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CASE NO.: Appeal (crl.)  771 of 1998

PETITIONER: Abdul Wahid

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 13/04/2004

BENCH: N Santosh Hegde & B P Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       The appellant herein and his father were charged of an  offence punishable under Section 302 read with Section 34 IPC  before the District and Sessions Judge, Jodhpur on an allegation of  having committed the murder of Devendra Raj Singhvi who was a  tenant in the building owned by the appellant’s father. During the  pendency of the trial, the father of the appellant Hazi Mukhtiyar  Ali died, hence, the trial as against him abated. The learned  Sessions Judge after trial found the appellant guilty of the offence  as charged and convicted him under Section 302 read with Section  34 IPC. An appeal filed by the appellant before the High Court of  Judicature for Rajasthan at Jodhpur having failed, the appellant is  now before us in this appeal.  The facts necessary for the disposal of this case are as  follows :         The deceased accused Hazi Mukhtiyar Ali was the owner of  a building named ’Hazi Building’ situated at Chopasni Road,  Jodhpur. The deceased and his brother Anil Kumar (PW-1) had  taken one of the shops in the said building for running their  business. It is the prosecution case that the deceased and his  brother had undertaken certain repairs of the shop without the  consent of the landlord because of which there was some dispute  between the deceased and his brother on one side and the appellant  and his father on the other. It is stated that on 23.8.1991 some  repairs were being done on the roof of the said shop by the  deceased and at about 4.45 p.m. when the work had been  completed the deceased and PW-1 heard some sound of throwing  away of iron trays because of which both of them went to the roof  of the shop and found the appellant and his father quarreling with  the labourers. It is the case of the prosecution that with the  intervention of the deceased and PW-1, the accused and his father  came down with the deceased and his brother and went to their  respective shops. Shortly thereafter, it is alleged that the appellant  came to the shop of the deceased asking the deceased and PW-1 to  come to his father’s shop since his father wanted to talk to them.  Therefore, the deceased and PW-1 went from their shop to the  shop of the accused in the company of Mahesh Baheti (PW-5) and  Dalpat Raj Bhansali (PW-6). At that time it is stated that the father  of the appellant was standing inside the shop holding a gun and the  appellant said to him that these persons are instigating other  tenants not to pay the rent. On hearing the same, it is stated that the  said Hazi Mukhtiyar Ali fired a shot aimed at Devendra Raj  Singhvi which caused an injury below the neck in the front,  consequent to which the deceased fell down and died on the spot. There is some controversy in regard to the starting of the

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investigation in this case. According to the material available on  record, PW-15 Hari Singh who was then the Officer-in-Charge of  the Sardarpur Police Station received information on 23.8.1991 at  about 5 p.m. that there has been a firing at Hazi Motors so after  recording the report in the Roznamcha of the Police Station, he  along with his staff proceeded to the spot. He found the dead body  of Devendra Raj Singhvi on the doorsteps of the shop of the  accused and made inquiries from the people present there as to  how did the incident in question happen and he arrested the  appellant and Haji Mukhtiar Ali under section 41(1) of the Cr.P.C.  after recording a Fard Ex. P-8. He says that he seized the gun used  in the crime after getting the same unloaded from Haji Mukhtiar  Ali. He then sent the accused persons to the Police Station. It is at  this stage this witness states that PW-14 Chain Singh, then the  Inspector-in-charge of Partap Nagar Police Station arrived with his  staff. There is no dispute that PW-14 arrived at the spot after PW- 15 had come to the spot and had arrested the accused. The defence  tried to plead that the investigation had started by recording of the  report in the Roznamcha of the Sardarpur Police Station  consequent to which PW-15 had arrived at the spot and begun the  investigation, all that was done by PW-14 will have to be treated as  investigation and statements recorded after the complaint was  registered at the Police Station. The courts below have rejected this  contention. Though in this Court also, learned counsel for the  appellant had taken the same contention, we think it not necessary  to go into that question but we are recording these facts for some  other reason because according to us, the investigation conducted  in this case reveals certain disturbing facts. PW-15 who recorded  the Fard Ex. P-8 in his evidence specifically states that in the said  Fard, no mention of the appellant’s complicity in the murder was  recorded because there was no need for that. The absence of the  recording of this fact in the Fard Ex. P-8 by itself would not be of  much consequence. But what follows thereafter is of some  importance.

According to PW-14 when he arrived at the spot of incident,  PW-15 and his staff were already there and after noticing the dead  body and getting some information from the people present there,  he came to know that PW-1 the brother of the deceased was in his  own shop nearby, therefore, he proceeded to the said shop. By the  time PW-14 reached the said shop, PW-1 had written down a  complaint narrating the incident that had taken place. That  complaint which was subsequently marked as Ex. P-1 was given to  PW-14. Based on that, a case was registered. When the said  complaint was given to PW-14 by PW-1 it contained only one part  giving details of the incident and at the end of the report the  signature of PW-1 is found. But before this report was sent to the  Police Station, PW-14 asked some questions, answers to which  were recorded in the latter part of the said complaint Ex. P-1. This  is where we notice that the investigating agency has played a role  in roping in the appellant herein in the crime. In the first part of the  complaint PW-1 after narrating the incident in detail, stated "As  soon as we reached near the shop Abdul Wahid said to his father  that they instigate all tenants; and do not let anyone to pay the rent.  Upon this Haji Mukhtiar at once shot at my brother \005 " A reading  of this complaint does not show that the appellant had instigated   or exhorted his father to shoot. This is the first document which  came into existence after the incident. The author of this document  was none other than the brother of the deceased who was in the  company of the deceased and had witnessed the incident. If really  the appellant had a role to play in the murder of the deceased, PW- 1 would not have forgotten to narrate the part played by the  appellant in exhorting his father to kill.  

As noted above, after Ex. P-1 was given to PW-14, a second

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part was added to the same which is also dated 23.8.1991 at 5.15  p.m. at Chopasni Road. That part reads that that report was  submitted at the place of occurrence by Mr. Anil Kumar Singhvi  and on oral inquiry, he disclosed that the gun was single barrel and  that when he and his brother reached at the shop of Haji Mukhtiar,  appellant Abdul Wahid said : "father shoot them". "At that time  Haji Mukhtiar shot the gun. \005" Herein we notice that a very  important improvement is brought about at the instance of PW-14  by showing an exhortation by the appellant which is not found in  the first part of the complaint. We see that this was done at the  instance of PW-14 because PW-1 in his evidence when questioned  about the same, stated : "\005 I gave the report Ext. P-1 written by  me which is in my hand and bears my signature from A to B.  Chain Singh enquired from me as to what had happened when I  told him about the above-mentioned incident. He made some notes  on the Report Ext. P-1 which is from C to D and took my signature  from E to F." This clearly shows that PW-14 got the latter part of  the complaint recorded because in the main body of the complaint  there was no overt act or role attributed to the appellant. This  inclusion coupled with the omission of noting any overt act on the  part of the appellant in the Fard Ex. P-8 recorded by PW-15 clearly  indicates that at that point of time, till the said addition was made  to Ex. P-1, there was no allegation of overt act on the part of the  appellant.  

It is in the above background we will have to consider the  oral evidence led by the prosecution to prove the charge under  section 34 IPC as against the appellant. PW-1 in his evidence  stated : "\005 When we went at the shop of the accused persons and  the accused Abdul Wahid said to his father that "Pitaji" these are  the persons who instigate the tenants and do not allow anybody to  pay the rent, shoot them." PW-5 who accompanied the deceased  and PW-1 to the shop of the accused in his evidence stated : "xxx  Abdul Wahid entered his shop and said to his father Mukhtiar Ali  that Pitaji these two instigate our tenants, shoot them. In the cross- examination, he clarifies this statement in the following words :  "Abdul Wahid said to his father to fire the gun; only this word he  used "shoot these two", name of Devendra, Anil or anyone else  had not been mentioned." PW-6 another eye witness in his  evidence stated thus : "As soon as Abdul Wahid reached he went  inside and said to his father \026 these instigate the shopkeepers,  allow none to pay the rents, shoot them. Saying this having gone  inside the shop he stood near the counter. Haji Mukhtiar Ali was  standing inside the shop holding gun." In his cross-examination, he  states that "Abdul Wahid stood and beckoned with his eye and  after the beckon, Haji fired the shot." PW-7 another witness who  spoke about this part of the incident in his evidence stated : "Abdul  Wahid while entering his shop said, "Pitaji shoot them, they  instigate the tenants, do not let them pay the rent." But in his cross- examination, he stated : "Abdul Wahid had said naming  Devendraraj, "Shoot Devendraraj". Abdul Wahid had not taken  name of Anil for shooting him." We find a considerable  discrepancy in the above statements of PWs.1, 5, 6 and 7 in the  language used by the appellant to exhort and the manner and the  place where the said exhortation was given. Learned counsel for  the appellant pointed out that the use of the word "Pitaji" by the  appellant itself indicates that these witnesses have been tutored to  make this statement because it is not the language of a Muslim to  address his father as "Pitaji". This thing could only have happened  when a witness is wrongly tutored by somebody. We find some  force in this contention.  

The two courts below did not take note of the fact that the  original complaint as well as the Fard Ex. P-8 did not contain any  allegation of any overt act by the appellant and the same was

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included for the first time by way of an addition to Ex. P-1 at the  instance of PW-14.  

The courts below, however, did take note of the  discrepancies found in the statements of the witnesses as to the  exhortation or the language used in regard to the same. The trial  court, however, took a very curious view to reject these  discrepancies on the following basis : "I find that contradictions as  mentioned above have crept in the evidence of the witnesses but  such contradictions are natural when generally witnesses are not  produced in the Court after fully tutoring them or excessively  lengthy cross-examination is conducted. I do not find any such  contradiction in the evidence of the witnesses which may besaid to  be absolutely fatal to the reliability of the prosecution story." We  are not prepared to contribute to this theory of lack of proper  tutoring or excessively lengthy cross-examination as observed by  the trial court. Suffice it to say that if only the courts below had  taken note of the manner in which this overt act was attributed to  the appellant in Ex. P-1 and an omission to allege any such overt  act to the appellant in the Fard Ex. P-8, these contradictions would  have had much more serious effect on the appreciation of evidence  of the said witnesses.  

The High Court though took note of the fact that PW-1 in  the earlier part of the complaint Ex. P-1 did not attribute any overt  act to the appellant, brushed aside the same by saying that it is  possible that the fact slipped from his mind when he was writing  the FIR. It also observed, however, immediately after he handed  over the FIR, he recollected and disclosed this fact to Chain Singh  that accused Abdul Wahid had made an exhortation to his father.  We do not think the High Court has properly appreciated the  contents of Ex. P-1 nor has it taken into consideration the manner  in which this addition came to be made in Ex. P-1 about which we  have already expressed our opinion. If only the High Court had  noticed this fact then, in our opinion, it would not have brushed  aside the discrepancies found in the evidence of PWs.1 and 4 to 7  as non-fatal discrepancies.

Taking into consideration the entire facts as found on record  of this case, we are satisfied that the prosecution has failed to  establish the alleged exhortation by the appellant and the courts  below have erred in accepting the prosecution case in this regard.  

This appeal is allowed, setting aside the impugned judgment  and convictions recorded by the two courts below. The appellant is  on bail. His bail-bond shall stand discharged.