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Sunday, March 6, 2016

Non Examination of witnesses in time - delay not explained - 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.

                                                                  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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