additional S.I. 307 IPC 10 Years' R.I. Rs.10,000/ 1 Year's Additional S.I. 148 IPC 2 Years' R.I. Rs.3,000/- 6 Months' Additional S.I. 323/149 IPC 6 Months' R.I. - -
5/27 of the 3 Years' R.I. Rs.5,000/- 6 Month' Arms Act Additional S.I. 3/25 of the 2 Years' R.I. Rs.5,000/- 6 Months' Arms Act Additional S.I. (Downloaded on 08/11/2019 at 11:37:23 PM) (3 of 37) [CRLA-17/2016] Ayub Khan @ Jubba S/o Shreef Khan, Offences Sentences Fine Fine Default Under Section sentences 302/149 IPC Life Imprisonment Rs.25,000/ 2 Years Additional S.I. 307/149 IPC 10 Years' R.I. Rs.10,000/ 1 Year's Additional S.I. 148 IPC 2 Years' R.I. Rs.3,000/- 6 Months' Additional S.I. 323 IPC 6 Months' R.I. - - Ameen Khan @ Minni S/o Hussain Khan Offences Sentences Fine Fine Default Under Section sentences 302/149 IPC Life Imprisonment Rs.25,000/ 2 Years Additional S.I. 307/149 IPC 10 Years' R.I. Rs.10,000/ 1 Year's Additional S.I. 148 IPC 2 Years' R.I. Rs.3,000/- 6 Months' Additional S.I. 323/149 IPC 6 Months' R.I. - - Liyakat Ali S/o Khudabaksh, Offences Sentences Fine Fine Default Under Section sentences 302/149 IPC Life Imprisonment Rs.25,000/ 2 Years Additional S.I. 307/149 IPC 10 Years' R.I. Rs.10,000/ 1 Year's Additional S.I. 148 IPC 2 Years' R.I. Rs.3,000/- 6 Months' Additional S.I. 323/149 IPC 6 Months' R.I. - -
All the sentences were ordered to run concurrently.
2. Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374(2) Cr.P.C.
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3. Brief facts relevant and essential for deciding the instant appeal are noted herein below:
An incident of gun firing took place at Village Sardargarh, District Sri Ganganagar on 02.07.2010 in the morning at about 11 o' clock in the lane near the Nohra of Munsaf Ali and Darey Khan resulting into the death of one Smt. Reshma and infliction of injuries to one Munsaf Ali. The police officials of the Police Station Suratgarh Sadar, including the SHO Rajesh Kumar, reached the place of the incident. A report of the incident was allegedly submitted to the SHO by Shri Darey Khan but the SHO decided not to register an FIR on the basis thereof. Munsaf Ali, who was injured in the incident, was admitted at the Government Hospital, Suratgarh. The SHO, Suratgarh, had sent the Assistant Sub- Inspector, Hukam Chand (PW-14) to the Government Hospital, Suratgarh who recorded the Parcha Bayan of Munsaf Ali (Ex.P/1) at the hospital at 01.30 pm. wherein, he alleged that in the night at about 10.00-10.30 pm., while he was at his home, Barket Ali called him and threatened that if he (Munsaf Ali) intended to load a truck of buffaloes then, he would have to pay extortion money. Munsaf Ali disconnected the phone. In the morning of 02.07.2010 at about 11 O' Clock, while Munsaf Ali was at home; Jumme Khan, Barket Ali, Liyakat Ali, Ayub Khan, Rustam, Ameen Khan, Sadhu Khan and Julf Khan collected in the lane outside and started creating a ruckus. Jumme Khan was having a 12 Bore Pistol which he fired towards Munsaf Ali and the resultant gunshot hit on the right hand of the first informant. At that very point of time, Ayub Khan gave a blow with a gandasi on the right wrist of the first (Downloaded on 08/11/2019 at 11:37:23 PM) (5 of 37) [CRLA-17/2016] informant. Sadhu Khan, who was armed with a lathi, gave a blow on the left elbow of Shri Munsaf Ali. His sister Reshma tried to intervene on which, Barket Ali, who had a 12 Bore Pistol in his hand, fired towards her. The resultant gunshot hit on the chest of Reshma who fell down and expired on the spot. Liyakat Khan fired a gunshot with a 12 Bore Pistol which missed its mark and went off in the air. The other accused were having lathis in their hands and were hurling exhortations that the complainant party should be killed. The accused were having three motorcycles with them. On hearing the cries of the informant, Riyasat Ali, Falak Sher and Darey Khan (father of Munsaf Ali) came around and challenged the accused on which, they escaped on their motorcycles. Munsaf Ali (injured) was taken in a vehicle and was admitted to the Government Hospital Suratgarh by Hakam Ali, Maru Khan, and Akhtar Ali. On the basis of this Parcha Bayan, an FIR No.192/2010 (Ex.P/83) was registered at the Police Station Suratgarh Sadar for the offences under Sections 302, 307, 336, 147, 148, 149 of the IPC and Section 27 of the Indian Arms Act.
4. A very significant feature of the case which requires a mention here is that before the Parcha Bayan of Munsaf Ali came to be recorded by the ASI Hukam Chand, the SHO Shri Rajesh Kumar, who had arrived at the village Sardargarh, claims to have recorded an oral statement of Darey Khan (the father of Munsaf Ali) at the place of the incident at 12.15 pm. on 02.07.2010 (Ex.D/5) wherein, Darey Khan alleged that Bakki (Barket Ali) called Munsaf Ali in the night of 01.07.2010 at about 10.00-10.30 pm. and demanded extortion money for permitting the loading of the truck of buffaloes. The call was immediately disconnected. In (Downloaded on 08/11/2019 at 11:37:23 PM) (6 of 37) [CRLA-17/2016] the morning at about 11.00-.11.15 am., Darey Khan, his son and other members of the family were present in their house. At that point of time, Jumme Khan, Barket Ali, Ayub Khan, Liyakat Ali, Ameen Khan, Sadhu Khan, Julf Khan and Rustam came and collected outside their house on which, the informant and his son Munsaf Ali came out in the lane. Jumme Khan was having a pistol with which, he fired a gunshot which hit Munsaf Ali on his right hand. Ayub Khan, who was armed with a Gandasi, inflicted a blow thereof on the right hand of Munsaf Ali. Sadhu Khan gave a lathi blow to Munsaf Ali. His daughter Reshma tried to intervene on which, Barket Ali fired a gunshot which landed on her chest. She fell down and died on the spot. Liyakat Ali made an aerial fire with his pistol. The other accused were raising exhortations that all should be killed. At that point of time, Riyasat Ali, Falak Sher and other villagers reached there and challenged the accused who escaped on their motorcycles. Reshma's deadbody was lying on the spot whereas Munsaf Ali had been taken for treatment to Suratgarh Government Hospital. Surprisingly, this statement which was taken down in writing and signatures of Darey Khan were also appended on it, gave out complete details of the incident and disclosed cognizable offences and the SHO Rajesh Kumar made a note to this effect below the same yet he did not choose to register this earlier statement to be the FIR.
5. Be that as it may. The Parcha Bayan of Shri Munsaf Ali (Ex.P/1) which was recorded by the ASI Hukam Chand at the Government Hospital, Suratgarh at 01.30 pm. was forwarded to the Police Station Suratgarh where an FIR No.192/2010 (Ex.P/83) (Downloaded on 08/11/2019 at 11:37:23 PM) (7 of 37) [CRLA-17/2016] was registered, as mentioned above. Even before the FIR had been registered, the SHO Rajesh Kumar proceeded to prepare the Site Inspection Plan (Ex.P/2) and the Site Inspection Memo (Ex.P/2A) at about 12.40 pm. As per the site inspection plan, which was purportedly prepared on the basis of details provided by Darey Khan to the SHO, pin pointed spots where the accused were standing; from where they fired the gun shots; and where the injured and the deceased were standing, are noted. As per these reference points marked in the site inspection memo (Ex.P/2A) (which is being reproduced herein below for the sake of ready reference), the accused initially collected at the mark 'A' outside the house of Munsaf Ali. The distance between point 'A' from where, Jumme Khan allegedly fired at Munsaf Ali and mark 'D' where the complainant, the deceased and the injured were standing, has been mentioned as 30-35 feet in the site inspection plan (Ex.P/2). It is also mentioned that from this very point 'A', which is nearby the boundary wall, Barket Ali scaled and jumped into the courtyard of Munsaf Ali's house, stood at mark 'B' and fired towards mark 'C' (the main gate of the house) where Reshma was standing. The distance between the mark 'B' and 'C' is mentioned as 28-30 feet in this site inspection plan. Two empty cartridges were shown lying at the marks X1 and X2 in the lane whereas one empty cartridge was allegedly lying at the mark X3 inside the courtyard of Shri Darey Khan's house. Some pellets were also seen lying near marks 'C' and 'D' and some had got embedded in the walls nearby. The SHO proceeded to seize the incriminating articles lying at the place of the occurrence. The deadbody of Reshma was sent to the (Downloaded on 08/11/2019 at 11:37:23 PM) (8 of 37) [CRLA-17/2016] Government Hospital Suratgarh for autopsy. The injury report of Shri Munsaf Ali was procured. The accused were arrested in the following sequence:-
Name of accused Date of Time Exhibits
arrest
Barket Ali 03.07.2010 04.30 pm. Ex.P/22
Jumme Khan 04.07.2010 07.10 pm. Ex.P/23
Ayub Khan @ Jubba 13.07.2010 06.40 pm. Ex.P/26
Ameen Khan @ Minni 10.07.2010 06.30 pm. Ex.P/25
6. The Investigating officer claims to have recorded
informations of the accused under Section 27 of the Evidence Act and effected recoveries from them in the sequence mentioned below:
Recovery at the instance of accused Barket Ali:
Ex.P/9 06.07.2010 08.05 am. One 12 bore country made pistol and two live cartridges of 12 Bore Gun Recovery at the instance of accused Jumme Khan:
Ex.P/10 06.07.2010 08.40 am. One 12 bore country made
pistol and one live cartridge
of 12 Bore Gun
Ex.P/18 08.07.2010 10.20 am. One Gandasi
Recovery at the instance of accused Ayub Khan @ Jubba: Ex.P/11 14.07.2010 06.10 pm. One iron gandasi Recovery at the instance of accused Ameen Khan @ Minni:
Ex.P/12 13.07.2010 04.40 pm. One gandasi
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7. The recovered pistols, the cartridges seized from the spot and the pellets taken out by the doctor during the surgical procedure carried on the person of Munsaf Ali and autopsy on the body of Reshma were forwarded to the FSL, Bikaner for analysis.
The blood stained articles were forwarded to the FSL Jodhpur as well as at Bikaner for serological and chemical examination.
8. After conclusion of investigation, the police filed a charge- sheet against four accused namely Jumme Khan, Barket Ali, Ameen Khan and Ayub Khan for the offences under Sections 302, 307, 323, 147, 148 and 149 IPC. The investigation was kept pending under Section 173(8) Cr.P.C. against Sadhu Khan, Julf Khan, Liyakat Ali and Rustam Ali and against Barket Ali and Jumme Khan for receiving sanction for the offence under Section 3/25 of the Indian Arms Act. A complete charge-sheet with sanction procured from the District Magistrate for the offence under Section 3/25 of the Arms Act was filed against Barket Ali and Jumme Khan. A final report was submitted qua the accused Sadhu Khan, Julf Khan, Liyakat Ali and Rustam Khan.
9. The case was committed to the Court of the Additional Sessions Judge, Suratgarh for trial. The trial court framed charges against the charge-sheeted accused persons for the above mentioned offences. They pleaded not guilty and claimed trial.
10. The prosecution examined four witnesses Munsaf Ali, Falku, Darey Khan and Farida by 28.05.2012 at which stage, the learned (Downloaded on 08/11/2019 at 11:37:23 PM) (10 of 37) [CRLA-17/2016] Additional Public Prosecutor moved an application under Section 319 Cr.P.C. with a prayer to summon the accused who had been left out by the I.O. The application was partly allowed by the order dated 22.08.2012 and Liyakat Ali alone was summoned as an additional accused to face trial with the previously charge-sheeted accused. De-novo trial was started and the four witnesses already examined earlier were re-examined. A total of 14 witnesses were examined in the de-novo trial and 84 documents were exhibited by the prosecution in order to prove its case. The accused were questioned under Section 313 Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution evidence. They denied the same and claimed to have been falsely implicated for ulterior motive. Four witnesses were examined and 19 documents were exhibited in support of defence theory. After hearing the arguments advanced by the prosecution and the defence counsel and appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellants as above. Hence this appeal.
11. Shri H.S.S. Kharlia, learned Senior Counsel assisted by Shri Rishabh Handa, learned counsel representing the appellants, vehemently and fervently contended that the entire prosecution story is false and fabricated. He urged that the whole prosecution case is liable to be discarded on the sole ground that although the statement of Darey Khan which was recorded by the SHO Rajesh Kumar on 02.07.2010 at 12.15 pm. (Ex.D/5) provided the earliest information of the incident, but the SHO Shri Rajesh Kumar did not register the FIR on the basis thereof. He urged that as a (Downloaded on 08/11/2019 at 11:37:23 PM) (11 of 37) [CRLA-17/2016] matter of fact, Parcha Bayan of Munsaf Ali (Ex.P/1) which was treated to be the FIR, can only be termed to be a statement recorded under Section 161 Cr.P.C. As per him, since the signature of Munsaf Ali was got appended on this Parcha Bayan, manifestly, the same is hit by Section 162 Cr.P.C. and cannot be read in evidence for any purpose whatsoever. He further urged that theory of motive putforth in the Parcha Bayan of the injured Munsaf Ali, in the report of Darey Khan and in the sworn testimony of these witnesses, is totally false and cooked up. The I.O. did not collect any evidence regarding the criminal antecedents of Barket Ali to fortify the fictitious prosecution allegation that he was indulged in extortion-like activities. As per statement of Munsaf Ali (PW-1), the call made to him by Barket Ali on 01.07.2010 was the first instance of him making an attempt of extortion. He contended that it does not stand to reason that without having any kind of influence or criminal background, Barket Ali would try to extort money from another person living in the same village. He contended that the statements of the material prosecution eye-witnesses were recorded by the investigating agency on multiple occasions and there are significant contradictions in each of these statements. For challenging the evidence of the eye-witnesses Falku (PW-2), Darey Khan (PW-3) and Farida (PW-4), the thrust of Shri Kharlia's arguments was that if the evidence of these witnesses is minutely scrutinized, it would become apparent that they have given a parrot-like distorted version of the incident. The contradictions and omissions appearing in the statements of these witnesses are verbatim the same and thus, their evidence deserves to be (Downloaded on 08/11/2019 at 11:37:23 PM) (12 of 37) [CRLA-17/2016] discarded in toto. As per Shri Kharlia, it is clearly a case wherein, the prosecution has concealed not only the first information report but also the genesis of the occurrence thereby, destroying the entire edifice of the case. He further contended that the recoveries effected at the instance of the accused are patently false and fabricated because the prosecution failed to lead appropriate evidence so as to establish that the weapons were actually recovered in furtherance of the informations provided by the accused to the I.O. under Section 27 of the Evidence Act on the dates set out in the recovery memos. He further urged that upon a comparative analysis of the medical evidence as deposed by the doctor who issued the postmortem report of Reshma and the injury report of the injured Munsaf Ali vis-a-vis the site inspection plan and the sworn testimony of Munsaf Ali, Darey Khan and the I.O., the entire prosecution case would stand falsified. He urged that investigating officer, pin-pointedly fixed the spots from where the accused fired the gunshots and where the deceased and the injured were standing. These very distances and positions were accepted by the eye-witnesses. He contended that as per the prosecution theory, the distance from where, Jumme Khan fired at Munsaf Ali, was 30-35 ft. whereas the distance from where Barket Ali fired at Reshma was 28-30 ft. Drawing the Court's attention to the postmortem report of Smt. Reshma (Ex.P/33) and the injury report of Shri Munsaf Ali (Ex.P/27A), Shri Kharlia pointed out that the doctor (PW-8) Dr. Vijay Prakash Bhadu noticed blackened collar like injury marks on the wounds while conducting the examination. He urged that these blackened collarlike wounds could only have been caused if both the gunshots had been fired (Downloaded on 08/11/2019 at 11:37:23 PM) (13 of 37) [CRLA-17/2016] from close range of within 6-10 feet. He further submitted that all the prosecution eye-witnesses stated that the gunshots were fired by the accused Jumme Khan at Shri Munsaf Ali while both were standing on level ground whereas, Barket Ali scaled the boundary wall of the complainant's house and fired at Reshma from a distance of about 28-30 ft., while standing in the courtyard. Referring to the medical evidence, Shri Kharlia pointed out that apart from the fact that the marks of firearm wounds noticed on the deadbody of Reshma as well as Munsaf Ali were blackened and collarlike, in addition thereto, the trajectory of the wounds was descending which, as per him, clearly indicates that the gunshots must have been fired by someone who was standing higher as compared to the injured and the deceased. He thus urged that as there is a grave irreconcilable contradiction inter-se between the medical evidence vis-à-vis the ocular testimony and since, there was an apparent fabrication by the prosecution in the matter of registering the FIR, the medical evidence deserves to be given precedence and the ocular testimony which is inconsistent and has to be rejected. Referring to the evidence of Darey Khan (PW-3), who was associated in the recovery proceedings of the weapons, Shri Kharlia's aspersion was that the entire process of effecting recoveries is vitiated. He further submitted that there is serious discrepancy in the evidence of the investigation officer regarding sealing of the weapons and forwarding thereof to the FSL and hence, the circumstance of recoveries cannot be read in evidence against the accused. He further contended that the empty cartridges lying at the place of the occurrence did not match with the firing pin impression of the firearm recovered from Barket Ali (Downloaded on 08/11/2019 at 11:37:23 PM) (14 of 37) [CRLA-17/2016] and hence, recovery of the weapon loses significance. Shri Kharlia further urged that eight assailants were named in the FIR as well as in the sworn testimony of the prosecution witnesses but the I.O. exonerated four of them while filing the charge-sheet. The application filed by the prosecution for summoning the left out accused was also accepted to the extent of only one accused Liyakat Ali and thus, as per Shri Kharlia, the entire prosecution case has to be discarded. On these grounds, Shri Kharlia implored the Court to set aside the impugned judgment and acquit the accused appellants of the charges.
12. Per contra, learned Public Prosecutor and Shri Pradeep Shah, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by Shri Kharlia and urged that the prosecution case is well proved and established by the evidence of the injured Munsaf Ali (PW-1) and the eye witnesses Falku (PW-2), Darey Khan (PW-3) and Farida (PW-4). They urged that the testimony of these eye witnesses is corroborated in material particulars by the evidence of the medical jurist and the incriminating recoveries made from the accused. The investigating officer's evidence and the FSL report fortify the prosecution case against the accused beyond all manner of doubt. They urged that there was no such prior enmity between the parties which could have motivated the complainant party to falsely implicate the accused in this case. They further urged that the incident took place in the broad day light and thus, there was absolutely no reason as to why the prosecution witnesses would (Downloaded on 08/11/2019 at 11:37:23 PM) (15 of 37) [CRLA-17/2016] not have identified the assailants. They further urged that the minor contradictions pointed out by the defence in the statements of the prosecution witnesses are far too trivial and insignificant so as to affect the credibility of the entire prosecution case. They further submitted that the assault was like a terrorist attack and thus, minor variations were bound to occur in the evidence of the eye-witnesses while they described the ghastly sequence of events. As per them, it cannot be expected that in such a situation, it would have been possible for the eye-witnesses to give minute/ graphic details of the incident in the exact manner as it happened because they would be busy in trying to save their lives from the assailants who were armed with dangerous weapons inculding firearm. They contended that if the witnesses had given a parrot-like narrative of the incident then, their testimony might have been castigated as being tutored. They submitted that natural variations are bound to occur in the evidence of truthful witnesses and thus, the learned trial court was perfectly justified in accepting the evidence of the prosecution witnesses and holding the accused appellants guilty of the offences by the impugned judgment which, as per them, does not suffer from any illegality, infirmity or perversity whatsoever warranting interference by this Court in the appeal.
13. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record.
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14. An indisputable conclusion which can be drawn from the material available on record is that the prosecution has tried to suppress the original FIR (the one submitted by Darey Khan) and the very registration of the FIR on the basis of Parcha Bayan of Munsaf Ali is seriously questionable. It is an admitted position as reflected from the oral as well as the documentary evidence of the witnesses more particularly SHO Rajesh Kumar (PW-12) that he received telephonic report of the incident, reached the place of the occurrence and recorded the statement of Darey Khan (Ex.D/5) at 12.15 pm. A note of receiving the report was appended on this statement at 03.00 pm. Thus, there was no reason as to why, the SHO did not proceed to promptly register the FIR on the basis of this statement by forwarding the same to the police station. This patent lacuna in the prosecution case creates a doubt in the mind of the Court that the SHO himself was not sure that Darey Khan was an eye-witness of the incident and thus, he was marking time awaiting the statement of Munsaf Ali who had been sent to the Hospital in an injured condition. However, the SHO had no means of ensuring that Munsaf Ali who had received the gunshot injury would be in a position to lodge any report and thus, prudence and lawful procedure required that the SHO Rajesh Kumar should have taken steps to register the statement of Shri Darey Khan as an FIR. If, the statement (Ex.D/5) had been treated to be the FIR, manifestly, Parcha Bayan of Munsaf Ali (Ex.P/1) which came to be recorded later, would fall within the category of a statement under Section 161 Cr.P.C. and since, the same bears the signature of (Downloaded on 08/11/2019 at 11:37:23 PM) (17 of 37) [CRLA-17/2016] Munsaf Ali, it would be hit by Section 162 Cr.P.C. Thus, we have no hesitation in concluding that the prosecution to be specific, the SHO Rajesh Kumar, is guilty of suppressing the real FIR in this case.
15. However, we would still be required to deliberate upon the aspect that merely because the SHO acted in an illegal manner in the matter of registering the FIR, whether the testimony of the prosecution eye-witnesses can be thrown out entirely only for this reason. Apparently, Munsaf Ali had received a gunshot and, therefore, he would be the best witness to state about the sequence of events which unfolded at the scene of the occurrence. We have carefully perused the statement of Shri Munsaf Ali (PW-
1). He stated that on the night previous to the incident i.e. on 01.07.2010, the accused Barket Ali called him and demanded extortion money for allowing loading of buffaloes for transportation. However, there is no allegation of prosecution that the accused Barket Ali was having any criminal antecedents or was otherwise having any such clout which could give him the leverage to indulge in an extortion like activity in his own village. The accused and the victims reside in the same village and there is no allegation whatsoever that prior to this call, the accused party had ever caused any hindrance in the vocation of the complainant party which was presumably dealing in cattle. Therefore, it just does not stand to reason that one fine day, the accused would randomly decide to make an attempt of extortion from Munsaf Ali without having any such influence which could (Downloaded on 08/11/2019 at 11:37:23 PM) (18 of 37) [CRLA-17/2016] persuade him to cough up the money. No call detail records were procured by the I.O. to support this allegation that the accused called and demanded extortion money from Shri Munsaf Ali on 01.07.2010. Thus apparently, the theory regarding the accused Barket Ali having made an extortion call to the complainant during the late hours of 01.07.2010 appears to be nothing but a figment of imagination. There is another reason why we are persuaded to hold so. There is no allegation of the prosecution witnesses that any attempt was being made by Munsaf Ali to load the buffaloes on the truck on the fateful day or that the accused took up the weapons because their alleged demands had not been satisfied. Rather, there is no plausible evidence on record to show that Munsaf Ali was indulged in buffalo trading except for his own assertion in evidence. These significant facts are sufficient to satisfy the Court that the prosecution has concealed the true genesis of the incident. As per Munsaf Ali's narration of the incident, he was at his house on 02.07.2010. At about 11.30, he heard the voices of the accused party i.e. Jumme Khan, Barket Ali, Sadhu Khan, Liyakat Ali, Julf Khan, Ameen Khan, another Liyakat Ali and Rustam Ali and came out of his house. At this point, Shri Munsaf Ali modulated his story and claimed that only the five appellants were waiting outside his house on three motorcycles. Immediately on seeing Munsaf Ali, the accused Jumme Khan fired a gunshot towards him with the intention of killing him. The gunshot hit Munsaf Ali on his right arm and he fell down by the impact thereof. Ayub gave him a gandasi blow which hit him on the left arm. Thereafter, Sadhu Khan gave him a lathi blow which landed on on his left hand. On hearing the commotion, his sisters (Downloaded on 08/11/2019 at 11:37:23 PM) (19 of 37) [CRLA-17/2016] Farida and Reshma; father Darey Khan and other family members came out. His sister Reshma was the first to arrive at the scene of occurrence. Barket Ali, scaled the wall of his house and fired a gunshot which hit Reshma on her chest.
16. Munsaf Ali of-course stated in the cross-examination that when he came out of the gate of his house, the accused were standing at a distance of 2-3 steps from the gate and persisted that the fire hit him afront while he was standing in the middle of the main gate. He stated that he was standing straight and did not turn in any manner. The witness stated that he fell down between the gate of the house on receiving the gun-shot injury. The witness further admitted on cross-examination that on hearing the noise of the gun-shots, his sisters Farida and Reshma, mother, brother, wife and father came out running. Reshma was leading them. When Reshma received the gunshot injury, she was at a distance of 4-5 ft from him. He then clarified that when the second gunshot was fired, his sisters (including Reshma), wife and other relatives were inside the house.
17. For appreciating the prosecution case in a better perspective and for clarity of facts, the site inspection plan (Ex.P/2) is being reproduced herein below by copying the original with the aid of a scanning device:
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18. Manifestly, from the site inspection plan and site inspection memo (Ex.P/2) reproduced supra and the I.O.'s narrative, it is clear that the deadbody of Reshma was found lying just outside the main gate of the house which is on the south western corner of the courtyard. The head was pointing towards the lane and the feet were pointing towards the gate of the house. Barket Khan scaled the wall which is on the south eastern corner of the house, stood at point 'B' and fired the gunshot at Reshma. There is no evidence on record to show that the dead body was moved after (Downloaded on 08/11/2019 at 11:37:23 PM) (21 of 37) [CRLA-17/2016] Reshma had fallen down on receiving the fatal gunshot injury. Manifestly, since Reshma was the first to reach near Munsaf Ali, the other family members must have been standing behind Reshma and Munsaf Ali when Barket Ali fired from point B. The distance between points B and C is 28-30 ft. as per measurements noted in the site inspection memo (Ex.P/2A) which was thoroughly fortified in the evidence of the material prosecution witnesses. Taking into account all these facts and circumstances as appearing in the prosecution evidence, it is absolutely unbelievable that the fire made by Barket Ali from point 'B' could have hit the chest of Smt. Reshma who was standing at point 'C' and that too without harming the witnesses who were standing behind her.
19. Since Munsaf Ali received the concentrated pellet wounds on the right forearm only, manifestly, for him to receive such injuries, he would have to be standing outside the gate and facing eastwards because as per the evidence of all other prosecution eye-witnesses and the I.O.'s conslusions, Jumme Khan fired the gunshot at Munsaf Ali while standing at point 'A'.
20. On a perusal of the site inspection memo (Ex.P/2) (supra), it becomes amply clear that the deadbody of Reshma was seen lying just beyond the gate posts of the house of Shri Munsaf Ali with her feet pointing outside. Clearly thus, the case as set up in the evidence of Munsaf Ali regarding the manner and the locations from which, the gunshots were fired at him as well as the deceased is falsified in toto. In arguendo, assuming for a moment that Munsaf Ali gave the correct description of the manner in (Downloaded on 08/11/2019 at 11:37:23 PM) (22 of 37) [CRLA-17/2016] which, he received the gunshot injury on his hand, definitely, the version as stated by the witness regarding the firearm injury caused to Reshma is not trustworthy. In all probability, the witness must have fallen down and would have lost his senses after receiving the significant gunshot hit on his arm and might not have been in a position to see the gunshot fired at Reshma. This fact is corroborated from the answer given by the witness in cross-examination that he came to know about the death of his sister on the next day while he was hospitalised at Suratgarh. Also, regarding the distance from which the fire was made by Jumme Khan, the witness, when grilled, admitted in cross- examination that Jumme Khan and the other accused were standing at a distance of 30-35 ft. from him when the shots were fired. The fact that the empty cartridges, purportedly ejected from Jumme Khan's gun, were recovered from the points X/1 & X/2 mentioned in the site plan (Ex.P/2) completely discredits the version of Munsaf Ali that he was standing at the gate and the accused Jumme Khan fired the gunshot at him from a distance of 5-7 feet.
21. Falku (PW-2), deposed that on the fateful day at about 11.00-11.30 am., he was passing through the lane of Darey Khan's house. He saw the eight accused named in the FIR armed with pistols and lathis proceeding towards Darey Khan's house. Munsaf Khan came out of his house. The accused abused him. Jumme Khan fired a gunshot which hit Munsaf Ali on his right arm. Sadhu Khan gave a gandasi blow on Munsaf Ali's wrist. Then the witness changed his version and stated that Jumme Khan gave a (Downloaded on 08/11/2019 at 11:37:23 PM) (23 of 37) [CRLA-17/2016] gandasi blow on the right wrist of Munsaf Ali. Sadhu Khan inflicted a lathi blow on the right elbow of Munsaf Ali. Thereafter, the accused started hurling abuses at the family members. Barket Ali jumped over the wall which was 3-4 ft. in height and fired a 12 bore gun towards Reshma which hit her on the chest and she fell backwards. Liyaki (Liyakat) fired in the air and then the accused ran away.
In cross-examination, the witness stated that he was present at the scene of the occurrence when the police arrived. His statement was recorded by the police on the very same day at the spot and that he was not examined by the police on 12.07.2010. Cross-examination from this witness was made in light of the defence theory that he as well as Darey Khan (PW-3) were actually not present at the spot at the time of the incident and arrived much later and were cooked up eye witnesses. A specific suggestion was given to Shri Falku that he was a resident of Suratgarh and that he called the Constable Nagarmal Sharma from Suratgarh and informed him about the incident. The witness admitted this fact. In his second statement recorded as PW-2A, Falku admitted during cross-examination that when he reached the place of the occurrence, he saw blood coming out of the hand of Munsaf Ali.
The witness was pertinently questioned by the defence regarding the place where he was standing when he claims to have seen the incident. The witness stated that he was standing near Babbu Barket's house when the incident took place. If the site inspection plan (Ex.P/2) reproduced (supra) is seen, (Downloaded on 08/11/2019 at 11:37:23 PM) (24 of 37) [CRLA-17/2016] manifestly house of any person named Babbu Barket is not marked therein which creates a significant doubt that Darey Khan and Falku were not present at the scene of the occurrence at the time of incident and must have reached much later.
22. PW-3 Darey Khan was also examined twice. In his first statement recorded by the trial court on 19.03.2012, he stated that Munsaf Ali received an extortion call on 01.07.2010. On the next morning, at about 11 o' clock, the witness, his wife, his daughter Reshma and Munsaf Ali were sitting in their house. They heard commotion from outside and saw Jumme Khan, Barket Ali @ Bakku, Liyakat Ali, Sadhu Khan, Rasu Ali and Ayub standing there. Jumme Khan fired a gunshot at Munsaf Ali which hit his right hand. Thereafter, Jumme Khan gave a gandasi blow on the right palm of Munsaf Ali and Sadhu Khan gave a lathi blow on Munsaf Ali's left hand. Barket Ali jumped over the boundary wall and fired at the chest of Reshma who fell down and expired on the spot. Liyakat Ali also fired a gunshot with the intention of killing them but it went off in the air without causing harm. The accused thereafter escaped on their motorcycles. The witness further stated in his examination-in-chief that two days after the incident, the police brought Jumme Khan and Bakki to Sardargarh. Barket Ali took out a pistol and two live cartridges and handed the same over to the police. Jumme Khan took out a pistol and a cartridge from his house which was seized by the police. 5-7 days later, the police got a gandasi recovered at the instance of Jumme Khan. A couple of days later, a gandasi was recovered at the instance of Ameen. In cross-examination, the witness was confronted with (Downloaded on 08/11/2019 at 11:37:23 PM) (25 of 37) [CRLA-17/2016] numerous contradictions appearing inter-se between the version as stated in his examination-in-chief vis-a-vis his multiple investigational statements. The witness stated that Jumma fired the gunshot at Munsaf Ali from a distance at about 9-10 ft. whereas Reshma received the gunshot from about 4-5 ft. Reshma's body fell down inside the gate and Munsaf Ali was lying at a distance of 2-3 yards from her. The witness stated that he was not examined by the police on the very day of the incident and that Parcha Bayan of Munsaf Ali was also recorded on the day after the incident because Munsaf Ali was not conscious on that day. As per this witness, even the FIR was registered on the day next to the assault. In his second statement recorded as PW-3A, the witness repeated the story as set out in his previous sworn statement. He however modulated the version regarding the recoveries made from the accused so as to match it with the recovery memos. The witness categorically stated that he lodged the FIR at the spot and that Munsaf Ali did not get the case registered. The witness was confronted with his three previous statements recorded by the police under Section 161 Cr.P.C. regarding material omissions and contradictions. The witness was also given a suggestion that he was not at Sardargarh on the day of the incident and reached later with Falku Khan. He denied this suggestion.
23. At this stage, it would be worthwhile to refer to the statement of Constable Nagarmal who was examined as PW-7 during trial. In his cross-examination, the witness stated that Falaksher (Falku) called him on 02.07.2010 between 10-11 O' (Downloaded on 08/11/2019 at 11:37:23 PM) (26 of 37) [CRLA-17/2016] clock and told him that he (Falku) and Darey Khan were at Suratgarh and that Darey Khan's daughter had been murdered at Sardargarh. Apparently thus, the claim of Darey Khan (PW-3) and Falku (PW-2) that they were at Sardargarh and saw a part of the incident with their own eyes, is totally falsified. For reaching to this conclusion, in addition to the inherent improbabilities and infirmities noticed above, in the evidence of these two witnesses, we are also persuaded by the statement of Nagarmal who categorically stated that Falku called him from Suratgarh, and told him that he as well as Darey Khan were present at Suratgarh when the incident happened. The prosecution made no attempt whatsoever to challenge or dispute this significant admission which was elicited by the defence in the cross-examination conducted from Shri Nagarmal.
24. Viewed in light of the statements of Falku (PW-2) and Nagarmal (PW-7), referred to supra, and the material contradictions existing in the evidence of Darey Khan and more particularly, the circumstance that the SHO Rajesh Kumar did not rely upon the statement of this witness (Ex.P/5) and did not register the FIR on the basis thereof, we are of the opinion that the witness appears to be a cooked up eye witness and in all probability, he reached the place of incident at a very late stage and did not see the incident with his own eyes.
25. Farida (PW-4) who was also examined twice during the trial, also named eight accused assailants and gave a story similar to the one deposed by Munsaf Ali and Darey Khan. She admitted in (Downloaded on 08/11/2019 at 11:37:23 PM) (27 of 37) [CRLA-17/2016] her cross-examination that the police came to her house just after the incident but she did not tell anything to them on that day. She admitted that she gave her statement to the police after eight days of the incident. The investigational statement of this witness (Ex.D/8) was recorded as late as on 10.07.2010.
26. From an overall analysis and sifting of the evidence available on record, a very significant contradiction is writ large in the statements of all these witnesses regarding the manner in which, Jumme Khan fired at Munsaf Ali and Barket Ali fired the fatal gun fire at Reshma. While in the FIR, there is no description regarding the manner and the location from where Barket Ali fired the gunshot at Reshma but, when examined during investigation, all the material prosecution witnesses, stated that Barket Ali climbed on the parapet wall of their courtyard and fired the gunshot at Reshma from there. However, when examined in the Court, all the witnesses changed their stance in unison and stated that Barket Ali scaled the parapet wall, came inside the courtyard, stood at point B of Site Inspection Plan (Ex.P/2) and fired the gunshot at Reshma from that location. Manifestly, this improvement, which is common to all witnesses, is very significant and cannot be overlooked or brushed aside lightly. Likewise, there is a significant contradiction regarding the place from where Jumme Khan fired at Munsaf Ali.
27. If the statements of all the four eye-witnesses regarding the manner in which the incident took place, are comparatively analyzed, it is manifest that the contradictions and the omissions appearing therein are almost identical. Thus clearly, all the (Downloaded on 08/11/2019 at 11:37:23 PM) (28 of 37) [CRLA-17/2016] witnesses have modulated their evidence at the trial and have given a stereo typed version so as to suit their own theory and to match the description set out in the site inspection plan (Ex.P/2). As we have already concluded that Darey Khan and Falku are cooked up witnesses, apparently, the site inspection plan was prepared by the I.O. without any input from an eye-witness of the incident. This aspect of the matter would undoubtedly have a significant bearing on the credibility of the entire prosecution case.
28. There is another significant aspect of the matter regarding non-registration of the FIR on the basis of statement of Darey Khan (Ex.D/5) recorded by Rajesh Kumar SHO who was examined as PW-12 at the trial. The witness was extensively cross-examined in relation to the fact that he did not register the FIR on the basis of the statement of Darey Khan (Ex.D/5) which was purportedly recorded by him at the place of the incident. He offered a very lame explanation saying that the ASI Hukam Chand, who had been sent to the Government Hospital, had forwarded the Parcha Bayan of Munsaf Ali which was treated to be the FIR. The SHO claimed that he could not register Ex.D/5 as the FIR because he was busy in investigation. The explanation so offered is totally far fetched and flimsy and if it is accepted, manifestly, the SHO started the investigation without taking steps to register an FIR even though he had received a written report from a self acclaimed eye witness. Even if the SHO had doubt on the veracity of the version set out in the statement of Darey Khan, there was no reason for him not to register the same to be the FIR because law is well settled that anyone can set the criminal law in motion where the allegations involve a cognizable offence. As per the (Downloaded on 08/11/2019 at 11:37:23 PM) (29 of 37) [CRLA-17/2016] mandatory legal procedure to be applied in these circumstances, the statement (Ex.D/5) which was an information providing complete details of commission of the cognizable offence of murder received by the SHO at the earliest point of time, ought to have been registered as the FIR. Had the said statement been registered as an FIR, the statement of Munsaf Ali (Ex.P/1) would have to be treated as a statement under Section 161 Cr.P.C. simplicitor and since, it bears his signature, the same would be hit by Section 162 Cr.P.C. The I.O. Rajesh Kumar prepared the site inspection plan (Ex.P/2) fixing the comparative locations where the injured and the deceased were present; the place from where the accused fired the gunshots and where the victim received the injuries. Since the prosecution relied upon this document as an unimpeachable piece of evidence, there cannot be any reason to doubt the veracity thereof when the evidence is being analysed.
29. As has already been discussed above, the distance from which the fire was allegedly made by Jumme Khan at Munsaf Ali is noted as 30-35 ft. whereas the corresponding distance from where Barket Ali allegedly fired the gunshot at Reshma is noted as 28-30 ft. in the Site Plan and Site Inspection memos (Ex.P/2 and Ex.P/2A respectively).
30. PW-6 Ram Kumar, who was posted as Constable at Police Station Suratgarh Sadar, was associated as a Panch witness in the arrest of the accused Barket Ali and the seizure of motorcycle made at his instance.
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31. PW-7 Nagarmal, who was also posted as Constable at Police Station Suratgarh Sadar, was associated as a Panch witness in the arrest of the accused and the recovery of motorcycle made from him.
32. PW-8 Dr. Vijay Prakash Bhadu conducted medical examination of Munsaf Ali and stated that he noticed 33 punctured wounds on his right arm and forearm. In addition thereto, he also noticed 2 blunt weapon injuries on the right arm and forearm of the injured. He issued the injury report (Ex.P/27). He also conducted postmortem upon the body of Smt. Reshma and noticed 21 gunshot wounds on the chest area. The margins of the wounds were inverted. The wounds were oval in shape and blackened collar like abrasions were present thereupon. In cross- examination, the witness denied knowledge about the distance from which the fire was made at Munsaf Ali. However, regarding the injury of Reshma, the witness categorically stated that firearm injuries caused to her were resulted from a gunshot fired from a distance of 6-12 ft. The doctor did not notice any incised wound on the arm of Munsaf Ali and thus, the allegation that Juume Khan gave him a gandasi blow on the arm is falsified.
33. As per the evidence of the medical jurist, the wounds noticed on the arm of Munsaf Ali and the chest of Reshma were having marks of blackening associated with collar like abrasions. Thus, keeping in mind the opinion of renowned text books of ballistic experts, it can be safely concluded that these gunshots must have been fired from a distance of within 10 ft. The prosecution witnesses have given a totally contrary story alleging that the (Downloaded on 08/11/2019 at 11:37:23 PM) (31 of 37) [CRLA-17/2016] gunshot fired at Munsaf Ali by the accused Jumme Khan while he was standing at about 30-35 ft. whereas the gunshot at Reshma was fired by Barket Ali from a distance of 28-30 ft. Thus, the ocular evidence is at total variance from the medical evidence and the contradiction is so stark that the same cannot be reconciled.
34. PW-9 Mohd. Azharuddin was posted as a Constable at the Police Station Suratgarh Sadar. He carried the sample packages of the case at hand for depositing the same at the FSL.
35. PW-10 Harendra Kumar, who was also posted as a Constable at the Police Station Suratgarh Sadar, snapped the photographs of the place of incident and those of Munsaf Ali at the hospital.
36. PW-11 Dwarka Prasad was posted as a Constable at the Police Station Suratgarh Sadar. He carried five packets of the case at hand for transmission to the FSL Bikaner. He stated that the samples were intact while they were in his possession.
37. PW-12 Rajesh Kumar, being the I.O. of the case, made a deposition regarding the non-registration of the FIR on the basis of statement of Darey Khan (Ex.D/5) which aspect we have already discussed above. In addition thereto, the I.O. undertook the relevant steps of investigation viz. seizure of incriminating material from the spot; procuring the medical report of the injured and the postmortem report of the deceased, preparation of the Panchnama, seizure of the clothes of the injured as well as the deceased. He also recorded the statements of various witnesses. The accused were arrested and recoveries as mentioned above (Downloaded on 08/11/2019 at 11:37:23 PM) (32 of 37) [CRLA-17/2016] were allegedly effected in furtherance of the informations provided by them under Section 27 of the Evidence Act. On a comparative analysis of the various recovery memos vis-a-vis the first sworn statement of Darey Khan (PW-3), it is clear that the recovery memos lose significance because as per the sole attesting witness examined by the prosecution i.e. Shri Darey Khan, the recoveries of the pistols were effected just two days after the incident whereas, Gandasis were recovered five days later. On the contrary, the recovery memos of the pistols (Ex.P/9- Barket Ali) and (Ex.P/10- Jumme Khan) bear the date 06.07.2010 whereas, the recovery memos of the Gandasis (Ex.P/12- Ameen Khan) and (Ex.P/11 - Ayub Khan) bears the dates 13.07.2010 and 14.07.2010 respectively. The other panch witness Mohammed Yaar, who attested the recovery memos, was not examined by the prosecution. Thus, there is a grave discrepancy in the evidence of the prosecution witnesses regarding the dates on which the recoveries were effected and hence, the procedure does not inspire confidence. From the evidence of the I.O., it is clear that he did not find the case proved against the accused Sadhu Khan, Liyakat Ali, Uttam Khan, Ameen Khan and Julf Khan. In cross- examination, the I.O. categorically stated that the locations and distances mentioned in the site inspection plan (Ex.P/2) and the site inspection memo (Ex.P/2A) were noted on the basis of the information provided by Darey Khan. An overall appraisal of the evidence of the I.O. is enough to convince us that the investigation, which was carried out by him, was totally tainted, perfunctory, motivated and lackadaisical.
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In pertinent cross-examination made regarding the
comparative positions of the accused vis-a-vis the injured and the deceased, the I.O. stated as below:
"izn"kZ ih 02 esa edku nkjs[kkW dh nf{k.kh nhokj ikap QqV Åaph gksxhA lh LFkku ij eqUlQ vyh ds lkFk tqEes[kkW oxSŒ Hkh lh IokbZaV FksA lh IokbZaV ij eqUlQ vyh ls tqEes[kkWa vdsyk >xM+k dj jgk FkkA js"kek vUnj ls lh IokbZaV vkbZ mlds ihNs ifjokj ds vU; lnL; Hkh vk;sA lh IokbZaV ls eqyfteku dks gVkus ds ckn ekSds ij js"kek] eqUlQ vyh] fj;klr vyh] nkjs[kkW] Qyd "ksj oxSŒ FksA rc , IokbZaV ls tqEes[kkWa us Mh IokbZaV ij Qk;j fd;kA Mh IokbZaV ij tc Qk;j gqvk rc eqUlQ vyh ds vykok vU; lnL; lh o Mh ds vkl&ikl FksA eSa ;g ugha crk ldrk , IokbZaV ;k ch IokbZaV ls tks Qk;j gqvk] cgkj [kkWa dh nhokj ij tks NjsZa yxs os dkSuls Qk;j ds FksA , o ch IokbZaV ls tks nwjh eSaus uD"kk ekSdk esa IokbZaV tks crk;s o gkykr ekSdk dh nwjh uki dj j[kh FkhA".
38. Manifestly, the comparative positions noted by the IO in the site plan as to where the accused, injured, deceased and the witnesses were standing, are purely conjectural. But, since the star prosecution witness i.e. the injured Munsaf Ali, also corroborated these comparative positions as stated by the I.O., apparently, the entire prosecution theory regarding the manner in which the injured and the deceased received the firearm injuries, comes under a grave cloud of suspicion.
The weapons allegedly recovered at the instance of the accused and the cartridges allegedly lying at the spot were forwarded to the Ballistic Expert for analysis and comparison. A report (Ex.P/81) dated 20.12.2010 was issued by the Forensic Science Laboratory as per which, two 12 Bore Single Barrel Country Made Pistols, which were packed in packets F and G, were found to be serviceable. None of the cartridges recovered from the spot was opined to have been fired from the pistol allegedly recovered at the instance of the accused Barket Ali (Mark (Downloaded on 08/11/2019 at 11:37:23 PM) (34 of 37) [CRLA-17/2016] F). Two empty cartridges allegedly recovered from the spot (Mark C/2 and C/3) were opined to have been fired from the country made pistol recovered at the instance of Jumme Khan. In this context, if the site inspection memo (Ex.P/2A) is seen, the three empty fired cartridges were recovered from the points X/1, X/2 and X/3, vide memorandum (Ex.P/6) wherein, there is no such recital that the individual cartridges had been given marks C/1, C/2 and C/3 at the time of the seizure. However, when the packet marked 'D' in which these cartridges were sealed, was opened at the FSL, the two fired 12 Bore K.F. Special cartridges case were found bearing the marks C/1 and C/2 whereas, the fired Shaktiman Case cartridge was found bearing mark C/3. It is indeed a mystery as to how these marks came to be affixed on the cartridges when the same had been sealed by the I.O. at the spot on 02.07.2010 at 01.30 pm. vide seizure memo (Ex.P/6) without putting any such marks thereupon. During the course of arguments, Shri Kharlia had drawn the Court's attention to the Maalkhana register entries exhibited as Ex.P/64A. In this Maalkhana register, the packet of the empty cartridges, is not identified as packet marked 'D'. Likewise, there is no recital in the Maalkhana register that the packets of the pistols recovered at the instance of Barket Ali and Jumme Khan bore markings packet F or G. Therefore, there is also a serious doubt in the prosecution case regarding the safe keeping of the recovered weapons and the empty cartridges found at the spot.
39. The defence examined four witnesses in support of its case. The witness Lakhe Khan (DW-2) was examined to prove the alibi of the accused Liyakat Ali.
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40. The witness Ramakant Mishra (DW-1) was posted as the Assistant Director, FSL who received the packets of weapons and the empty cartridges. The evidence of this witness is of no help whatsoever to the defence.
41. Likewise, the evidence of Dr. Vijendra Singh Shekhawat (DW-
3) being the Serum Specialist at the FSL is also of no significance and does not help the defence.
42. Dashrath Singh (DW-4) conducted a part of investigation and concluded that the offences was not found proved against the accused other than Jumme Khan, Barket Ali, Ameen Khan and Ayub Khan. Thus, the evidence of this witness is more or less formal in nature.
43. After thorough evaluation and discussion of the entire evidence on record, we are of the firm opinion that the prosecution has miserably faltered in its endeavour to bring home the charges against the accused. There is a significant and a fatal flaw in the prosecution case regarding the matter of registering the FIR. The Parcha Bayan of Munsaf Ali (Ex.P/1) which was treated to be the FIR was actually not the first information of the incident but was simply a statement under Section 161 Cr.P.C. The statement of Darey Khan (Ex.D/5) which should have been registered to be the FIR, was intentionally not registered as such. The prosecution is also guilty of concocting the evidence of Falku (PW-2) and Darey Khan (PW-3) as being eye-witnesses of the incident as we are of the firm opinion that these two persons were (Downloaded on 08/11/2019 at 11:37:23 PM) (36 of 37) [CRLA-17/2016] not even present at the spot when the incident happened and arrived much later.
44. The evidence of injured witness Munsaf Ali regarding the motive attributed to the accused is totally unconvincing and it appears that he has deliberately concealed the true genesis of the occurrence. Evidence of Munsaf Ali (PW-1), who seems to be the only eye witness to the incident, has been found lacking in the important aspect of the distances and the location from where the gunshots were fired and thus, it would be unsafe to rely upon his evidence in absence of corroboration from independent circumstances. Rather than providing corroboration, the Ballistic Experts and the Medical Experts opinions totally contradict Munsaf Ali's testimony. The investigating officer acted in a totally high handed manner and conducted investigation in an absolutely tainted and shoddy fashion which again brings the entire case under a grave cloud of suspicion.
45. In this background, we are of the firm opinion that the accused appellants deserve to be acquitted while giving them the benefit of doubt.
46. As a result of the discussion made herein above, the appeal succeeds and is hereby allowed. The impugned judgment dated 17.12.2015 passed by the learned Additional Sessions Judge, Suratgarh, District Sri Ganganagar in Sessions Case No.02/2012 (33/2010) is hereby quashed and set aside. The appellants are acquitted of the charges. They are in custody and shall be released from prison forthwith, if not wanted in any other case. (Downloaded on 08/11/2019 at 11:37:23 PM)
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47. However, keeping in view the provisions of Section 437-A Cr.P.C., each of the appellants shall furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned Trial Court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, they shall appear before the Supreme Court.
48. Since the entire prosecution case has failed mainly because of the flaw and tainted investigation, we hereby direct that a copy of this judgment alongwith paper book of the case shall be forwarded to the Police Headquarter, Jaipur so that the material can form a case study for future references.
49. Record be returned to the trial court forthwith.
(SANDEEP MEHTA),J (INDRAJIT MAHANTY),CJ
63-Tikam Daiya/-
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