Rajasthan High Court - Jaipur
Shakoor vs State on 22 September, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. D.B. CRIMINAL APPEAL NO.325/2003 Shakoor Vs. State 2. D.B. CRIMINAL APPEAL NO.467/2000 Zakir & Anr. vs. State Date of order : 22/9/2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE S.S. KOTHARI Shri S.R. Surana, Sr. Advocate with Shri K.K. Chhawal) Shri Kapil Gupta & Shri Vipin Srivastava ) for the appellants. Shri Amit Punia, PP for State. ******
(Per Hon'ble Mohammad Rafiq, J.) REPORTABLE These two appeals are directed against the judgement of the learned Additional Sessions Judge, Kota whereby accused-appellants Shakoor and Rafiq Manjar were convicted, for offence under Section 302 of IPC and sentenced to life imprisonment, u/s.307/34 of IPC and were sentenced to rigorous imprisonment of five years with a fine of Rs.1,000/- each count, in default of payment of which to further undergo three months additional rigorous imprisonment and for offence u/s.324/34 of IPC, were sentenced to undergo rigorous imprisonment of one year with a fine of Rs.500/- each, in default of payment of which, they were to further undergo additional rigorous imprisonment of one month, whereas accused-appellant Jakir was convicted, for offence under Section 302 read with 34 of IPC and sentenced to life imprisonment and for Section 307 of IPC sentenced to rigorous imprisonment of seven years with a fine of Rs.2000/-, in default of payment of which, he was to further undergo additional rigorous imprisonment of six months and for offence u/s.324 of IPC and sentenced to rigorous imprisonment of one year with a fine of Rs.500/-, in default of payment of which, he was to further undergo additional rigorous imprisonment of one month. All the sentences were ordered to run concurrently.
A written report was submitted by one Indramal Jain on 19.4.1994 at 3.45 PM to SHO, Police Station Vigyan Nagar, Kota alleging therein that at about 2.30 PM on that day, accused persons Rafiq Manjar, Shakoor, Zakir, Jabbar and one man with beared came in an auto rickshaw to his grocery shop situated in front of Bharat Hospital at Sanjay Nagar, Kota. At that time, he along with his younger brother Ashok was sitting in the shop. Accused-appellants Rafiq Manjar and Zakir demanded almonds (badams), to which Ashok replied that almonds are out of stock. One of the accused persons commented that he is intentionally refusing to sell almonds, whereupon accused Zakir and Rafiq Manjar pulled out Ashok out of the shop. Indramal and Ashok raised hue and cry and on hearing the same, their father Pooran Mal came out of the house and his brother Harak Chand, Kamlesh Gautam and one Agarwalji also came there. Simultaneously, other persons Prabhu Lal Juzar, Uttam Jain, Latur and Ashok Agarwal also rushed there. While altercation was going on between the accused persons and the complainant party, the complainant Indramal caught hold of Zakir. His father Usman suddenly came there armed with a lathi and hit the complainant. The complainant however saved himself and the lathi blow was received by accused Zakir, who was released from his grip. Zakir then took out a knife and inflicted a knife blow on the body of Harak Chand, due to which he fell down. When Kamlesh intervened, accused Zakir struck another knife blow in his stomach, who also fell down. Thereafter, the other accused started beating Ashok. All the accused then fled from the place of occurrence. Injured Ashok was immediately taken to hospital where he was brought dead. Injured Kamlesh and Harak Chand were also hospitalised. On receipt of the report, a regular first information report was registered against the accused appellants for offences u/s. 147, 148, 307, 326, 324, 302 of IPC and u/s.4/25 of Arms Act. After completion of the investigation, the police filed challan against as many as nine accused for all the aforesaid offences. Accused denied the charges and claimed trial. The prosecution examined as many as 22 witnesses in support of its case and exhibited 49 documents. The defence neither produced any witness, nor document. However, the accused-appellants in their statement u/s.313 of Cr.P.C. denied the allegation and asserted that they have been falsely implicated On conclusion of the trial, the learned Additional District Judge acquitted five accused namely; Satya Narain, Suresh, Ram Kishan @ Bhuria, Cheena @ Cheenia and Usman Ali, however, convicted present accused-appellants and awarded them sentence in the manner indicated above.
We have heard Shri S.R. Surana, learned Senior Counsel for accused-appellants Zakir and Rafiq Manjar and Shri Kapil Gupta, learned counsel for accused-appellant Shakoor.
Shri S.R. Surana, learned Senior Counsel appearing for the appellants Zakir and Rafiq Manjar has argued that the learned trial court in the impugned judgement has held that neither the motive, nor intention of the accused-appellants to commit murder of deceased Ashok has been proved. Genesis of the incident has been suppressed from the Court inasmuch as it cannot be believed that dispute could have taken place on a trifle issue that when accused demanded almonds, which the deceased stated were not available, the accused persons being annoyed with him, would commit his murder. Learned Senior Counsel argued that it is not humanly possible to believe that an extreme step of committing murder of someone could be taken by the accused, just because the deceased declined to provide them almonds on sale. It was argued that the learned trial court has framed 11 questions for determination during trial, on which it has rendered the impugned judgement. On question no.l, it held that the deceased died on account of injury received on right inguinal part of his body. Question no.2 was decided holding that injury on the person of injured Kamlesh was caused by sharp edged weapon on the left side of the stomach with intention to cause his murder, whereas simple injury was caused on left thigh of injured Harak Chand. The learned trial court however on question no.3 held recoveries of weapon at the instance of accused-appellants doubtful and did not believe them. On question no.4, it held that no motive of the accused-appellants to commit murder of Ashok was proved. Not only this, the learned trial court went to the extent of holding on question no.5 that the investigation in the present matter was started even before the first information report, which is evident from the fact that panchanama was prepared prior to lodgement of the first information report. The time of 3.45 PM given in the panchanama was by overwriting made as 3.00 PM. The first information report was sent to the Magistrate with delay of 42 hours which raises a serious doubt about the fairness of investigation and proves that complainant/prosecution had made elaborate deliberations and thereafter framed FIR which is suggestive of false/over implication. On question no.7, the learned trial court held that the site plan of the place of incident Ex.P-2 was proved in evidence. However, it held that recovery of slippers from the place of incident could be read in evidence against the accused. On question no.8, the learned trial court held that intention of the accused to commit murder of the deceased was not proved. Having decided all these issues in favour of defence and against the prosecution, the learned trial court was not at all justified in convicting the accused-appellants Rafiq Manjar and Shakoor for offence u/s.302 simplicitor and accused-appellant Zakir for offence u/s.302/34 of IPC. Learned Senior Counsel also argued that incident took place at the spur of the moment and that there is only one injury, which has proved fatal and it is not sure as to which of the accused namely; Rafiq Manjar and Shakoor caused that injury on the persons of deceased, therefore, benefit of doubt should be given to all of them.
Shri S.R. Surana, learned Senior Counsel argued that testimony of prosecution witnesses did not inspire confidence. Their statements are contradictory to each other and there were lot many contradictions even in individual statements. Such witnesses were disbelieved in respect of motive, intention and recovery by the very same court, therefore, their testimony could not be relied to hold the appellants guilty for the aforesaid offences. The learned trial court thus erred in law in not holding the statement of prosecution witnesses unbelievable while deciding question no.9. In doing so, the learned trial court contradicted itself when its finding on this question is compared with those of the earlier questions. The learned Senior Counsel argued that the mere fact that the soil, shirt, underwear and pant of the deceased and knife recovered from accused-appellants were found to contain blood, cannot connect the accused with the crime because blood group thereof has not been ascertained and in absence of which, those articles cannot be connected with the crime and, therefore, the appellants cannot be held guilty of alleged offence. Finding on question no.10 as recorded by the learned trial court is this perverse and erroneous.
Shri S.R. Surana, learned Senior Counsel argued that the Investigating Officer has shown arrest of the accused Rafiq Manjar on 13.5.1994 at about 11.50 PM whereas information under Section 27 of the Evidence Act for recovery of knife is shown to have been obtained from him on 16.5.1994 at 1.00 PM. Recovery has been shown from an open place, which has been disbelieved. In any case, the incident took place on 19.4.94 and recovery was made one month thereafter. This could not have been believed and was rightly not believed. The learned trial court having disbelieved the same, erred in law in holding accused-appellant Rafiq Manjar guilty of offence. Learned Senior Counsel referred to the statement of PW-12 Dr. R.D. Verma and argued that this witness in his statement stated that injury no.2 received by deceased Ashok is fatal and was in ordinary course of nature sufficient to cause his death, but he did not clarify whether such injury could have been caused by the knife recovered at his instance, in the absence of which, accused-appellant Rafiq Manjar could not be convicted. It was argued that for injury caused to Kamlesh Gautam also, the learned trial court was not justified in convicting him for offence u/s.307/34 of IPC. Such injury could not be held to have been caused with the intention of committing his murder. It was argued that knife was also recovered from accused Shakoor vide Ex.P-25 and Zakir vide Ex.P26. Statement of PW-1 Indramal Jain, PW-7 Santosh Agarwal and PW-4 injured Kamlesh Gautam do not prove as to who was responsible for the fatal injury. In the absence of the proof as to who was author of the fatal injury, both accused-appellants Rafiq Manjar and Shakoor could not have been convicted for offence u/s.302 simplicitor while convicting accused Zakir alone for offence u/s.302 of IPC with the aid of Section 34 of IPC. This was a grave illegality committed by the learned trial court.
Shri S.R. Surana, learned Senior Counsel cited judgement of this Court in Banwari vs. State of Rajasthan-1978 RLW 340 and argued that the FIR would be always the one which is first in point of time. In the present case, PW-1 Indramal was a witness to inquest, which is shown to have been prepared at 3.00 PM on 19.4.1994, whereas the FIR, was registered at 3.45 PM. Inquest report should be treated FIR. It should have contained all the details; the manner in which the incident took place, who was responsible to cause fatal injury to the deceased and how many accused were involved in the offence. He having not given those details to the Investigating Officer at the time of preparation of inquest report, complaint had enough time to make deliberations thereafter and before lodging the FIR, which gave them lot of scope of false implication. It is argued that the FIR not only named present accused-appellants but also named Jabbar and another person having beared, who allegedly inflicted knife blows on the person of deceased Ashok.
Shri S.R. Surana, learned Senior Counsel has argued that statement of PW-3 Harak Chand was recorded by the police six days after the incident on 25.4.1994 and no reason for delay has been assigned. He does not say that he was unconscious. In this connection, learned counsel cited judgement of the Supreme Court in A. Shankar vs. State of Karnataka-(2011) 6 SCC 279. It was argued that all the witnesses are highly interested witnesses. Statement of PW-4 Kamlesh Gautam u/s.161 Cr.P.C. was recorded by police on 26.4.1994, whereas the incident is of 19.4.1994. There was no explanation why his statement was delayed. It was argued that there was false implication of accused in this case, which was proved by acquittal of five out of nine accused by the trial court. FIR was deliberately prepared with much delay so as to involve maximum number of accused. Delay of 42 hours in sending the FIR to Magistrate also proves this fact. Learned counsel in support of this argument relied on the judgment of the Supreme Court in Motilal & Anr. vs. State of Rajathan-(2009) 7 SC 454. Learned senior counsel argued that allegation of exhortation made against accused-appellants that maro salon ko cannot be by itself be taken as an intention to commit murder of the deceased. In this connection, learned Senior Counsel relied on the judgement of the Supreme Court in Idrish Bhai Daudbhai vs. State of Gujarat-(2005) 3 SCC 277. It was argued that evidence shows that when Zakir was caught hold of by PW-1 Indramal Jain, his father Usman came to save him. He inflicted lathi blow which incidentally hit Zakir himself and he was released from the clutches of Indramal Jain. The incident had thus taken place at the spur of the moment. Therefore, this would not be a case of culpable homicide amounting to murder. In support of this argument, learned counsel relied on the judgement of the Supreme Court in Mohan Singh & Anr. vs. State of M.P.-(1999) 2 SCC 428 and Matadin vs. State of Maharashtra-(1998) 7 SCC 216. In a case, where it is not sure as to which of two accused was responsible for committing fatal knife blow leading to death of the deceased and incident had taken at the spur of the moment, the accused-appellant can at the maximum convicted for the offence u/s.302 Part I or Part II. In support of this argument, learned counsel relied on the judgment of the Supreme Court in Ramesh Laxman Pardesi vs. State of Maharashtra-1987 (Suppl.) SCC page 1.
Shri S.R.Surana, learned Senior Counsel for the appellants has argued that since the State Government has not challenged the judgement of trial court on all those issues on which findings have been recorded in favour of the defence and against the prosecution, those findings nevertheless shall have to be read against the prosecution and in support of defence while deciding present appeal.
Shri Kapil Gupta, learned counsel for the accused-appellant Shakoor argued that incident took place at 2.30 PM on 19.4.1994 and a private hospital i.e. Bharat Hospital was situated just opposite the place of incident. Had deceased Ashok been immediately taken to that hospital, his life could have been saved. Learned counsel argued that PW-12 Dr. R.D. Verma has stated that if within half an hour of receiving the injury no.2, treatment was provided to the accused, he would have most certainly survived. He died due to blood loss. The incident had taken place at the spur of the moment and the accused did not repeat the injury and there was only one single knife blow that proved fatal, which was not preceded by pre-meditation. All this happened, due to sudden quarrel between the parties. This incident would thus fall under Exception-4 of Section 300 of IPC and would therefore be culpable homicide not amounting to murder. The accused at the maximum can be held guilty for committing offence u/s.304 Part-II of IPC.
Shri Kapil Gupta, learned counsel appearing for the accused-appellant Shakoor argued that FIR is hit by Section 162 of Cr.P.C. inasmuch as the investigation started much before the lodgement of FIR. PW-1 Indramal in his statement has stated that he dictated the FIR to one Kiran Singh, who accompanied him to the Police Station, but this Kiran Singh has not been produced in evidence. Peeyush Kumar, the police personnel, who prepared the inquest report Ex.P-3, has also not been produced in evidence. In the FIR, there is reference of one Jabbar with the allegation that he along with four accused was responsible for causing knife injuries on the person of the deceased, but not even challan was filed against him. Another allegation in the FIR is against one more person with beared, but he could not be identified. Usman, father of accused Zakir despite specific allegation against him, was acquitted. While Harak Chand received simple injury vide injury report Ex.P13, Kamlesh Gautam received one grievous injury which was opined to be dangerous to life vide injury report Ex.P11. Learned counsel referred to the statement of PW-1 Indramal Jain and argued that Zakir inflicted a knife blow on the right thigh of injured Harak Chand and another knife blow on the stomach of Kamlesh Gautam. Thereafter, Rafiq Manjar and Shakoor inflicted knife blows on the person of deceased Ashok. PW-2 Prabhu Lal has also made a similar statement by attributing injuries of injured Harak Chand and Kamlesh Gautam to Zakir, but did not make any allegation of causing injury on the person of deceased against him. But this witness in cross examination stated that 6-7 knife blows were inflicted by the accused on the person of deceased Ashok and he could not say as to which of the two accused inflicted first injury. Learned counsel submitted that his statement is not corroborated by postmortem report Ex.P10 according to which, only two injuries were found on the person of the deceased, one of which was fatal. PW-3 Harak Chand has made deliberate improvements by stating that all three accused-appellants inflicted knife blows on the person of the deceased Ashok. PW-4 Kamlesh Gautam has also in his statement not levelled allegation of causing knife blows on the person of the deceased Ashok by accused Zakir, but has given a different picture by stating that Mohan Langda, Usman, Zakir and Ram Kishan caught hold of the deceased Ashok. Out of these four, while other three have been acquitted, only accused-appellant Zakir has been convicted. This witness has stated that apart from the three accused-appellants, Usman, Mohan Langda, Ram Kishan Bhuria, Chinia, and Satya Narain encircled the deceased Ashok, accused-appellant Rafiq Manjar and Shakoor inflicted knife blows on his body. This shows that there, in fact, was some other dispute between them, which was completely withheld from the Court. PW-5 Pooran Mal has held only Rafiq Manjar as responsible for knife injuries on the person of the deceased Ashok. He does not even name the accused Shakoor. PW-6 Kiran Singh has stated that Rafiq Manjar and Shakoor inflicted knife blows on Ashok, but in cross examination, he stated that he is not sure as to which accused inflicted injury to whom. Statement of PW-7 Santosh Agarwal also cannot be relied because his evidence is of hearsay. He has stated that he was informed by the persons, who had assembled there that Rafiq Manjar inflicted knife injuries on the person of the deceased. PW-8 Latur Lal and PW-9 Prem Chand have been declared hostile.
Shri Kapil Gupta, learned counsel submitted that in fact FIR is anti timed and it was actually not registered till 4.30 AM. The case of over implication has been proved by judgement of the learned trial court, which has acquitted five other accused. The FIR was sent to the Magistrate with delay of 42 hours from the date of incident. Learned counsel in this connection cited judgement of the Supreme Court in Arjun Marik & Ors. vs. State of Bihar-1994 Supp (2) SCC 372 wherein it was held that delay in sending FIR to Magistrate leads to the conclusion that the FIR had been recorded much later than which is shown in the said document. Learned counsel also relied on the judgement of Supreme Court in Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra-2007 (13) SCC 501 in this respect. Learned counsel argued that in L/NK. Meharaj Singh vs. State of Uttar Pradesh-1994 Cr.L.R. (SC) 455, it was held by the Supreme Court that FIR looses its value and authenticity if it appears that the same has been ante-timed and had not been recorded till the inquest proceedings were over. Learned counsel argued that in Peeru Lal & Anr. vs. State of Rajasthan-1987 Cr.L.R. (Raj.) page 183, it was held by this Court that the inquest report is a valuable documents. In case, complete facts of the case are not given in the inquest report, it can easily be said that the prosecution agency was not definite about the factual position. It is therefore prayed that the appeals be allowed.
Per contra, Shri Amit Punia learned Public Prosecutor argued that there are total seven eye witnesses in the present case, who consistently maintained that Zakir was responsible for the injuries by a knife on the person of injured Harak Chand and Kamlesh Gautam. Knife has been recovered at his instance. Two stab wounds were found on the person of the deceased Ashok as per postmortem report Ex.P10 and two persons have been attributed stab wounds by use of knife namely; accused Rafiq Majir and Shakoor. Statements of prosecution witnesses are by and large trustworthy and inspire confidence. In any case, PW-4 Kamlesh Gautam and PW-7 Santosh Agarwal are independent witnesses. They are not relatives of the deceased. Their testimony is categorical against the accused. The testimony of these witnesses is corroborated by the medical evidence as well. Statements of PW-1 Indramal Jain and PW-5 Pooran Mal were recorded u/s.161 Cr.P.C. on the same day wherein they have named Rafiq Majir and Shakoor for causing the knife injuries on the person of deceased. Such statement of Kiran Singh, PW-6 was recorded on 23.4.1994 who too has given the same version. Regarding statement PW-4 Kamlesh and PW-3 Harak Chand u/s.161 of Cr.P.C., it was submitted by learned Public Prosecutor that their statement was delayed by seven days because both of them were operated and were hospitalized. SHO received information at 2.40 PM on phone on the day of incident and went to place of incident where he came to know that Ashok has been taken to hospital and by the time he reached the hospital, Ashok had already died. It was argued that only PW-1 Indramal had stated that there were six injuries, while all other five eye witnesses said only about 2-3 injuries, therefore, evidence of all the eye witnesses has to be commutatively read. PW-4 Kamlesh in his statement u/s.161 Cr.P.C. also named Shakoor with which he was confronted in cross examination. He made a specific allegation against him. Even when some of the witnesses have turned hostile, PW-20 Mohan Singh Tanwar and PW-21 Harmukh Singh have supported the recoveries, which have been found proved.
The injury caused to Kamlesh attributed to Zakir has been opined to be dangerous to life by the Medical Officer and therefore he was rightly convicted for offence u/s.307 of IPC. The very fact that the accused persons had come in a group and three of them were armed, proves their intention. When as many as seven eye witnesses categorically proved the allegation, the motive would not be relevant. There could be some delay in lodgment of FIR because the first priority of the complainant was to save life of the deceased and other injured. PW-4 Kamlesh Gautam has also stated that deceased Ashok and other injured including he himself were immediately taken to hospital. Similar statement was made by PW-2 Prabhu Lal, PW-3 Harak Chand and PW-6 Kiran Singh. While PW-4 Kamlesh Gautam is a friend of the deceased, PW-6 Kiran Singh and PW-7 Santosh Agarwal were also not his relatives. PW-5 Pooranmal was father of the accused. Learned Public Prosecutor cited judgement of the Supreme Court in Radha Mohan Singh @ Lal Saheb & Ors. vs. State of U.P.-(2006) 2 SCC 450 and argued that it was held in that case that details regarding manner of assault, circumstance under which assault was made or who assaulted is not required to be recorded in an inquest report prepared under Section 174 of Cr.P.C., object of which is to immediately ascertain apparent cause of death.
Learned Public Prosecutor cited judgement of the Supreme Court in Sunil Kumar & Anr. vs. State of Rajasthan-AIR 2005 SC 1096 and argued that the plea as to delay in dispatch of FIR to the Magistrate cannot be accepted if the record shows that the investigation is taken up immediately and no question was asked to the Investigating Officer as to reason of delay of sending FIR. In this case also, such question was not even put to the Investigating Officer. To the same effect is the judgment of this Court in Bhagirath Singh vs. State of Rajasthan-2000 Cr.L.R. (Raj.) 675. Learned Public Prosecutor relying on the judgement of the Supreme Court in Pala Singh & Anr.vs. State of Punjab-AIR 1972 SC 2679 argued that the Supreme Court in that case held that delay in receipt of occurrence report by Magistrate by itself does not make the investigation tainted.
We have given our anxious consideration to the rival submissions and carefully scanned the record.
It is no doubt true that the manner in which the impugned judgement has been prepared by the learned trial court leaves much to be desired. The learned trial court has indeed adopted an indigenous method of framing issues on every single aspect like in a civil suit and then proceeded to record issue wise findings in favour of or against, one or the other party. In doing so, the learned trial court has held that the recoveries of weapon of offence were doubtful, motive of the death was doubtful and even the recovery of weapon at the instance of accused was doubtful. The first information report was anti timed. The recovery of slippers from the place of occurrence cannot be read against the accused. Having held so, the learned trial court yet convicted the accused appellants Rafiq Manjar and Shakoor for the offence u/s.302 of IPC simplicitor and Zakir u/s. 302/34 of IPC. The manner in which the judgement has been framed, thus makes our task a bit more difficult but nevertheless we must observe that mere non filing of appeal by the State against those findings in view of the peculiarities attached to this case, would not debar this Court from examining the evidence that is on record of this case so as to arrive at its own independent view of the matter. Mere non-filing of appeal by the State does not preclude this Court from examining correctness of findings on those questions in exercise of its powers u/s. 374 of Cr.P.C. because this Court as the first appellate court wields the power to re-appreciate the evidence and record its findings as to correctness or otherwise of a judgement, which is impugned in appeal. This Court unbound by those findings can examine correctness of the judgement of conviction. Since in any case, two accused-appellants were convicted for offence u/s.302 of IPC simplicitor and one with the aid of Section 34 of IPC for the same offence, if the State decided not to file appeal against the evidence so recorded by the learned trial court or against the order of acquittal recorded by the learned trial court of five accused, that would not be an impediment for this Court to evaluate the evidence and come to its own finding whether or not conviction of the accused-appellant for the aforesaid offences was justified or can be sustained or otherwise. Naturally, therefore, this Court in making that exercise would be well within its powers to examine all the issues ancillary and related thereto in the realm of its power of re-appreciation of evidence as the first appellate court.
In Sheo Swarup vs. Emperor-AIR 1934 PC 227 it was held that this Court being an appellate court has full powers to review the evidence recorded by the trial court. The Supreme Court in Ramabhupala Reddy & Ors. vs. State of Andhra Pradesh-AIR 1971 SC 460 relied on the aforesaid judgement of Privy Council in Sheo Swarup, which was then further referred to in Pala Singh & Anr. vs. State of Punjab-AIR 1972 SC 2679, in which it was observed by their Lordships as under:
The court of appeal has full power under the statute to go into the entire evidence and all the relevant circumstances of the case for coming to its own conclusion about the guilt or innocence of the accused bearing in mind the initial presumption of the innocence of an accused person.
PW-1 Indramal Jain as the informant and elder brother of the deceased Ashok in his parcha bayan that was recorded at 3.45 PM has stated that accused Rafiq Manjar and Zakir came to their shop and demanded almonds from deceased Ashok, who told them that almonds are not available. Thereupon, they got infuriated alleging that Ashok is deliberately not giving them almonds. They dragged Ashok outside the shop. His father Pooran Mal and brother Harak Chand also came out of their house. Pooran Mal caught hold of Zakir. His father Usman came with a lathi from the adjoining house and tried to hit him with lathi, which Pooran Mal escaped and that was received by Zakir. He escaped from his clutches. Zakir then took out a knife and inflicted the blow on the person of Harak Chand. He fell down and when Kamlesh came to save him, Zakir inflicted another blow on his stomach and thereby Kamlesh also fell down. This part of statement of parcha bayan has been fully corroborated by eye witnesses i.e. PW-1 Indramal, PW-2 Prabhu Lal, PW-4 Kamlesh Gautam, PW-5 Pooran Mal, PW-6 Kiran Singh, PW-7 Santosh. PW-12 Dr. R.D. Verma has also in his statement Ex.P11 proved the injuries on the person of injured Kamlesh stating that he received one stab wound in the size of 1.5 x 0.5 cms x 9 cms deep over left hypochondriac region. After X-ray examination this injury was found to be grievous and dangerous to life. In the injury report of Harak Chand (Ex.P13), he has also proved the simple stab wound in the size of 1.2 x 0.5 cm x 9 cm deep on the lateral surface of left thigh, which was opined to be simple.
Then comes the statements of witnesses as to who inflicted fatal knife blow on the person of deceased Ashok. PW-1 Indramal has stated that accused-appellant Rafiq Manjar and Shakoor inflicted knife blows on Ashok. PW-2 Prabhu Lal has stated that Shakoor and Rafiq Manjar both inflicted knife blows on the person of deceased Ashok, as a result of which, he fell down and these persons fled away from the scene of the occurrence. PW-3 Harak Chand, an injured himself, has given a slightly different version by stating that accused Usman and Mohan Langra caught hold of deceased Ashok and then Rafiq Manjar, Shakoor and Zakir, all of them, inflicted knife blows, as a result of which Ashok fell down. But then, PW-4 Kamlesh Gautam, another injured has remained consistent with the first two statement, stating that Rafiq Manjar and Zakir inflicted knife blows on the person of the deceased. PW-5 Pooran Mal, father of the deceased has stated that while Rafiq Manjar, Shakoor, Suresh and Usman encircled the deceased Ashok, Rafiq Manjar inflicted knife blows on him. PW-6 Kiran Singh has then again stated that Rafiq and Shakoor inflicted knife blows on the person of deceased and then fled in an auto rickshaw. PW-7 Santosh Agarwal has stated that he reached at the site of occurrence immediately. He was informed by the people present there that Rafiq Manjar and Shakoor had given beating to Ashok. Thus, it is evident that except two witnesses namely PW-1 Indramal and PW-2 Prabhu Lal, who have stated that 6-7 injuries were caused by accused on the person of deceased, all other witnesses are attributing 2-3 injuries, to accused-appellants Rafiq Manjar and Shakoor. The postmortem report Ex.P10 is proved by PW-12 Dr. R.D. Verma, who has stated that deceased Ashok received a stab wound in the size of 1.2 x 0.5 x 1.5 cm diognally on the left lateral side of abdominal. Another injury no.2 was also a stab wound in the size of 2 x 1.0 x 9 cm deep diognally on the right inguinal part of the body. The cause of death of deceased Ashok that was opined by the Medical Officer, was result of excessive bleeding due to injury no.2.
Having noted the evidence and the nature of injuries on the person of deceased and injured, we have to now consider the argument of learned counsel for the appellants whether the discrepancy as to the time recorded in the inquest report Ex.P-3 and whether the fact that PW-1 Indramal, who is informant, despite being a witness thereto, did not give particulars about the manner of incident, nature of injuries and the persons responsible for causing such injuries, would be fatal to the prosecution case. No doubt Ex.P-3, the inquest report appears to have been originally prepared at 3.45 PM and by overwriting, it has been made as 3.00 PM. But this was precisely because the Investigating Officer did not want to show its timing before registration of FIR, as the first information report time was registered at 3.45 PM. But this has to be viewed in the light of categorical statement of prosecution witnesses, who are eye witnesses. PW-2 Prabhu Lal, PW-3 Harak Chand and PW-6 Kiran Singh. PW-2 Prabhu Lal have stated that immediately after the incident, the deceased was taken to hospital in auto rickshaw. PW-3 Harak Chand stated that Indramal brought auto rickshaw in which deceased Ashok and injured Kamlesh were immediately taken to the hospital and he was taken to hospital in scooter by Kiran Singh. PW-4 Kamlesh Gautam stated that Indramal brought auto rickshaw in which he and Ashok were immediately taken to the hospital and Premji, Uttamchand Jain and Indramal accompanied them. Harak Chand was brought to hospital by Pooran Mal and Kiran. On reaching the hospital, Ashok was declared dead. PW-5 Pooran Mal also stated that Indramal, Uttam Chand Jain and Premji took the deceased to the hospital where, he was declared dead. Harak Chand and Kamlesh were also hospitalised. PW-1 Indramal Jain and PW-6 Kiran Singh have also made similar statements. That conduct of all the witnesses was very natural because the first priority of the complainant and members of their family would be to save life of those who received knife injuries, especially of Ashok and Kamlesh, who received fatal injuries and fortunately their efforts yielded positive results in that at least life of Kamlesh could be saved, despite his having received a grievous injury which was opined by the Medical Officer to be dangerous to life and sufficient in the ordinary course of nature to cause death.
The contention that delay of 42 hours occurred in sending the FIR to the Magistrate should be a reason to discard the entire prosecution witnesses, cannot be accepted and further delay of seven days in recording statement of injured PW-4 Kamlesh and PW-3 Harak Chand cannot be fatal to prosecution case because these two witnesses were hospitalised and were available in the hospital, therefore, the police may not have recorded their statement immediately, but nevertheless the delay is not so enormous as to completely discard their testimony, which is otherwise in conformity with the version of other witnesses; especially PW-1 Indramal Jain and PW-5 Pooran Mal, whose statement u/s.161 Cr.P.C. was recorded by the police on the same day and PW-6 Kiran Singh, whose statement was recorded on 23.4.1994, with delay of only four days. These witnesses have assigned fatal injury on the person of the deceased to Rafiq Manjar and Shakoor. In the facts of the case, therefore, mere delay of 42 hours in sending the FIR to the Magistrate would not be fatal to the prosecution case. The evidence of the prosecution is otherwise strict on all other aspects. Not recording all the minute details in the inquest report cannot be fatal to the prosecution case because oral evidence in the shape of eye witness account of as many as seven witnesses, who have remain consistent except minor contradictions and stood scrutiny of the cross examination. The statement made by PW-3 Harak Chand that while two accused caught hold of the deceased, all three accused-appellants inflicted knife injury on the person of deceased would in the light of consistent evidence of all other witnesses would be consequential.
The Supreme Court in Radha Mohan Singh @ Lal Saheb, supra discussed the object of preparation of inquest report with reference to previous case laws and has held thus:
That the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witness.
The Supreme Court in holding so relied on its earlier judgement in Podda Narayana vs. State of A.P.-AIR 1975 SC 1252, wherein it was held by their Lordships that proceedings under Section 174 have a very limited purpose. Object of these proceedings is to merely ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of death. Question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details or of the overt act in the inquest report. In Shakila Khader vs. Nausher Gama-AIR 1975 SC 1324, similar view was reiterated by the Supreme Court. In Eqbal Baig vs. State of Andhra Pradesh-AIR 1987 SC 923, it was held by their Lordships that non-mention of name of an eye witness in the inquest report could not be a ground to reject his testimony. Similarly, absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names ought to have been mentioned. In Amar Singh vs. Balwindra Singh-2003 (2) SCC 518, the High Court held that since details about the occurrence were not mentioned in the inquest report which showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. It was held that High Court was clearly in error in observing as aforesaid or drawing inference against the prosecution. The judgement in Meharaj Singh vs. State of U.P.-1994 (5) SCC 188 relied on by learned counsel for the appellant was held to be not a good law. Besides, the judgement in Meharaj Singh, supra was of two judge bench, whereas the judgement of Supreme Court in Radha Mohan, supra is not only a later judgement but by a three judge bench. In that view of the matter, the judgment in Meharaj Singh, supra with great respect, cannot be accepted to be a good law and may be taken to have been overruled.
In recent judgement of Supreme Court in Brahm Swaroop & Anr. vs. State of Uttar Pradesh-(2011) 6 SCC 288, the Supreme Court considered a similar argument in which case the inquest report was prepared on a proforma. The columns relating to crime number, names of accused, time of incident and time of dispatch of special report were not mentioned. The defence raised an argument that the FIR was ante-timed and there was manipulation in the case of prosecution. While repealing the argument, it was held by Supreme Court that omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicide, accidental or by some machinery, etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eye witnesses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. In that case, a similar argument was made even in regard to overwriting. The Supreme Court rejected that argument by holding that if the author of the inquest report had not been diligent, did not mean that reliable and clinching evidence adduced by the eye witnesses should be discarded by the Court. As regards argument of delay of five days in sending special report to the Ilaka Magistrate, was also raised in that case, the Supreme Court rejected the argument in the terms that defence did not put any question in this regard to Investigating Officer and if the prosecution was not asked to explain the delay so caused, the argument cannot be accepted.
Argument that the testimony of the prosecution witnesses have been disbelieved in respect of some of the accused, who have been acquitted, therefore they cannot be relied for conviction of the accused-appellants herein, is liable to be rejected outrightly because evidence against those other accused was not such as to merit their conviction. The learned trial court to that extent was well within its rights in not convicting them. What has been held proved against the accused-appellants indeed finds support from the testimony of as many as seven eye witnesses, which we have discussed earlier.
Now coming to the argument of learned counsel for the accused-appellants that the incident had taken place on a trifle dispute about the non-availability of almonds as has been told by the deceased Ashok to the accused-appellants, who having been infuriated thereby, caused the fatal injury to him by knife blow. Thus the incident according to learned counsel for the appellants had taken place at the spur of the moment and that there is only one injury, which has proved fatal and it is not certain as to which of the accused namely; Rafiq Manjar or Shakoor, caused that injury, therefore, benefit of doubt should be given to all of them, particularly when recoveries have been disbelieved.
We are not inclined to accept this argument because all the witnesses have stated that both accused-appellants Rafiq Manjar and Zakir inflicted knife blows on the person of the deceased and there are two stab wounds on the person of the deceased. Even if it is not proved by evidence that which of them caused which injury or was responsible for causing fatal injury, the manner in which the incident in the present case took place namely the initiation of quarrel by accused Zakir, who has been found responsible for causing two sharp edged injuries firstly; on Harak Chand and thereafter on Kamlesh, which was found to be grievous in nature and dangerous to life and sufficient in ordinary course of nature to cause death and soon thereafter the accused-appellants Rafiq Manjar and Shakoor inflicted two knife injuries on the person of deceased clearly show that all these three persons came armed with knifes. Despite the motbir witnesses having turned hostile, recovery of knife can yet be believed because PW-20 Mohan Singh Tanwar and PW-21 Harmukh Singh, who have prepared recovery memos, have supported the prosecution case. The learned trial court in our view was not justified in mechanically disbelieving the recovery.
As regards intention of the accused-appellants, since all the accused came with knifes and each one of them used their knife, it must be held that they came there with a common intention. Even if, it is not held that they did no have premeditation, in the facts of the case, common intention can be held to have been developed at the place of occurrence itself. Each of them by acting in furtherance of their common intention, therefore must be liable to the offence. In the present case, a question may arise as to when and at what stage, these three accused shared common intention and acted in furtherance of common intention because how would they have meeting of minds so as to arrive would depend on facts with common intention. Reference for this question may be made to the judgment of Supreme Court in Abdul Sayeed Vs. State of Madhya Pradesh : (2010) 10 SCC 259. It was held therein that the phrase common intention implies a prearranged plan and acting in concert pursuant to the plan. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto. Common intention under Section 34 IPC is to be understood in a different sense from the same intention. In para 51 of the judgement, the Supreme Court in categorical terms held that undoubtedly, the ingredients of Section 34 i.e. the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. Law on this aspect is thus clear that Section 34 IPC can be attracted even where some of the accused have been acquitted provided that against rest of the accused it can be proved either by direct evidence or by inference that they all acted in furtherance of the common intention. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto. In Hariom Vs. State of U.P. : 1993 Supp. (2) SCC 1 [1993(1) Crimes 294 (SC)] it was held by the Supreme Court that in order to bring a case under Section 34, it is not necessary that there must be a prior conspiracy or pre-meditation and common intention can also be formed suddenly. In Virendra Singh Vs. State of Madhya Pradesh : (2010) 8 SCC 407, Supreme Court held that a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such crime is committed. In most of the cases, it is difficult to procure direct evidence of such intention and can be inferred from acts or conduct of accused and other relevant circumstances for which documents on record acquire a great significance and they have to be very carefully scrutinised by the court.
Even if case of the prosecution is not clear about the fact that which of the two accused namely; Rafiq Manjar or Shakoor inflicted knife injury on the person of the deceased, nevertheless, evidence at least to this effect is clear that it were these two accused who inflicted knife blows and that the incident of mar peet was started by accused Zakir, thus all of the three were having common intention of the offence in question. So far as the injury received by PW-4 Kamlesh is concerned, accused appellant Zakir has been convicted u/s.307 and 324 IPC simplicitor, the remaining two accused namely Rafiq Manjar and Shakoor have been convicted for offence u/s.307/34 and 323/34 of IPC, but in our view, the learned trial court was not right in convicting two accused appellants namely Rafiq Manjar and Shakoor for offence u/s.302 simplicitor while convicting accused-appellant Zakir for offence u/s.302 read with 34 of IPC. If all of them shared common intention, they all are equally responsible for the offence committed by each one of them.
Adverting now to the question whether or not the offence committed by accused in causing death of Ashok amounts to culpable homicide amounting to murder, evidence in this connection is clear that the occurrence had taken place suddenly on the dispute of purchase of almonds by the accused. This case would therefore fall in Exception-4 of Section 300 of I.P.C., according to which culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. We hold so because only one injury i.e. injury no.2 has been found to be fatal and no other fatal injury has been repeated by accused and that evidence clearly show that that injury was caused by accused in a sudden fight in heat of passion upon a sudden quarrel and that accused by not repeating such fatal injury, have not acted in cruel or unusual manner. PW-12 Dr. R.D. Verma has also stated that deceased died due to excessive bleeding and if timely treatment was provided to the deceased Ashok, he could be saved. The evidence has come on record that a private hospital was situated just opposite the place of incident, yet the deceased with such a serious injury was taken to the Government Hospital, Jaipur which was situated at a distinct place. For all all these reasons, we are inclined to hold that the offence is culpable homicide not amounting to murder falling within Exception-4 of Section 300 of IPC. However, the kind of injury that has been caused to the deceased has the attributes and the accused had requisite intention of causing death or of causing such fatal injury as was likely to cause death bringing the offence within the purview of Part-I of Section 304. All of them thus are liable to be convicted for offence u/s.304 Part-I of IPC read with Section 34 of IPC.
In the result, these appeals are allowed in part. The conviction of the accused-appellants Rafiq Manjar and Shakoor u/s.302 IPC simplicitor and that of Zakir u/s.302 read with 34 of IPC is set aside and similarly conviction of accused-appellant Zakir u/s.307 and 324 of IPC simplicitor is set aside. They are all instead convicted for offence u/s.304 Part-I read with Section 34, u/s.307 read with 34 of IPC and 324 read with 34 of IPC. The accused-appellants are sentenced to rigorous imprisonment of 10 years for the offence u/s.304 Part-I read with 34 of IPC each. They are further sentenced for offence u/s.307/34 to the rigorous imprisonment of seven years with a fine of Rs.1,000/- each and in default in payment of fine further rigorous imprisonment of three months each. They are also sentenced for offence u/s.324/34 of IPC to rigorous imprisonment of one year with a fine of Rs.500/- and in default of payment of fine, to further undergo additional rigorous imprisonment of one month. All the sentences are ordered to run concurrently.
Accused-appellants Zakir and Rafiq Manjar, whose sentence was suspended vide order dated 09.01.2001 and 13.02.2001 by coordinate bench of this Court in D.B. Criminal Misc. Bail (Suspension of Sentence) Application Nos.878/2000 and 44/2001 respectively, are directed to surrender themselves before the trial court within a month to serve the remaining sentence. In case, they fail to surrender themselves before the trial court, then the trial court shall ensure their arrest and that they serve out the remaining sentence of imprisonment.
RS/ (S.S. KOTHARI),J. (MOHAMMAD RAFIQ), J