IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Jagdish Vs. State of Raj. (D.B. Criminal Appeal No.951/2001) 2. Abdul Qayum & Another Vs. State of Raj. (D.B. Criminal Appeal No.952/2001) 3. Farukh Ali Vs. State of Raj. (D.B. Criminal Appeal No.950/2001) 4. Haseeb & Another Vs. State of Raj. (D.B. Criminal Appeal No.953/2001) D. B. Criminal Appeals under Sec.374(2) Cr.P.C. against the judgment dated 23-10-2001 in Sessions Case No.13/2000 (12/1997) passed by Sh. L.R.Bairwa, RHJS, Special Court (Communal Riots Cases) Tonk. Date of Judgment: July 26, 2007. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE SANGEET LODHA Mr. S.R.Bajwa, Senor Advocate with] for the appellants. Mr. V.R.Bajwa ] Mr. S.S.Sunda ] Mrs. Naina Sarraf ] Mr. M.L. Goyal, Public Prosecutor for the State. Mr. Suresh Sahni, for the complainant. BY THE COURT: (PER HON'BLE Shiv Kumar Sharma,J.) Challenge in these appeals is to the judgment dated October 23, 2001 of the learned Special Judge (Communal Riots Cases) Tonk whereby the appellants, six in number, were convicted and sentenced as under:- Appellants Abdul Qayum, Jagdish, Farukh Ali, Haseeb, Nasseb and Bundu: U/s.302/149 IPC: Each to suffer imprisonment for life and fine of Rs.500/-, in default to further suffer one month imprisonment. U/s.148 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs.300/-, in default to further suffer fifteen days imprisonment. Sentences were directed to run concurrently. 2. The prosecution story is woven like this:- On October 5, 1996 at 4.15 PM informant Mohd. Aslam (Pw.8) submitted a written report (Ex.P-19) at Police Station Sadar Purani Tonk with the averments that around 3.45 PM on the said day while the informant and his uncle Abdul Rasheed were proceeding towards their house, the six appellants belaboured Abdul Rasheed in front of Kirana shop near Khari Babdi and started inflicting blows with Swords, Guptis and Knives on the person of Abdul Rasheed as a result of which he fell down. Leaving Abdul Rasheed on the road in a pool of blood the appellants fled away. Informant and his brother Guddu (Pw.9) then saw at Abdul Rasheed and found that he was no more. Guddu started weeping and left for the house. In the meanwhile the police arrived. The police and the informant took Abdul Rasheed to the hospital. On that report case under sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, the appellants were arrested and after completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Communal Riots Cases) Tonk. Charges under sections 148 and 302 read with 149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under section 313 Cr.P.C., the appellants claimed innocence. Eleven witnesses in defence were however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard rival submissions advanced before us and carefully scanned the evidence adduced at the trial. 4. Death of deceased Abdul Rasheed was concededly homicidal in nature. As per postmortem report (Ex.P-23) following ante mortem injuries were found on the dead body:- 1. Incised wounds (Horizontal)(two in no) size is varying 1” to 2” x ½” to ¾” x bone deep covering area of 2” x 2” situated over mid part of lower 1/3rd of back (mid line & on the left side). 2. Incised wound Horizontal directing from medial to lateral 5” x 1” (medial1/2) & ½” (Lateral ½) x muscle side deep situated over mid part of back of upper neck. 3. Incised wound Horizontal directing from medial to lateral 5” x 1” x muscle side deep situated over Rt. Occipital region. 4. Incised wound ¾ x 1/8” through & through cutting upper, outer border of Rt. pinna. 5. Incised wound Horizontal directing from lateral to medial 4” x 1” to ½” Lateral to medial x bone deep situated over Rt. parietal region anteriorly. 6. Incised wound oblique directing from lateral to medial side size 10” x ½” (Lateral½) & ¼” (medial ½) x muscle to skin deep from lateral to medial situated over Lt. fronto parietal region. 7. Incised wound oblique directing from posterior to anterior side size 6” x ½” to 1” from posterior to anterior side cutting Rt. parietal bone & exposing brain matter below inj.no.5. 8. Incised wound vertical directing from below upwards size 8” x 1” (middle 2/3) & ¼ (both corners) x muscle deep situated over back of upper 2/3rd of Rt. Forearm. 9.Incised wound oblique directing from medial to lateral side size 2” x ½ to ¼ x skin deep over lower 1/3rd of Rt. Forearm anteriorly. 10. Little finger of Rt. hand has been amputated from Ist inter phalongeal joint. 11. Incised wound oblique directing from below upwards & communicating with other wound size 3” x 1½ x muscle deep over middle 1/3rd of Rt. arm (inner side) 12. Incised wound vertical directing from below upwards size 4” x 1½ x muscle deep & communicating with inj.no.11. 13. Incised wound oblique directing from medial to lateral side size is 3” x ¾ to ½ x muscle deep over front of upper 1/3rd of Rt. arm. 14. Punctured wound obliquely placed size 4” x ¾” x communicating with abdominal cavity & cutting skin sub- cutaneous tissues, muscle & peritoneum. A piece of loop of small intestine was protruding through the wound situated over Rt. upper abdomen. 15. Punctured wound vertically placed directing from upper to lower side size 3” x 1” x communicating Rt. chest cavity piercing Rt. middle lobe of lungs. 16. Punctured wound obliquely placed directing from below upwards size 4” x ¾ to ½ from below upwards x communicating with Rt. thoracic cavity piercing lower lobe of Rt. lung. 17. Punctured wound obliquely placed directing from below upward. Size 3½ x 1” x communicating with abdominal cavity and through which small intestine is protruding (a loop of it) & cutting distal end of stomach (laceration). 18. Incised wound Horizontal size 8” x 3” x muscle deep over lower ½ of Rt. arm anteriorly. 19. Incised wound (two in no.) size varying from 2” to 3” x ¾ to 1½ x bone deep (cutting bones of Lt.wrist joint and Ist and 2nd metacarpal bones of Lt. hand covering area of 3” x 2”. The cause of death in the opinion of Dr. V.K.Nigam (Pw.6), who performed autopsy on the dead body, was hemorrhagic shock due to injuries to vital organs. 5. The prosecution case is founded on the testimony of Mohd. Aslam (Pw.8), Guddu (Pw.9) and Aziz (Pw.11). All the three witnesses were thickly related to the deceased being his real nephews and brother. Mohd. Aslam (Pw.8) in his deposition stated that on the fateful day around 3.45 PM while he along with his uncle Abdul Rasheed were proceeding towards their house his brother Guddu met him on the way. He for a while stayed to by Gutkha while Abdul Rasheed went ahead. As soon as Abdul Rasheed reached near Khari Babdi he was belaboured by Hasib, Nasib, Bundu, Farukh, Jagdish and Qayum, who were armed with knives, Gupti, Churries and sword. They started inflicting injuries on the person of Abdul Rasheed. He although raised alarm yet could not dare to save his uncle. Abdul Rasheed fell down on the ground and died. The assailants then fled away. Guddu started weeping and went to the house to inform about the incident. In the meanwhile police arrived in a vehicle and took his uncle to the hospital. He also accompanied the police. Mohd. Aslam was subjected to searching cross examination wherein he stated that he had gone with his uncle to the house of one Sayeed Ahmad and stayed there about one hour. He did not know what transpired between his uncle and Sayeed Ahmad. He himself did not have a talk with Sayeed Ahmad. Guddu had come to Chhota Bajar after taking tea from Musabbir's hotel. Gutkha was purchased by him from Jain Pan Bhandar. There were ten-twelve shops near the place of incident and the police station was about half kilometer away. He admitted that on the date of examination, he was suffering sentence for committing offence under section 302 IPC. He further stated that FIR was drawn in the hospital in the presence of his family members and 100-150 Mohallawalas. 6. Testimony of Mohd. Aslam gets corroboration from the evidence of Guddu (Pw.9). In his deposition Guddu stated that he after taking tea while he was standing outside Musabbir's Hotel, he saw his brother Aslam and uncle Abdul Rasheed coming from the side of Nagron ka chowk. Aslam got halted since he wanted to buy Gutkha and uncle Abdul Rasheed proceeded ahead. Thereafter he along with Aslam also proceeded. As soon as Abdul Rasheed reached near Khari Babdi, Nasib, Hasib, Bundu, Farukh, Jagdish and Qayum indiscriminately started inflicting blows with knife, Gupti, Sword and Chhurri. After killing his uncle the assailants fled away. All the shops got closed at the time of incident. In his cross examination he however claimed that the shops were opened at the time of incident but got closed after the incident. He further stated that since his uncle was dead, he did not touch his body. He admitted that while going towards the house he did not lodge report at Police Station. He also admitted that he was undergoing sentence for the offence under section 302 IPC. 7. Aziz (Pw.11), brother of deceased, deposed that in the afternoon around quarter to four while he was going towards his house, he saw Farookh, Bundu, Nasib and Hasib running. They were coming from the side of `Joshi Mohalla' and had blood stained arms in their hands. He called them but they did not stop. In the cross examination he admitted that prior to the incident Abdul Rasheed and the accused had no quarrel but liquor contractor, where Abdul Rasheed was employee, had grudge against the accused. 8. Ganpat Singh ASI (Pw.5) in his deposition stated that around 4 PM when he reached at the spot he found a person lying dead in a pool of blood. He was taken to the hospital where Mohd. Aslam identified the body as his uncle Abdul Rasheed. In the cross examination he admitted that when he reach at the place of incident nobody was present. He did not drew the inquest report at the spot and removed the dead body in the Government vehicle. Simultaneously Aziz, Aslam, Guddu and Jamil reached to the Hospital. 9. Heera Lal IO (Pw.12) admitted in his cross examination that at the time of drawing site plan (Ex.P-16) he did not know the names of eye witnesses of the occurrence. 10. Saeed Ahmad and Mussabbir, whose names were referred by Mohd. Aslam (Pw.8) and Guddu (Pw.9), have been examined by the appellants as defence witnesses. 11. Mr. Bajwa, learned Senior Counsel canvassed that Mohd. Aslam (Pw.8) and Guddu (Pw.9) happened to be very closely related to the deceased. Since they are partisan and chance witnesses, their testimony by no standard of appreciation of evidence can be placed in the category of `wholly reliable witness'. These witnesses being interested witnesses, their testimony calls for a critical appraisal. Stronger the incident is stated to have taken place in broad day light in an open market which was agog with activity, yet no independent witness has been examined by the prosecution. Testimony of related eye witnesses suffer from numerous incongruencies and embellishments rendering the same to be highly dubious. It is further contended that alleged recoveries of weapons at the hands of appellants, first of all, have not been proved with the aid of cogent and convincing evidence and secondly the same do not connect the appellants with the impugned offence. FSL report also does not further the case of prosecution. The FIR was sent to Magistrate after inordinate delay, which reflect that the same was prepared with due deliberations and concoction. As regards to the defence evidence it is urged that the trial court rejected the same with callous indifference without due application of mind. Sayeed Ahmad was examined as Dw.1 by the appellants to show that Mohd. Aslam (Pw.8) and Abdul Rasheed (deceased) never came to meet him. It is further contended that Musabbir Hotel wala was not examined by the prosecution. Even 5 independent witnesses named as eye witnesses in the calendar of charge sheet wee left and the Public Prosecutor did not choose to examine them despite their presence in the trial court they were left by the Public Prosecutor. 12. Per contra, Mr.M.L.Goyal, learned Public Prosecutor and Mr.Suresh Sahni, learned counsel for the complainant supported the impugned judgment and contended that presence of eye witnesses at the time of incident is established and in their cross examination nothing favourable to the appellants could be extricated. It is further urged that no doubt Mohd. Aslam and Guddu are kith and kin of the deceased but they have given a truthful version of the whole occurrence. 13. Before testing the evidence for its inherent consistency and inherent probability of the story, we deem it appropriate to refer the relevant case law on the issues involved in the matter. 14. In Dani Singh Vs. State of Bihar (2004)13 SCC 203, the Apex Court propounded in para 11 thus:- “The emphasis in Section 149 IPC is on the common object and not on the common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word “object” means the purpose or design and, in order to make it “common”, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression “in prosecution of common object” as appearing in Section 149 has to be strictly construed as equivalent to “in order to attain the common object”. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.” 15. Hem Raj Vs. State of Haryana (2005)10 SCC 614, the Apex Court propounded in para 8 and 9 as under:- “8. The fact that no independent witness – though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of PW5 at a sweet stall and both of them after hearing the cries joined PW4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first IO, PW9 went to the hospital. The evidence of the first IO reveals that the place of occurrence was pointed to him by Kapur Singh. His statement was also recorded, though not immediately but later. The IO admitted that Kapur Singh was the eye witness to the occurrence. In the FIR, he is referred to as the eye witness along with PW5. Kapur Singh was present in the court on 6-10-1997. The Additional Public Prosecutor “gave up” the examination of this witness stating that it was unnecessary. The trial court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to “proliferation” of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of “proliferation” of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses Pws 4 and 5 by a known independent eyewitness could have strengthened the prosecution case, especially when the incident took place in a public place.” “9. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001)6 SCC 145]: “If already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself – whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non- examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein.” 16. In Shankar Lal Vs. State of Rajasthan (AIR 2004 SC 3559) the Hon'ble Supreme Court held as under:- (Para 5) “Even according to the prosecution the only witness to the incident in question is PW-6 therefore as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village upli for some work. From there he came back by bus at about 11 O' clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and PW-6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met PW-2 Khyali Ram and told him about the incident in question but PW-2 supposedly told him that he had already come to know of the incident from PW-14. The prosecution has not found how PW-14 came to know of the incident. IN this background if we appreciate the evidence of PW-6 we notice that he is purely a chance witness whose presence at the place of incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Kyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. On 5-4- 1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for for travelling to the Police Station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW-6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 Courts below are set aside. The appellant is acquitted of the charge framed