Mohammad & Ors Vs. State of Rajasthan  Insc 1270 (12 December 2007)
Sinha & Harjit Singh Bedi
APPEAL NOS.382-386 OF 2004 WITH
CRIMINAL APPEAL NO.387 OF 2004 Jamallu son of Asheen Appellant Versus State of
Rajasthan Respondent S.B. SINHA, J.
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
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.
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
exhortation given by Mohd. Ishaq ordering to shoot down Jharmal and his two
brothers, Sahid and Gernal allegedly fired shots from their guns.
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.
motive for commission of the said offence is said to be that Majid had some
dispute in respect of a house with Jharmal.
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.
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
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.
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.
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.
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.
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
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.
Mr. Navin Kumar Singh, learned counsel appearing on behalf of the respondent,
however, supported the impugned judgment.
The incident, as noticed hereinbefore, took place at the dead of night.
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.
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.
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.
noticed hereinbefore, the High Court also by reason of the impugned judgment,
acquitted one other.
The rest eight accused are before us.
PW-1, Mubin was an injured witness. He was mercilessly beaten.
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.
Mubin, they were also eye witnesses.
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):-
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 surface.
Incised wound 3"x1/3" line deep segietal sntume.
Incised would 2"x1/3"x bone deep just in front of and to left of
injury No.2 over left parietal area, longitudinally;
Lacerated wound 3" x =" x bone deep, just to the left on parietal to
injury No.3 over left parietal area of scalp.
Incised wound 1-="x1/4" x bone deep over middle of the sagital
Incised wound 1" x <" x bone deep, obliquely over Rt. Parietal
area of scalp near interior hair lime."
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.
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.
Incised would 5"x1/4"x bone deep over occipital region behind and
parallel to injury No.3.
Incised would 4.5"x1/4"x bone deep over occipital region behind and
parallel to injury No.3
Incised would 3"x1/3" x1/8" over upper part of back of neck.
Incised would 1,1/2"x1/3" bone deep over Rt. Parietal Eminence.
Incised would 2"xx1/4"x bone deep over left parietal area in front of
Lacerated wound 4,1/4"x1/4" x Bone deep over Rt. Side of upper part
of forehead, transversely.
Irregular lacerated wound 2"x1/4"x bone deep just left eye brown,
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.
Incised wound 1" x <" whole thickness of lt. angle of mouth.
Lacerated wound 1"x1/4"x1/4" behind left ear.
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
Incised wound 1" x1/4"x1/4" over back of upper third of 1t. thigh.
Incised wound 1"x1/4"x1/4" over back of upper third of left
1" below injury No.14.
Incised wound 1"x1/4"x1/4" over back of middle third of left
Bruise 4"x1" over front of upper third of left arm."
(PW.1) also sustained injuries which as per injury report (Ex.P-13) are as under
Bruise with abrasion 3"x 1" over Lt. Side of front of chest over 6th
7th ribs near costal margin.
Abrasion 1,1/2"x1/3" over back of middle third of Lt. Forearn.
Bruise <" x <" over ulnar aspect of wrist.
1,1/2"x1' over Lt. Leg daist above lateral melleolus.
4"x3/4" longitudinalty over Rt. Shoulder.
3" x3/4" antero posteriorly over Rt. Shoulder across injury No.5
Bruise 7"x3/4" over upper part of Rt. Scapula region and back of Rt.
Bruise 3"x3/4" over it Rt. Scapula area below and parallel to inj.
Bruise 9" x3/4" longitudinally over Lt. Side of back of chest just to
Rt. of Mid. Line.
Bruise 4-1/2" x >" over lower ribs on Lt. Side of back of chest.
Bruise 1-1/2" x 1,1/4" just below and medial to inj. No.11.
Bruise 4"x3/4" transversely across lower most ribs over Rt. Blank.
Lacerated wound 2 = cm x = cm x = cm over middle of scalp.
scare 5 cm x < cm transversely over antero lateral aspect of middle third of
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.
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.
Two gun shot injuries were suffered by Jharmal. Both the deceased had also
suffered incised and lacerated wounds.
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.
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.
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
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.
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, the informant, has also been
testified by the said witnesses.
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.
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.
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.
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.
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.
Krishna Mochi & Ors. v. State of Bihar [(2002) 6 SCC 81], this Court held
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
Furthermore, as all the appellants before us were named in the FIR, it was also
not necessary to hold a test identification parade.
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.
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 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,
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.