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CASE NO.: Appeal (crl.)  382-386 of 2004

PETITIONER: Umar    Mohammad & Ors

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 12/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NOS.382-386 OF 2004 WITH CRIMINAL APPEAL NO.387 OF 2004 Jamallu son of Asheen                                           \005    Appellant Versus State of Rajasthan                                                      \005    Respondent

S.B. SINHA, J.

1.      Appellants were convicted for commission of offences under Sections  302/149, 323/149 and 148 of the Indian Penal Code, inter alia, for  committing murder of Jharmal and Juhru and also causing hurt to Mubin on  26th October, 1991 at about 1.00 a.m.   2.      The First Information Report in relation to the said incident was  lodged at about 7.00 a.m. on the same day by Kannu son of Chhote Khan  (brother of the deceased Jharmal and Jharu).  The distance between the place  of occurrence and the police station is said to be about six kilometers.  The  first informant had to walk to the police station for the purpose of lodging  the First Information Report.  3.      In the said First Information Report, it was alleged that when at about  1.00 a.m. on the previous night the deceased and injured were thrashing  bazra, they were attacked by 12 persons, namely, Mohd. Ishaq, Sahid, Abdul  Salam, Umar Mohd., Narangi, Liyakat Ali, Gernal, Jamalu, Alladdin,  Rustam, Jamil, Mewan and Bilag.           It was furthermore alleged that Sahid and Gernal were carrying 12  Bore guns, Mohd. Ishaq Abdul and the rest of the accused were having  lathis.  4.      On exhortation given by Mohd. Ishaq ordering to shoot down Jharmal  and his two brothers, Sahid and Gernal allegedly fired shots from their guns.   5.      The informant ran away from the said place and climbed on a nearby  hill.  He cried for help.  Jharmal and Mubin also cried for help.  They ran  towards a well situated nearby.  Accused killed Jharmal and Juhru by hitting  them on their heads with lathis and Tachia (a weapon like Farsa).  Mubin  was also assaulted on his head and other parts of the body.  Presuming all  the three brothers to be dead the accused ran away.  Allegedly the wooden  portion of the gun of Sahid fell down at the place of occurrence. 6.      The motive for commission of the said offence is said to be that Majid  had some dispute in respect of a house with Jharmal.   7.      It was also alleged that the accused persons took away a sum of  Rs.1950/- from the pocket of the ’kurta’, Juhru had then been putting on.   8.      The learned Sessions Judge, while holding the appellants guilty of  commission of the said offences, acquitted Majid, Umrao, Akhe Singh,  Nooru, Kehar, Risal from the charge of conspiracy to murder the deceased.   Sahid Ahmad, Daud Khan, Mohd. Ishaq, Abdul Salam, Narangi, Namalu,  Umar Mohd., Rustam, Alladin and Jamil were also acquitted of the charges  levelled against them under Sections 307 and 307/149 IPC.  The learned  Trial Judge also acquitted Liyaqat from the charges levelled against him.  

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9.      Charges were found to have been proved against Sahid Ahmad, Dau  Khan, Mohd. Ishaq, Abdul Salam, Narangi, Jamalu, Umar Mohd., Rustam,  Alladin and Jamil under Sections 148, 323/149, 302/149 IPC.  Charges  under Section 147 were also found to have been proved against Narangi,  Jamalu, Umar Mohd., Rustam, Alladin and Jamil.  They were sentenced to  undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- for  commission of the offence under Section 302/149 IPC; one month’s rigorous  imprisonment under Section 323/149 IPC as also a fine of Rs.200/-. Narangi,  Jamalu, Umar Mohd. Rustam, Alladeen and Jameel were also sentenced to  undergo one year rigorous imprisonment and to pay a fine of Rs.500/- for  commission of an offence under Section 148 IPC.   10.     On appeals having been preferred by the accused, the High Court,  while dismissing the appeals of Narangi, Jamalu, Umar Mohd. Rustam,  Alladeen and Jamil, Sahid, Mohd., Ishaq and Abdul Salam, allowed the one  preferred by Daud Khan.   11.     Mr. Brijender Chahar, learned counsel appearing on behalf of the  appellants, in support of this appeal, inter alia, would submit that all the  prosecution witnesses upon whom reliance has been placed by the learned  Sessions Judge as also the High Court, being interested witnesses, the  judgment of sentence and conviction are not sustainable.   12.     It was pointed out that the prosecution case being based on the alleged  motive in regard to land dispute by and between Majid and the deceased for  commission of the offence and the State having failed to prove the same, the  impugned judgment cannot be sustained. 13.     It was contended that the ’farsa’ and ’guns’ which were said to be the  weapons of offence having not been recovered, the prosecution story should  not be relied upon.  The theory of criminal conspiracy having been  discarded, it was urged, it would not be safe to uphold the judgment of  conviction and sentence as against the appellants.   14.     Mr. Ranbir Singh Yadav, learned counsel appearing on behalf of the  appellant, Jamallu and others, also contended that the case of Jamallu being  on the same footing as that of Daud Khan and the High Court having  acquitted Daud Khan, there is absolutely no reason as to why Jamallu would  not be similarly treated.  15.     Mr. Navin Kumar Singh, learned counsel appearing on behalf of the  respondent, however, supported the impugned judgment.   16.     The incident, as noticed hereinbefore, took place at the dead of night.   Two persons died and one was injured in the incident.  The first informant  went to Bhullu, PW-6, for getting the report written down.  He immediately  proceeded to the police station and got the FIR lodged.  Twelve persons  were named in the FIR.   17.     Bhullu, PW-6, however, at a later stage disclosed that all the accused  persons entered into a conspiracy for committing the murder.  On the basis  of the said statement, in all, eighteen persons were put to trial.  18.     The Trial Judge acquitted eight of them.  One of the accused persons,  namely, Gernal has been absconding.  One of them, Ishaq, is said to be dead.   As noticed hereinbefore, the High Court also by reason of the impugned  judgment, acquitted one other.   19.     The rest eight accused are before us.   20.     PW-1, Mubin was an injured witness.  He was mercilessly beaten.   He, although ultimately found to have suffered simple injuries, had fainted at  the place of occurrence.  Even when the first informant went to the police  station to lodge the FIR, he was lying unconscious at the place of  occurrence. Apart from Mubin, Kannu the first informant and Deena  examined themselves as PW-4 and PW-8 in support of the prosecution case.   Besides Mubin, they were also eye witnesses.   21.     Autopsy on the body of the Jharmal and Juhru was conducted by Dr.  Ram Swaroop Gupta who examined himself as PW-5.  We may, at the  outset, notice the external injuries found on the dead bodies : "JUHRU (EX.p-14):-

1.      Lacerated wound with # of scalp, over Rt.  Pareito occipital area of scalp with its  tributaries measuring 3"x1/3" x bone deep  and ="x1/4"1/6"brain tissue over the

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surface.

2.      Incised wound 3"x1/3" line deep segietal  sntume.

3.      Incised would 2"x1/3"x bone deep just in  front of and to left of injury No.2 over left  parietal area, longitudinally;

4.      Lacerated wound 3" x =" x bone deep, just  to the left on parietal to injury No.3 over left  parietal area of scalp.

5.      Incised wound 1-="x1/4" x bone deep over  middle of the sagital suture, longituadinally.

6.      Incised wound 1" x <" x bone deep,  obliquely over Rt. Parietal area of scalp near  interior hair lime."

JHADMAL (EX.P-15)

1.      Incised wound, 4"x1" x Brain deep with  cutting of bone part of brain with its  menings underneath it, over scalp of Rt.  Parietal Eminence.  A piece of bone 1"x1/2"  is cut separated.  Brain in lacerated and  exposed on surface through the defect in the  brain.

2.      Incised would 3"x2,1/2"x bone deep over  Rt. Parietal eminence.  A flap of soft tissues  is separated, 2,1/2" long, attached at its base.

3.      Incised would 5"x1/4"x bone deep over  occipital region behind and parallel to injury  No.3.

4.      Incised would 4.5"x1/4"x bone deep over  occipital region behind and parallel to injury  No.3

5.      Incised would 3"x1/3" x1/8" over upper part  of back of neck.

6.      Incised would 1,1/2"x1/3" bone deep over  Rt. Parietal Eminence.   

7.      Incised would 2"xx1/4"x bone deep over left  parietal area in front of injury No.7.

8.      Lacerated wound 4,1/4"x1/4" x Bone deep  over Rt. Side of upper part of forehead,  transversely.

9.      Irregular lacerated wound 2"x1/4"x bone  deep just left eye brown, transversely.

10.     Incised wound, slanting downwards, 3, 1/2",  =" x bone deep over face transversely from  left ear to angle of lt. eye Left maxilla is  fractured.

11.     Incised wound 1" x <" whole thickness of

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lt. angle of mouth.

12.     Lacerated wound 1"x1/4"x1/4" behind left  ear.

13.     Gunshot wounds, two in number, over back  of trunk, 9" apart, one just outside of angle  of Lt. Scapula, another in the midline at L 2- 3 spine level, each about 4mm x 4mm in  size with charred margins and base  involving only partial thickness of skin No.  pallet is seen or felt in either of the wounds  nor any pallet recovered on dissecting the  wounds.  Underlying tissues are healthy.

14.     Incised wound 1" x1/4"x1/4" over back of  upper third of 1t. thigh.

15.     Incised wound 1"x1/4"x1/4" over back of  upper third of left 1" below injury No.14.

16.     Incised wound 1"x1/4"x1/4" over back of  middle third of left thigh.

17.     Bruise 4"x1" over front of upper third of left  arm."

22.     Mubin (PW.1) also sustained injuries which as per injury report  (Ex.P-13) are as under :-

"1.     Bruise with abrasion 3"x 1" over Lt. Side of  front of chest over 6th 7th ribs near costal  margin.

2.      Abrasion 1,1/2"x1/3" over back of middle  third of Lt. Forearn.

3.      Bruise <" x <" over ulnar aspect of wrist.

4.      Brise 1,1/2"x1’ over Lt. Leg daist above  lateral melleolus.

5.      Bruse 4"x3/4" longitudinalty over Rt.  Shoulder.

6.      Bruse 3" x3/4" antero posteriorly over Rt.  Shoulder across injury No.5

7.      Bruise 7"x3/4" over upper part of Rt.  Scapula region and back of Rt. Shoulder.

8.      Bruise 3"x3/4" over it Rt. Scapula area  below and parallel to inj. No.7.

9.      Bruise 9" x3/4" longitudinally over Lt. Side  of back of chest just to Rt. of Mid. Line.

10.     Bruise 4-1/2" x >" over lower ribs on Lt.  Side of back of chest.

11.     Bruise 1-1/2" x 1,1/4" just below and medial  to inj. No.11.

12.     Bruise 4"x3/4" transversely across lower  most ribs over Rt. Blank.

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13.     Lacerated wound 2 \026 = cm x = cm x = cm  over middle of scalp. A lineat scare 5 cm x < cm transversely  over antero lateral aspect of middle third of  Rt forearm."

23.     The injury report marked as Ex.P-13 in relation to Mubin (PW-1)  revealed that he suffered as many as thirteen injuries.  Injury No.13 was a  lacerated wound, being 2.5 cm x = cm over middle of scalp.  A linear; scare  5 cm x < cm transversely over antero lateral aspect of middle third of Rt.  forearm.   24.     We have referred to the injuries inflicted on the two deceased persons,  as also injured Mubin, in details, only with a view to show that having  regard to number of injuries inflicted on them, it may safely be assumed that  a large number of persons took part therein.   25.     Two gun shot injuries were suffered by Jharmal.  Both the deceased  had also suffered incised and lacerated wounds.   26.     Both the courts below have arrived at a concurrent finding of fact that  there was sufficient light for identification of the accused.  The gun shot  injuries suffered by Jharmal also establish that shot was fired from a close  distance.  Juhru also suffered a lacerated wound as also an incised wound in  the pareito occipital area of scalp.   27.     FIR was lodged within a short time.  It appears from the trend of  cross-examination that apart from the alleged land dispute with Majid, a  dispute existed between the parties in regard to one woman, Rehmati by  name.  According to the prosecution, Rehmati the wife of Fulel, who was  involved in a murder case, started living with the brother of PW-1. Appellant  themselves suggested in cross-examination of the prosecution witnesses that  there had been dispute between the family of Fulel and the family of the  accused persons qua Rehmati.   28.     It will bear repetition to state that PW-1 was an injured witness.  He  narrated the whole incident and described the manner in which it took place  in some details.  He was assaulted by lathis.  He, although became  unconscious, had sufficient time to notice the assaults caused by some of the  appellants on Jharmal and Juhru. He had also disclosed the motive for  commission of the said offence by the appellants.   29.     PW-4 Kannu was the first informant.  He, of course, in his statement  before the police as also before the Court implicated a few persons who had  not been named in the FIR but the same by itself cannot be a ground to  discredit his testimony in its entirety.  In his evidence, he gave in details the  manner in which death was caused to Jharmal and Juhru and injuries to  Mubin. PW-8 was Deena.  According to this witness, he, at the time of  occurrence, did not see Liyakat and Jamallu.  We have noticed hereinbefore  that the High Court had acquitted Liyakat.  We may furthermore place on  record that the counsel for the appellants other than Liyakat and Jamallu,  brought to the notice of the said witnesses the statements made by him under  Section 161 of the Code of Criminal Procedure where he had named Liyakat  and Jamallu.  An objection was taken thereto by the counsels for Liyakat and  Jamallu but the same was over-ruled.  It has been pointed out before us that  according to the said witness exhortation was given by Md. Ishad that  Jharmal should not be left alive, whereas according to PW-1, exhortation  was directed against both Jharmal and Juhru.  We do not think that the said  contradiction is of such a nature that would discredit either his testimony or  that of PW-1.  The evidences of the three eye witnesses, namely, PW-1, PW- 4 and PW-8 are almost identical.  Some minor contradictions like the one  which has been noticed by us heretobefore had been pointed out but the said  contradictions, in our opinion, are not such which would discredit their  testimonies in their entirety.   30.     Indisputably, immediately after the lodging of the FIR, the  Investigating Officer came to the village. They went near the farm where the  incident took place.  Inquest report was also prepared without any loss of  time.  Even at that time, Mubin was unconscious.  Inquest reports Exb. P-6  and P-7 were witnessed, inter alia, by PW-2 and PW-3.  Presence of Kannu,

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the informant, has also been testified by the said witnesses.  31.     Oral testimonies of the said eye witnesses get corroborated by the  medical evidence.  Homicidal nature of death of Jharmal and Juhru and  injuries suffered by Mubin are not in dispute.  No discrepancy between the  ocular evidence and medical evidence has also been brought to our notice.  It  may further be placed on record that although the evidence of PW-6 Gulu  had not been relied upon by the learned Trial Judge in regard to his  statement of hatching of a conspiracy by all the accused persons to commit  the said offence as the same had not been disclosed in the FIR, there is no  reason for us to disbelieve his statement to the effect that he has scribed the  FIR at about 5.00 a.m. on 26.10.1996 and that at the request of PW-4 he  wrote down the same.   32.     Our attention has been drawn to the fact that Kannu did not disclose in  the FIR that PW-1 was lying unconscious.  It is now well settled that FIR  need not be encyclopedic.  It was a fact.  It was found to be correct.  33.     The defence had examined six witnesses. DW-1 Hussaina, DW-2  Ihsav, DW-3 Kallu, DW-4 Hafiz Mohd., and  DW-5 Alladin, in their  depositions alleged that some unknown persons had committed murder of  Jharmal and Juhru and caused injuries on the person of Mubin.  DW-6, who  was a part of the investigating team, alleged that during his investigation it  was found that Mohd. Ishaq, Daud and Salam did not commit the offence.   Both the courts had categorically held that the testimonies of DW-1 to DW-  5 were not reliable. They were not examined by the police.  Their statements  had not been recorded under Section 161 Code of Criminal Procedure.  They  never volunteered to give their statement.  No suggestion has been thrown to  the prosecution witnesses that they were present at the time of occurrence or  they had the occasion to acquire any authentic knowledge in regard to the  incident.  So far as the statement of DW-6 is concerned, it was based on his  opinion.   Ishaq has died.  Daud has already been acquitted by the High  Court.   34.     We also do not find any force in the submission of the learned counsel  that the weapons of offences were not recovered.  In any event, non- recovery of incriminating material from the accused cannot be a ground to  exonerate them of the charges when the eye-witnesses examined by the  prosecution are found to be trustworthy.   35.     In Krishna Mochi & Ors. v. State of Bihar [(2002) 6 SCC 81], this  Court held : "It has been then submitted on behalf of the  appellants that nothing incriminating could be  recovered from them, which goes to show that they  had no complicity with the crime.  In my view,  recovery of no incriminating material from the  accused cannot alone be taken as a ground to  exonerate them from the charges, more so when  their participation in the crime is unfolded in  ocular account of the occurrence given by the  witnesses, whose evidence has been found by me  to be unimpeachable."

36.     Furthermore, as all the appellants before us were named in the FIR, it  was also not necessary to hold a test identification parade.   37.     We are, however, of the opinion that in view of the fact that Daud had  been given the benefit of doubt, as Jummal stands on the same footing, he is  also entitled to similar benefit and should, thus, be accorded benefit of  doubt.   38.     Before parting, however, we may notice that a contention has been  raised by the learned counsel for the appellant that PW-1 who was examined  in Court on 5.7.1994 purported to have filed an application of 1.5.1995  stating that five accused persons named therein were innocent.  An  application filed by him purported to be under Section 311 of the Code of  Criminal Procedure was rejected by the learned Trial Judge by order dated  13.5.1995. A revision petition was filed thereagainst and the High Court also  rejected the said contention.  It is not a case where stricto sensu the  provisions of Section 311 of the Code of Criminal Procedure could have  been invoked.  The very fact that such an application was got filed by PW-1

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nine months after his deposition is itself pointer to the fact that he had been  won over.  It is absurd to contend that he, after a period of four years and  that too after his examination-in-chief and cross-examination was complete,  would file an application on his own will and volition.  The said application  was, therefore, rightly dismissed. 39.     We, therefore, dismiss Criminal appeal Nos.382-386 of 2004 [Umar  Mohammad & Ors. v. State of Rajasthan] and allow Criminal Appeal  No.387 of 2004 [Jamallu son of Asheen v. State of Rajasthan].  If Jamallu is  in custody, he shall be released forthwith unless wanted in connection with  any other case.