SHAHID KHAN Vs. STATE OF RAJASTHAN

Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1460 of 2008, Judgment Date: Mar 02, 2016

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 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 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 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.

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 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 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. 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 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.

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 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 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
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.

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

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