SHAHID KHAN Vs STATE OF RAJASTHAN
Bench: JAGDISH SINGH KHEHAR,C. NAGAPPAN
Case number: Crl.A. No.-001460-001460 / 2008
Diary number: 9264 / 2007
Advocates: SHALLY BHASIN Vs
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1460 of 2008
Shahid Khan … Appellant
versus
State of Rajasthan … Respondent
With
CRIMINAL APPEAL NO.1461 of 2008 AND
CRIMINAL APPEAL NO.1462 of 2008
J U D G M E N T
C. NAGAPPAN, J.
1. These three appeals are preferred against the
judgment dated 20.12.2006, passed by the High Court of
Judicature for Rajasthan at Jaipur in DB Criminal Appeal
No.1001 of 2003.
2. The appellants in DB Criminal Appeal No.1001 of 2003
are accused nos.2 to 5 in the Sessions case no.31 of 2003
on the file of the Special Judge, SC/ST(POA), Jhalawar and
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they were tried with accused no.1 for alleged offences under
Sections 147, 148, 302/149 and 397 Indian Penal Code.
The Sessions Court found accused no.1 not guilty of all the
charges and found accused nos. 2 to 5 not guilty of the
charge under Section 397. At the same time Sessions
Court convicted accused nos. 2 to 5 for the offence under
Section 148 and sentenced them each to undergo Simple
imprisonment for 2 years with fine of Rs.500 and in default
to undergo further simple imprisonment for one month and
convicted them under Section 302/149 and sentenced them
each to undergo life imprisonment with fine of Rs.2000 and
in default to undergo simple imprisonment for six months.
3. Aggrieved by this conviction and sentence, accused
nos. 2 to 5 preferred appeal being DB Criminal Appeal
No.1001 of 2003, before the High Court of Rajasthan at
Jaipur Bench. During pendency of appeal, appellant/A3
Irfan Ali died and his appeal abated. The High Court by its
judgment dated 20.12.2006 dismissed the appeal preferred
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by the appellants. Challenging the same accused nos.2, 4
and 5 have preferred present appeals.
4. The prosecution case as it discerned from the records
is briefly, as follows : PW 19 Anil Kumar Jain is the brother
of deceased Ashok Kumar. On 22.1.2001 he submitted
Exh. P34 complaint at Police Station Kotwali Jhalawar
stating that Ashok Kumar was looking after the factory of
Kota stones and the contract of royalty of toll tax was
obtained by Abdul Khalid in which his brother Ashok
Kumar was also a partner. It is further stated that Khalid
was arrested for committing the murder of Kallu and Ashok
Kumar gave assistance to Khalid. Due to this reason on
22.1.2001 companions of Kallu came to the factory and
murdered Ashok Kumar. It is further stated therein that as
per the information provided by PW 20 Lal Chand the
accused were five in number and they caused injuries to
Ashok Kumar with sword and knife. PW 25 Mirza Majid
Beg came from Kota to Jhalawar to meet Ashok Kumar on
the occurrence day, and he and his driver PW 24 Mohamed
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Shakir saw the occurrence in which the accused inflicted
injuries with weapons on Ashok Kumar. Due to fear they
hid themselves in the factory. PW 19 Anil Kumar Jain took
injured Ashok Kumar in the Maruti car to hospital at
Jhalawar where he was declared dead. On the written
complaint of PW 19 Anil Kumar Jain a case under Sections
147, 148 302/149 and 448 IPC was registered and
investigation commenced. PW 17 Dr. Arvind Kumar Bohra
conducted autopsy on the body of Ashok Kumar and found
the following ante-mortem injuries:
1. Incised wound 2 ½ x ½ x bone deep horizontally mid of forehead.
2. Abrasion 3 ½ long in front and over the pinna of left ear.
3. Stab incised wound 2” X ½” X cavity deep omentum and fresh blood come out from wound vertically Rt para umbilicus region.
4. Stab incised wound 2” X ½” X cavity deep. Vertically oblique omenten and fresh blood comes out left para umbilicus part of abdomen.
5. Stab incised wound 2” X ½” X cavity deep omentum and fresh bleeding present vertically left renal region of abdomen.
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6. Stab incised wound 2” X ½” X cavity deep oblique ½” below lower costal margin left Hypocondrium of abdomen.
7. Incised wound 1” X ¼” x skin deep oblique lat. Aspect of middle of left thigh.”
He issued Exh.P21 post-mortem report by expressing
opinion that the cause of death was hemorrhagic shock as a
result of cutting of pedicle of spleen omental and mesenteric
vessels.
5. The investigation officer examined the witnesses,
arrested the accused and recovered weapons by drawing
the necessary memos and on completion of the investigation
filed the charge-sheet. The Sessions Court on framing of
charges conducted the trial in which prosecution examined
28 witnesses and marked documents and the defence
examined 2 witnesses on their side. The trial court
acquitted accused No.1 of all the charges and convicted
accused Nos. 2 to 5 as stated supra. On appeal the High
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Court confirmed the conviction and sentence. Aggrieved by
the same the present appeals have been preferred.
6. Mr. Sushil Kumar Jain, Senior Advocate appearing for
the appellants contended that PW 25 Mirza Majid Beg and
his driver PW 24 Mohamed Shakir who claimed to have
witnessed the occurrence are chance witnesses whose
presence at the place of occurrence is doubtful and their
conduct in not informing the relatives of the deceased and
not lodging police complaint is quite unnatural and their
statements were recorded after 3 days of the occurrence for
which there is no explanation and the prosecution case was
conceived and constructed after a good deal of deliberation
and it is doubtful. It is further contended by him that
PW 25 Mirza Majid Beg implicated the appellants falsely
because his son-in-law Khalid was tried for committing the
murder of Kallu and in the said case the present appellant-
Banti gave evidence against him as prosecution witness,
resulting in conviction. It is his further submission that the
courts below have erroneously believed the uncorroborated
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testimonies of the eye-witnesses and conviction and
sentence imposed on the appellants are not sustainable in
law and liable to be set aside. In support of his submission
reliance was placed on various decisions of this Court.
7. Per contra the learned counsel appearing for the
respondent contended that the presence of the eye-
witnesses at the time of occurrence is established and their
testimonies have rightly been relied upon by the courts
below for convicting the appellants and the impugned
judgment is sustainable.
8. Ashok Kumar died of homicidal violence is evident
from the medical evidence adduced in the case. PW 17
Dr. Arvind Kumar Bohra who conducted post mortem found
4 stab incised wounds in the abdomen and 2 incised
wounds on forehead and left thigh. Exh.P21 is the post-
mortem report issued by him in which he has opined that
the cause of death was hemorrhagic shock as a result of
cutting of pedicle of spleen omental and mesenteric vessels.
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From the above it is clear that Ashok Kumar died of injuries
sustained in the occurrence.
9. The prosecution case is that the appellants (Accused
Nos.2, 4 and 5) alongwith other accused inflicted injuries
with sword and knife to Ashok Kumar. During the trial PW
20 Lal Chand, PW 24 Mohammad Shakir and PW 25 Mirza
Majid Beg were examined as having witnessed the
occurrence. PW 20 Lal Chand did not support the
prosecution case and was declared hostile. PW 25 Mirza
Majid Beg in his testimony has stated that on 22.1.2001 he
started from Kota at 10 O’ clock and reached Jhalawar at
about 12 O’ clock in his Maruti Van driven by his driver PW
24 Shakir and halted for 5-10 minutes in the Toll Post and
then went to the factory of Ashok Kumar to meet him and
on reaching there they heard the sound of crying and they
got down from the vehicle and ran inside the factory and
saw accused no.2 Banti and accused no.4 Shahid Khan
with daggers in their hand and accused no.5 Mansoor with
Gupti type weapon and all the accused were attacking
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Ashok Kumar with the said weapons. According to him he
and his driver stood adjacent to the quarter wall inside the
factory and saw the occurrence and thereafter they ran
away from the said place to Toll Tax and boarded a tanker
lorry and reached the hospital at Jhalawar and they found
their Maruti vehicle parked in the hospital and they drove
from there directly to Kota in the said vehicle. It is the
testimony of PW 24 Mohamed Shakir that on 22.1.2001 he
drove the Maruti van of PW 25 Mirza Majid Beg from Kota to
Jhalawar and when they reached the factory of Ashok
Kumar they heard the sound of crying and both of them got
down and rushed inside the factory and saw the appellants
and other accused attacking Ashok Kumar with knife and
they ran to the backside of the factory and hid themselves
near the wall and after 5-10 minutes they came out and
went to the Toll Tax check post and by taking a lift in a
truck they reached Jhalawar hospital and on seeing their
car there, both of them drove back to Kota.
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10. Both the above witnesses are residents of Kota which
is at a distance of about 150 kms. from Jhalawar town.
According to PW 25 Mirza Majid Beg he went to Jhalawar to
meet Ashok Kumar and on reaching the factory at 1.00 p.m.
they happened to witness the occurrence. It is relevant to
point out that PW 9 Anwar and PW 19 Anil Kumar Jain,
who on intimation rushed to the occurrence place, did not
state that they saw PW 25 Mirza Majid Beg and PW 24
Mohamed Shakir in the occurrence place. It is only PW 19
Anil Kumar Jain with the help of PW 9 Anwar and PW 20
Lal Chand lifted injured Ashok Kumar and put in the
Maruti vehicle and took him to Jhalawar hospital, where he
was declared dead. Thereafter PW 19 Anil Kumar Jain went
to the Police Station and lodged the written complaint. In
the said complaint, the names of the assailants are not
mentioned and also the names of the persons who were
present during the occurrence are not mentioned. PW 25
Mirza Majid Beg and PW 24 Mohamed Shakir have stated in
their cross examination that they did not help PW 9 Anwar
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and PW 19 Anil Kumar Jain to shift the injured to the
hospital and they rushed towards Toll Tax and reached the
hospital in a truck and on seeing their car, without entering
the hospital, they drove to Kota and they did not inform any
one about the occurrence and they did not also go to the
Police Station for lodging the complaint. The High Court in
the impugned judgment has concluded that the presence of
PW 25 Mirza Majid Beg is established in view of the fact
that his Maruti van was used for shifting injured to the
hospital. There was nothing on record to show the Maruti
vehicle used for transporting Ashok Kumar to the hospital
belonged to PW 25 Mirza Majid Beg. In fact PW 19 Anil
Kumar Jain in his cross examination has stated that he did
not know the Registration number of the Maruti van in
which Ashok Kumar was taken to hospital and he also did
not know whose vehicle it was. In other words, nothing is
stood established by the use of this Maruti vehicle for
transporting to the injured to the hospital and in any event
this will not clinch the presence of PW 25 Mirza Majid Beg
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at the time of occurrence. PW 25 Mirza Majid Beg and PW
24 Mohamed Shakir slipping away unnoticed by the others
particularly after the alleged attack is utterly unbelievable.
It appears unreal. They are not strange to expect and they
did not render any help for shifting the injured to the
hospital nor had the courtesy to go inside the hospital to
ascertain the condition and also did not inform the
occurrence to the police. The aspect of fear is without any
foundation and is not supported by any evidence of act or
conduct. This plea does not impress us. In this context, it
is relevant to point out that PW 25 Mirza Majid Beg has
admitted that he is a history-sheeter, and two cases under
NDPS Act were imposed on him and he was also bound
down under Section 110 Cr.P.C.
11. The statements of PW 25 Mirza Majid Beg and PW 24
Mohamed Shakir were recorded after 3 days of the
occurrence. No explanation is forthcoming as to why they
are not examined for 3 days. It is also not known as to how
the police came to know that these witnesses saw the
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occurrence. The delay in recording the statements casts a
serious doubt about their being eye-witnesses to the
occurrence. It may suggest that the investigating officer
was deliberately marking time with a view to decide about
the shape to be given to the case and the eye-witnesses to
be introduced. The circumstances in this case lend such
significance to this delay. PW 25 Mirza Majid Beg and PW
24 Mohamed Shakir, in view of their unexplained silence
and delayed statement to the police, does not appear to us
to be wholly reliable witnesses. There is no corroboration
of their evidence from any other independent source either.
We find it rather unsafe to rely upon their evidence only to
uphold the conviction and sentence of the appellants. The
High Court has failed to advert to the contentions raised by
the appellants and re-appreciate the evidence thereby
resulting in miscarriage of justice. In our opinion, the case
against the appellants has not been proved beyond
reasonable doubt.
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12. Consequently, the appeals are allowed and the
conviction and sentence of the appellants is hereby set
aside. The appellants are on bail. Their bail bonds shall
stand discharged.
…...…….….……………….J. (Jagdish Singh Khehar)
…..…...……………………J. (C.Nagappan)
New Delhi; March 02, 2016