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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