1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 933 of 2003 AYYUB KHAN V/S STATE Date of Judgment : 15.12.2008 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. SABIR KHAN for Mr. PRADEEP SHAH, for the appellant Mr. JPS CHOUDHARY, PP, for the respondent BY THE COURT : (PER HON'BLE GUPTA,J.) By this appeal, the appellant seeks to challenge his conviction and sentences imposed by the learned Addl. Sessions Judge, (Fast Track), Bali vide judgment dated 6.8.2003, convicting him for the offence under Section 302 IPC, and sentencing to rigorous imprisonment for life, and a fine of Rs.1000/- in default to undergo one month's further rigorous imprisonment. The necessary facts are that on 17.12.2001 at about 4.15 PM, one Han Mommamad lodged a written report at Police Station Khinwada alleging that at about 1.00 in the noon, he along with Umar Khan son of Jamsher Khan, and Jamal Khan were returning from the house of his Tau, Hasan Khan at Ranki Wala Well. At that time, his sister-in-law (भभ) Smt.Rozatoon was coming from the opposite direction 2 carrying a Tagari containing cow dung, when she reached near Barloota Bala (water course), the appellant emereged from the ambush, who was having his Kunt in his hand, he started indiscriminately wielding injuries to Rozatoon. She raised a cry, and rushed as they were at some distance, but then the accused absconded. They found the victim lying on the ground with bleeding, and her head and forehead etc. were torn, the jaw was torn from nose to years and mouth. It is alleged that she was in senses and told to have been injured by the accused Ayub. According to the information, thereafter she was brought to the village, then Jamal was sent to Bagole to send a jeep, wherein she was carried to Magartalab Police Outpost, where-from they picked up two constables and were carried her to hospital at Sadri and enroute she collapsed. On this report, the appellants were arrested and after completing investigation challan was filed for the offence under Section 302 IPC in the Court of Judl. Magistrate, Desuri, where-from it was committed to the Court of Addl. Sessions Judge, Bali, who in turn transferred it to the learned trial Court. After committal, the charge under Section 302 IPC was framed to which accused denied. The prosecution examined as many as 23 witnesses and tendered in evidence number of documents. Learned trial Court after appreciating the evidence of the prosecution and hearing the accused found the accused guilty as above and convicted and sentenced him as above. Assailing the impugned judgment, it was submitted that the whole thrust of the prosecution case is on the basis of the three alleged eye-witnesses being P.W.1, Han 3 Momammad @ Hamid Khan, the informant, P.W.5 Umar Khan, and P.W.6 Jamal Khan, but then their evidence is materially contradicted by P.W.14, Hasan Khan, who is the Tau of the three witnesses, the husband of the deceased, being Fakir Mohammad, P.W.11, and from the evidence of Dr.M.M.Jangid. According to the learned counsel if those evidences are considered in proper prospective, it would be clear that the conviction is wholly unsustainable. Learned Public Prosecutor on the other hand supported the impugned judgment. We have heard either of the learned counsels, and have gone through the record. From the perusal of the judgment of the learned trial Court, it appears that the learned trial Court has placed reliance on the evidence of the three eye- witnesses, noticed above, and has proceeded to find corroboration from the site plan, and site inspection note, recovery of the blood stained Kunt (the weapon of the accused) pursuant to the information under Section 27 being Ex.19, and recovered vide recovery memo Ex.10, recovery of blood stained cloths of the accused, and finding that the cloths of the deceased, cloths of the accused and the weapon of offence have all been found by the Forensic Science Laboratory to be containing blood of human origin of A-Group. The matter was heard on 2.12.2008, which hearing continued on 3.12.2008. On 2.12.2008 we desired to see the 4 weapon of offence, however, on 3rd it was informed that the clerk concerned of Malkhana is on leave, and on 3rd it was informed that the Malkhana has not been received, and therefore, it was ordered to be called for. Today it is informed that the weapon of offence has been destroyed on 14.1.2006. It would suffice to say that the impugned judgment of the learned trial Court was passed on 6.8.2003, wherein it was specifically directed that the article to be destroyed after expiry of limitation for appeal, while the appeal was filed on 23.8.2003 itself. As such, there was no occasion for destroying the article. Then it is also required to be noticed that the weapon of offence is an iron article, which cannot be destroyed like blood stained earth or control earth, or the cloths. The D.J.,Pali is, therefore, directed to look into the matter, and find out, as to who is the person guilty for alleged destruction of the article, and to take strong disciplinary action against the delinquent and report the out come to the Court. Since the accused is in custody, and carrying the matter of production of weapon to its logical conclusion may take very long time, we think it appropriate to decide the matter on merits on the basis of the material available on record without insisting on production of the weapon. Accordingly, we have considered the material on record, and have heard the learned counsel. We may first of all straightway consider the evidence of the eye-witnesses, as if the three eye- witnesses do not inspire confidence, then the other 5 aspects considered by the learned trial Court very well go on the back foot, as in that event, the matter rests in the realm of circumstantial evidence, for which different parameters are laid down by Hon'ble the Supreme Court. P.W.1, the first informant has deposed that it is a matter of 12th of January, the three persons i.e. he, Umar and Jamal were going to their house from the field while his sister-in-law was coming from the opposite direction carrying cow dung on the head in Tagari. When she reached near Barloota Bala, the accused appeared from ambush and immediately wielded a blow with Kunt from the back side on the head of the victim, whereupon she raised a cry. They rushed, by then she fell down, thereafter the accused inflicted further 2-3 blows on the face, and looking to this, and other witnesses, he ran away. Then Jamal was sent to fetch the jeep from Bagole and he and Umar kept sitting there only, victim was carried to house on the cot and on arrival of jeep, she was taken to Magartalab Police Chowki, where-from two constables were accompanied to hospital Sadri, and enroute she collapsed. Then from a liberate person, the first report was got scribed and submitted to S.H.O., which has been proved to be Ex.1. Then he has proved site plan, Ex.3, and site inspection note, Ex.4, and has also deposed that the brother of the accused had died by poisoning, and the suspicion was on the victim, therefore, the accused has committed this incident. At this place, we may pause to notice that even according to this witness, and First Information Report, 6 Ex.1, before lodging First Information Report, these three persons along with the victim had gone to police outpost Magartalab and where-from two constables had accompanied. Obviously before accompanying some report must have been recorded and a diary Rawanagi should have been prepared, obviously that would have been the first information in the true sense of the term, and Ex.P-1, which was subsequently got scribed from a person cannot be said to be possessing attributes of real First Information Report. This is one aspect of the matter. The other aspect of the matter is that according to this witness, first blow was caused on the head from the backside by the accused, as a result of which, she raised a cry, and fell down, and then the accused inflicted 2-3 more injuries on the face, and ran away. A look at the post mortem report, Ex.P-16 does show that there is no injury on the backside of the head, or any injury on the rear side of the body, rather the victim had only three injuries, being incised wound 24x5x9 cm on the face extending from left ear upto 7 cm in the front of the right ear cutting the nose, transversely piercing the maxillary bones with clotted blood, and exposure of bones, vessels and muscles. The second injury is incised wound 9x2.5xBone deep on centre of forehead with exposure of bones, muscles and vessels and clotted blood, while the third injury is incised wound 3x.5cm. muscle deep on scalp with clotted blood. These are the only three injuries and looking to the location, size and magnitude of injury No.1, in our view, it is more than obvious that after receiving this injury, the victim cannot possibly speak. 7 With this background, we come to the cross- examination wherein he has deposed that when the FIR was scribed, Umar and Jamal were not there, the date of incident was Eid day, he has of course denied the suggestion that at the time of getting scribed the report, the two police constables and SHO was with him. Then he has deposed that Umar and Jamal are his cousins (brothers). Then he has deposed that they had went to the house of Hasan Khan's well at 12.00 in the noon to wish on the occasion Eid, where they stayed around an hour, and that the distance between well of Hasan Khan, and place of incident is less than half kilometer. Then he has maintained that he had seen the victim coming, the accused appearing from ambush and has deposed that at that time, she was facing them, the accused appeared from backside, and dealt first blow from backside with sharp edge of the weapon, the victim cried (अयब मर - अयब मर ), and when they reached near her, she was stutteringly speaking, though voice was not clear, he has also admitted that their cloths did not get blood stains. He denied the suggestion about having been told by the victim to have been assaulted by the accused, and has maintained to have himself seen the incident. He has also maintained that all they three reached the victim together. He has also deposed that at that time, Kunt was not lying on the spot, rather accused had taken it away. The accused's brother is said to have died some 3-4 years ago, for which no proceedings were initiated against the victim and it was orally talked about. He has maintained that it is wrong that in FIR, Ex.P-1 it was not mentioned that the accused 8 hit from behind. He has denied the suggestion about having not seen the incident and to have been informed by the villagers about the incident and to have gone on the spot with the villagers only and on account of animosity false case has been cooked up. Then we may straightway come to the evidence of P.W.5, the another alleged eye-witness, Umar Khan. He has deposed that he was coming from the field after visiting his Chacha on the occasion of Eid, their sister-in-law (भभ) was carrying cow dung in Tagari to field, suddenly the accused appeared from ambush and dealt a blow on her neck from behind, as a result of which she fell down. Then the three rushed to the spot and the accused noticing them took to heels. Thereupon he brought a cot from the house, whereon the victim was carried to house, then Jamal went to fetch a jeep from Bagole, wherein she was carried to Magartalab Police Chowki, therefrom two police constables were accompanied for Sadri, and enroute she collapsed, where she was put in the mortuary, and post mortem was conducted. Then at 4.30 the police came and inquest report etc. were prepared. He has also proved the site inspection note and site plan Ex.3 and 4. Thus, in examination-in- chief, this witness has not deposed about any further blows having been dealt on the victim after her having been fallen down, or on her face, rather according to him only one blow was dealt on the neck from the backside and she fell down. In cross-examination he has deposed that he asked the victim as to who has caused injuries, and she replied it to be the accused. According to him, some 5-6 villagers had also come, who did not try to apprehend the 9 accused, who already ran away, the witness also did not try to apprehend the accused, one Natha Kumhar @ Narayan has also said to have come. He has also deposed that till they reached the Police Chowki, the victim was speaking and lost speech after reaching the police Chowki. Then while reaching Sadri sometime she was gaining senses sometime loosing it. He has denied the suggestion about existence of Babul trees in between the place where they were coming and on place of the incident. However, he has maintained that all the three reached together, and that they had gone only on hearing the shrieks of the victim. Then he has categorically deposed that when he reached, the victim had fallen down, and after arrival, accused did not inflict any more injuries, as he had gone. He has also maintained that weapon of offence was not lying on the spot. He has maintained to have seen blow being caused on the head from the backside with Kunt on account of which the head was broken, and she fell down. Then he has deposed that after she had fallen down, 2-3 more injuries were inflicted and then Ayub ran away and these injuries are said to have been caused on nose, and forehead. He claims to have seen infliction of first blow from a distance of 100 ft. He has also maintained that at that time, the victim was facing them while the accused's backside was towards them. He has also maintained that in the course of putting the victim on the cot or in the jeep or moving here and there, his garments did not receive any blood stains. He has also maintained that till the victim reached the village, she spoke about three times to have been injured by the accused. Then he was confronted with his police statement Ex.D-1, wherein it was not mentioned 10 about his having brought the cot, likewise, it is also not mentioned about causing injury from the backside or on the head from the backside, then some other portions were also confronted. He has maintained that he has deposed to the police about injuries having been inflicted in his presence, but does not know, as to why they are not mentioned in the Ex.D-1. He has denied suggestion about having falsely implicated the accused due to animosity. This is the entire evidence of P.W.5 Umar Khan. Then we come to the evidence of P.W.6, the last eye-witness being Jamal Khan. He has deposed the incidence to be of 17th December 2000 and that he along with Hamid and Umar were going to the fields after meeting their uncle. It was about 1.00 in the noon that their भभ was coming from the opposite direction carrying a Tagari on the head, at which time, the accused appeared from ambush having Kunt in his hand and straightway dealt a blow on the backside of her head. Consequently, she fell down. All the three rushed, which were at a distance of 20-25 ft. However, the accused inflicted more injuries on forehead and nose and ran away. At that time, the victim was speaking and on their asking she gave out that Ayub has caused injuries. Then Umar got a cot, whereon she was carried to village, the witness went to fetch jeep to Bagole and therein she was carried to Magartalab Chowki, where two constables accompanied and carried to Sadri hospital but on the way, after Ghanerao she collapsed. Body was kept in mortuary and inquest report was prepared. In cross-examination, he has also deposed the other two witnesses to be his cousins, and has deposed that the 11 place of incident is near the village so close that cries are heard in the village, and has deposed that except these three persons, nobody was attracted on the cries of the victim. He has denied arrival of Dalpat Singh or the potter on the spot, he has admitted that at that time, he was coming from his Chacha's well, which is situated at about less than half a kilometer. Then he has deposed that at a distance of about 200 ft. he saw the victim, he also maintains that all they three reached together. He has denied the suggestion about victim was unconscious at the time they reached. However, he has maintained that by the time they reached the spot, accused had already run away and they could not chase him. He has deposed that all the three had put the victim on the cot but their cloth did not receive any blood stains, nor even at the time when she was put in the jeep. Then he was confronted with his police statement Ex.D-2 and was contradicted about absence of the statement about Umar having brought the cot and the victim having carried therein. Likewise, he was also confronted with the omissions about first blow having been caused to the victim from the backside. Then he has said that the injury was inflicted above the neck on the head a little bit forward with the sharp edged weapon, the victim cried and fell down, and that as soon as she fell and cried, they rushed and the accused ran away. Then in his own statement he deposed that after her falling down injuries were inflicted on nose and head. It was also confronted with the omission about inflicting of first injury on the nose and second on the forehead in Ex.D-2. He has denied the suggestion about their having not seen the incident and having been informed only by the 12 villagers, whereupon they may have carried her to hospital. This is the whole account of the three eye- witnesses. From the reading of these three statements, this much is clear that they are unanimous to the effect that it was a day of Eid and they had gone to wish to their uncle at his field (well) which was situated at a distance of less than a half kilometer at the place of incident and therefrom they were returning in their usual course. One of the witnesses had of course said that they went there at about 12 and stayed at about an hour, though it has not been said by the others. But then this much is clear that they had collectively gone to their uncle Hasan Khan and from that they were returning. In this background, a look at the statement of Hasan Khan P.W.14, shows that he has deposed the three having come to wish him and to have stayed there about half an hour and to have heard about the victim having been killed. Then in cross-examination he has deposed that those were days of winter, people go offer prayers of Namaz at about 11-12 in the noon at village Gandhi, which is about 8-9 kms. away and that at the well small children had come and told that Rozatoon is lying injured in the riverbed, whereupon the three rushed to the spot. Of course, he has also stated that these persons had come at about 3-4 P.M. However, in our view, this witness P.W.14 being 90 years of age, can reasonably be assumed to be not having appropriate sense of time and if read in conjection with the testimony of P.W.1, 5 and 6, the appropriate inference of blows is that after saying prayers of Eid the three persons had gone to him to wish him being uncle and there a small child had informed about the victim lying injured in the riverbed, 13 whereupon the three persons rushed on the spot. To say the least, this sequence does clearly negative the three witnesses being the eye-witnesses of the incident. A combined reading of the statements of three witnesses and the post mortem report, Ex.P-16 does clearly show that the witnesses are lying in an attempt to show themselves to be eye-witnesses by propounding a theory of injury being first inflicted from the backside of the victim whereupon she raised a cry and fell down, which cry attracted them. In Ex.16, as noticed above, there is no injury available on the backside of the person of the victim. Likewise, even in Ex.P-1 this has not been so mentioned. Obviously therefore, this story has been developed by these witnesses to make the Court believe that the victim raised a cry which attracted them and since at that time, victim was facing the witnesses, it has been deposed that accused caused injuries from the backside, so as to enable them to ask the Court to believe that they could see the accused also. Likewise, it is significant to note that all the three witnesses have maintained that they asked the victim, as to how the incident occurred, or so who inflicted the injuries, and that the Court is asked to believe that she gave out the accused to be the offender. It would suffice to say firstly that if the witnesses had themselves seen the accused causing injuries, there was no occasion for them to ask the victim, rather this clearly shows that the witnesses are trying to project a reassurance about having informed of the victim as well if somehow they are not believed to be eye-witnesses. Then a look at the statement of doctor P.W.19 shows that he has clearly deposed that there was no injury on the backside 14 of the neck, and that after receiving injury No.1 she can possibly not been in a condition to speak. We may recapitulate the dimension of injury No.1 being as under:- “Incised wound 24x5x9 cm on the face extending from left ear upto 7 cm in the front of the right ear cutting the nose, transversely piercing the maxillary bones with clotted blood, and exposure of bones, vessels and muscles.” And this leaves no manner of doubt that the whole nose and maxilla was cut through and through from left ear to right ear. Even on the broad commonsense, it is required to be comprehended that on receiving such injury she would lead profusely and an ordinarily built person may even loose senses and in any case cannot speak. Thus, this aspect also cast a serious dent in the reliability of the three witnesses as eye-witnesses. Then there are contradictions in their evidence inter se, inasmuch as, P.W.5 chosen to introduce 5-6 villagers and Natha Kumhar but then none of them have been produced in the trial. AT this place, we may also observe the over anxiety and unreliability of the three witnesses when they chose to depose their garments to have not received any blood stains, whether while putting the victim in the cot or putting her in the jeep, or handling her from here and there. Looking to the nature, dimension and location of the three injuries, this again is wholly impossible to believe that any person(s) handling such a victim would not receive any blood stains on the garments. Much has been said by learned trial Court about this having not been suggested to the three witnesses that 15 at the house