-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Abdul Khan & others Vs State of Rajasthan (1) D.B.CRIMINAL APPEAL NO.895/2003 Beerbal Khan Vs State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.931/2003 against the judgment dt.25.7.2003 passed by the Sessions Judge, Jaisalmer, in Sessions Case No.39/2000. Date of Judgment: May 22,2006 P R E S E N T HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE MANAK MOHTA Mr.P.N.Mohanani) Mr.L.D.Khatri ) for appellants. Mr.V.R.Mehta, Public Prosecutor. Mr.Pradeep Shah, for complainant. REPORTABLE/- BY THE COURT : (PER HON'BLE MR.MATHUR J.) 1. The appellants “A1” Abdul Khan, “A2” Motan Khan, “A3” Ali Gawar, “A4” Hanif Khan, “A5” Vali Mohd., “A6” Nijawat Khan & “A7” Beerbal Khan were put to trial on -2- the charge of forming unlawful assembly and in prosecution of the common object committing murder of Kumbha Ram and causing injuries to other prosecution witnesses. The Learned Sessions Judge, Jaisalmer by judgment dated 25 th July, 2003 having found the prosecution case proved, held the appellants guilty of offence under Section 302/149 IPC and sentenced each of them to imprisonment for life and to pay a fine of Rs.2000/- and in default, to further undergo six months' rigorous imprisonment. The appellants have further been convicted and sentenced as follows: (a) U/s.325/149 IPC : Two years' R.I. and a fine (Except Motan Khan) of Ra.500/- and in default, to undergo 3 months' R.I. (b) U/s.325 IPC : Two years' R.I. and a fine of (Motan Khan) Rs.500/- and in default, to undergo 3 months' R.I. (c) U/s.148 IPC : Two years' R.I. and a fine of Rs.500/- and in default, to undergo 3 months' R.I. (d) U/s.323/149 IPC : Six months' R.I. (e) U/s.447 IPC : Three months' R.I. 2. The factual scenario as emerged during the trial is that the appellants and the prosecution witnesses are the allottees of land for temporary cultivation in the -3- colony of Rajasthan Canal Project, District, Jaisalmer. . The appellants who belonged to the Muslim community are the old allottees in the area known as Hariar Minor within the jurisdiction of Nachna Colonisation Tehsil. P.W.1 Raimal by caste Kumhar and his two brothers namely P.W.2 Koja Ram and deceased Kumbha Ram were also allotted a piece of land in Chak No.3 of Hariar Minor. All the three brothers constructed separate huts on the land allotted to P.W.1 Raimal. With the help of deceased Kumbha Ram D.W.1 Chima Ram could also get a nearby Muraba allotted in his favour. It appears that the appellants were not happy with the induction of victim party in the area as allottees. It further appears that at the instance of Kumbha Ram a proceeding under Section 107 Cr.P.C. was initiated against the appellants and their associates by the police. The untowards incident took place on 7.7.2000 in which one Kumbha Ram died and some of the prosecution witnesses sustained injuries on one side and from among the appellants Nijawat Khan was seriously injured. Two F.I.R.s of the incident came to be lodged at Police Station, Nachna, out of which the first was lodged at 2:00 P.M. by the first appellant A1 Abdul Khan stating inter alia that having come to know A6 Nijawat Khan -4- being seriously injured as a result of thrashing by Koja Ram (P.W.2), Raimal (P.W.1) etc. he rushed to the spot alongwith A2 Motan Khan. They were also thrashed by the prosecution witnesses. He brought the injured A6 Nijawat Khan in a Jeep to the Police Station. On this information, Police registered a case being No.23/2000 for offence under Section 307 I.P.C. Both the injured Nijawat Khan and Motan Khan were sent to the Primary Health Centre at Pokran for medical examination. The Incharge of the Police Station, Nachna along with other police officials reached at the place of incident. P.W.2 Koja Ram gave narration of the incident vide Ex.P2. As per the version of incident given by him, he along with deceased Kumbha Ram, P.W.1 Raimal and Babu Ram with their families were at their place of residence on Chak No.3 HMR. At about 10-11 A.M. his neighbor D.W.1 Chima Ram approached to him. A vehicle carrying slabs and other building material jammed in the sand. There were about 15-20 labourers along with the vehicle. Chima Ram made a request to him to arrange tea for the said 15-20 labourers. Chima Ram could manage to take the vehicle to his Muraba. At that time A1 Abdul Khan, A2 Motan Khan, A4 Hanif Khan, A5 Vali Mohd. A6 Nijawat Khan and other namely Mehrab, -5- Mohammad Khan, Magan Khan, Suleman Khan and Peer Bux (not chargesheeted) and some more persons arrived on the land of Chima Ram and took up quarrel with him. They mounted assault on them by diverse weapons like Kulhari, lathies etc. In the assault Kumbha Ram died on the spot and number of persons sustained injuries. A1 Abdul Khan took the vehicle to his own Muraba and got the slaps and other building material unloaded. They were threatened not to report the matter to anybody else they may also be killed. Out of fear they did not move from the place of incident. However, they shifted the dead body of Kumbha Ram to the Muraba of P.W.3 Multan Singh. The police recorded the statement of P.W.2 Koja Ram on the Muraba of Multan Singh. On the basis of said Parch Bayan Ex.P2 police registered a case being No.24/2000 for offence under Sections 302, 147,148, 149. 447 and 323 I.P.C. and proceeded with investigation. After usual investigation police laid charge-sheets in both the F.I.R.s i.e. F.I.R. Case No.23/2000 and 24/2000. 3. The counter version about the incident was given by one of the appellants namely A6 Nijawat Khan in his statement under Section 313 of the Code of Criminal -6- Procedure. He stated that the deceased Kumbha Ram offered him to collect fodder from his Dhani instead of going elsewhere. Thus, on the date of incident, he had gone to the Dhani of Kumbha Ram for collecting fodder. However, he was pushed inside the hut wherein Kumbha Ram, Chima Ram, Koja Ram, Raimal Ram and other ladies mounted attack on him with intention to kill him. Kumbha Ram and Koja Ram inflicted injuries by giving Kulhari blows. The wives of Raimal Ram and Chima Ram also made assault on him. On account of the said injuries, mandible bone was fractured. He also sustained serious injuries on various parts of the body. He fell down and became unconscious. On gaining consciousness, he found himself admitted in the hospital at Jodhpur. He remained in the hospital at Jodhpur for more than a month for the treatment. The trial court acquitted the accused persons in F.I.R. Case No.23/2000. However, having found the prosecution case proved in F.I.R. Case No.24/2000 convicted and sentenced the appellants in the manner stated above. 4. It is contended by the learned counsel for the appellants that it is not safe to accept the evidence of prosecution witnesses more particularly in the instant -7- case, as they are partisans and highly interested. It is also submitted that prosecution has not come forward with the whole truth and that the origin of occurrence has been suppressed inasmuch as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and under these circumstances the truth from falsehood cannot be separated and, therefore, none of the appellants could be convicted. On the other hand it is submitted by the learned Public Prosecutor and the learned counsel by the complainant that the occurrence had taken place in the broad day light in a well planned manner and merely because the witnesses are interested, their evidence cannot be rejected and the view taken by the trial court does not call for interference. It is not in dispute that there has been hostility between the parties. The prosecution witnesses belonged to one fraction. It also appears that the accused and the prosecution witnesses sustained injuries in one and the same incident. It is significant to note that both the parties gave their version soon after the occurrence. Thus, the question arises for consideration in this appeal is as to whether the -8- incident had taken place in the manner alleged. It is also to be considered whether the case set up by the defence is acceptable. In view of the peculiar features of the case, we are required to appreciate the evidence of eye witnesses with great caution. 5. The prosecution examined 23 witnesses out of which P.W.1 Raimal, P.W.2 Koja Ram, P.W.6 Miss Santosh and P.W.13 Mohini are the injured eye witnesses. Whereas P.W.1 Raimal and P.W.2 Koja Ram are the brothers of the deceased Kumbha Ram, P.W.6 Miss Santosh is the minor daughter and P.W.13 Mohini the wife. P.W.2 Koja Ram deposed that all the three brothers were allottees of different Murabas in Chak No.3 Hariar Minor. All the three brothers constructed separate huts on his Muraba. All the three lived in the huts with their familes. D.W.1 Chima Ram was his neighbor. On the date of incident at about 9-10 A.M. they were ploughing the land. The tractor was being driven by Babu Ram. All the three brothers with their families were sitting outside the huts. At that time Chima Ram arrived and requested them for arranging tea. He stated that the vehicle carrying slabs and other building material had jammed in the sand. He was to -9- provide tea to the labourers. At that time some people in tractor and jeep arrived, which included A1 Abdul Khan, A2 Motan Khan, A3 Ali Gawar, A6 Nijawat, A7 Beerbal. They took up quarrel with Chima Ram and the people on the vehicle carrying slabs. They asked them not to unload the material on the Muraba as there was a stay order in their favour. D.W.1 Chima Ram and his companions P.W.23 Ramu Ram, P.W.4 Chena Ram and about 4-5 persons ran away and took shelter in the Dhani of deceased Kumbha Ram. Appellant Abdul Khan took the vehicle to his field and got the material unloaded. Some more about 15-20 persons joined them. After certain deliberation A7 Beerbal Khan arrived at the hut of Kumbha Ram and gave a call to Chima Ram and Kumbha Ram. He asked them to come out for settlement of the dispute. Kumbha Ram declined to come out of the hut. A7 Beerbal returned back to A1 Abdul Khan. After some time the mob surrounded the hut of Kumbha Ram. A1 Abdul Khan was carrying lathi, Ali Gawar and Hanif Khan Kassi, Beerbal Jayee, Motan Khan, Vali Mohammad and Nijawat Khan lathies in their hands. Magan Khan, Jamal Khan and Peer Bux were also carrying lathies in their hands. There were about 40-50 persons. The quarrel ensued. D.W.1 Chima Ram, who -10- was standing outside the hut of Kumbha Ram returned to his Muraba. A1 Abdul Khan gave a call to Kumbha Ram to come out. Kumbha Ram came out from the hut and pleaded mercy. As soon as he bent down to touch the feet of Abdul Khan, he (Abdul Khan) gave a lathi blow on his head as a result of which Kumbha Ram fell down. All the other accused persons with diverse weapons in their hands also thrashed Kumbha Ram. On intervention, P.W.1 Raimal Ram, P.W.13 Mst. Mohini the wife of Kumbha Ram and P.W.6 Miss Santosh the minor daughter of Kumbha Ram, were also thrashed. He was being assaulted by A2 Motan Khan. He sustained injuries on the back and hand. Raimal Ram sustained injuries on his legs. Driver and other witnesses ran away from the place of incident. Abdul Khan and the other accused persons left the place of incident after giving a threat of life on disclosing the incident to any one. On their departure, they entered in the hut. Kumbha Ram had died. The dead body of Kumbha Ram was taken to the Muraba of Multan Singh on a camel cart. He also stated that all the accused persons arrived on his land after forming an unlawful assembly. They were unhappy with him for getting land allotted to an outsider. He also gave other details of the -11- investigation. The statements of P.W.1 Raimal Ram, P.W.6 Santosh and P.W.13 Mohini Devi are almost on the same line. 6. P.W.3 Multan Singh is the neighbor of deceased Kumbha Ram. He stated that Abdul Khan was unhappy with the allotment of land in the colonisation area to Kumbha Ram, Koja Ram, Raimal and Chima Ram. He also stated that a preventive proceeding under Section 107 Cr.P.C. was taken against the appellants at the instance of Kumbha Ram. He also stated that on the date of incident at about 10-11 Om Prakash son of Koja Ram approached to him and informed that the persons of Muslim community of Village Hariar had surrounded their hut. He immediately rushed to the place of incident. He found the vehicle of A1 Abdul Khan parked. Abdul Khan was standing near the vehicle along with Motan Khan, Ali Gawar, Hanif Khan, Jamal Khan etc. and getting the slabs unloaded from the vehicle. Abdul Khan questioned him as to why outsiders are getting the land allotted in their area. He also stated that he had obtained a stay order with respect to allotment of the Muraba in question. He also stated that he wanted to get the dispute settled. He also stated that the -12- people were sitting in 2-3 groups. Beerbal Khan exhorted Abdul Khan to move towards the field of Kumbha Ram. After some time he heard the cries from the field of Kumbha Ram. He returned to his Dhani. After some time he went to the place of incident and found Koja Ram, Raimal and his family members were lying in injured condition. The dead body of Kumbha Ram was brought to his field on a camel cart. They were not having any means with them to reach Police Station for reporting the crime. However, at about 5:00 P.M. Police arrived and inquired about the incident. 7. P.W.4 Chena Ram is the neighbor of Chima Ram. He stated that Chima had brought the slabs and other building material in a vehicle. While he had got only 9- 10 slabs unloaded, about 10-12 persons of Muslim community arrived and asked him to stop. Thereafter they moved towards the field of Kumbha Ram. He had heard the cries of ladies and children from the field of Kumbha Ram. 8. P.W.5 Sumer Ram also stated that while D.W.1 Chima was getting the truck unloaded about 8-9 persons of Muslim community arrived and asked not to -13- get the material unload on his Muraba. Chima Ram moved to the field of Kumbha Ram. A quarrel took place outside the hut of Kumbha Ram. Before the incident took place Kumbha Ram asked him to bring his diary. In the diary Ex.P17 he recorded the names of the assailants. The other witnesses P.W.9 Samsudin, P.W.10 Lala Ram, P.W.11 Ishaq Khan and P.W.23 Ramu Ram have not supported the prosecution case, as such they were declared hostile. 9. The prosecution did not produce Chima Ram. The defence produced him as D.W.1. He stated that on the date of incident he had brought the slabs and other construction material in a vehicle. While he was getting the material unloaded some of the appellants approached to him and informed him about the stay order of the court. On their request he stopped the unloading of the material. After some time Abdul Khan, Nijawat Khan, Beerbal Khan proceeded towards the Dhani of Kumbha Ram. A quarrel took place on the Dhani of Kumbha Ram in which A6 Nijawat was seriously injured. Nijawat was immediately taken in a vehicle to the Police Station and then to the hospital. -14- 10. P.W.20 Suresh Kumar is the Patwari. He deposed that in Chak No.3 Hariar Minor in special allotment 18.18 Bighas of land in Muraba No.186/43 was allotted to P.W.1 Raimal Ram. The possession of the land was given on 30.6.99. On the said Muraba all the three brothers separately constructed their huts. He submitted a report in that regard as Ex.P41 along with the trace map Ex.P42 to the police. 11. P.W.21 Ishwar Singh A.S.I. Posted at Police Station, Nachna stated that after registering the case No.23/2000 he proceeded to the place of incident and recorded the statement of injured P.W.2 Koja Ram vide Ex.P2. P.W.22 Prem Singh the Incharge, Police Station, Nachna deposed that he inspected the site on 8.7.2000. He has given the details of investigation. He collected the blood smear soil from inside hut of Kumbha Ram vide Ex.P6. He also collected blood smear soil and controlled soil from outside the hut vide Ex.P7. Certain articles including the weapons of offence were collected vide Ex.P8, Ex.P9, Ex.P10 and Ex.P11. He prepared the inquest report vide Ex.P13. He has also given details of arrest of the accused appellants and the recovery of weapons of offence. In pursuance of the information -15- given by appellant Hanif vide Ex.P50 a blood stained lathi was recovered vide Ex.P25. Similarly a blood stained lathi was recovered from Vali Mohammad vide Ex.P26 in pursuance of the information given by him vide Ex.P51. Appellant Beerbal Khan gave information vide Ex.P52 which led to recovery of blood stained lathi vide Ex.P27. Further 9 bundles of wire were recovered from Ali Gavar vide Ex.P54 in pursuance of the information given by him vide Ex.P53. The motbirs of different memos namely P.W.9 Samsudin, P.W.10 Lala Ram and P.W.11 Ishaq Khan did not support the recoveries and as such they were declared hostile. The prosecution also produced witnesses of link evidence to show that the articles which were sealed and seized on the spot and till they reached to the Forensic Science Laboratory remained intact. It is not necessary to deal with the link evidence as the same has not been challenged. As per the FSL report Ex.P45 all the articles recovered have been found to be stained with human blood. 12. We may at this stage refer to the injuries sustained by deceased Kumbha Ram and the prosecution witnesses on one side and the injuries -16- sustained by the appellant A6 Nijawat Khan for determining as to how the incident took place. A medical board consisting of P.W.12 Dr.S.L.Jangid, P.W.14 Dr.Shantilal and P.W.17 Dr.Dinesh Sharma conducted autopsy on the dead body of Kumbha Ram vide Ex.P30 and noticed the following injuries:- 1. Fracture of right ramus of mandible; 2. Lacerated wound on upper fronto parietal region at mid part vertically oblique 6cm x 3cm x bone deep with fracture of underlying frontal and right parietal bone in multiple fragments, with laceration of brain matter and membranes of fronto right parietal area 5cm x 4m x 3cm cranial cavity full of fluid blood; 3. Lacerated wound 3cm x 2cm x scalp deep on occipital region. All the injuries were reported to be ante mortem in nature, caused by blunt object. The Board opined that cause of death was extensive laceration of brain and associated intracranial haemorrhage. 13. PW 14 Dr.Shantilal examined the injuries of other injured persons. He examined the following injury on the person of PW 6 Ms Santosh vide Ex.P.31:- 1. Lacerated wound 5 x 2 x 1/2cm on the centre of scalp. The injury was found to be simple in nature caused -17- by blunt object. 14. The doctor examined Smt.Paru Devi w/o Koja Ram vide Ex.P.32 but no mark of injury was found on her person. 15. The doctor examined following injuries on the person of PW 13 Mohini Devi vide Ex.P.33:- 1. Lacerated wound 3 x 1 x 1/2cm on the centre of scalp 2. Contusion 5 x 5cm on the back of right leg. Both injuries were found to be simple in nature, caused by blunt object. 16. The doctor also examined following injuries on the person of PW 2 Koja Ram vide Ex.P.34:- 1. Lacerated wound 3 x 2 x 1/4cm on the upper part of occipital region. 2. Pain, swelling on whole back of right hand. The first injury was found to be simply caused by blunt object. The second injury i.e. swelling on whole back of right hand, on radiological examination, was found to be grievous in nature. 17. The doctor noticed the following injuries on the -18- person of PW 1 Raimal vide Ex.P.35: “1. Lacerated wound 7 x 1 x 1/2cm on the centre of scalp; 2. Pain & swelling all around the left wrist join and back of hand; 3. Pain & swelling around the right wrist joint & back of hand; 4. Swelling and pain around the left knee and 3/4 th of leg; 5. Lacerated wound ¼ x 1/4cm skin deep on 2 nd phalynx of right middle finger posteriorly (back). 18. DW 1 Chima Ram was examined vide Ex.P.36. No mark of injury was found on his person. 19. The injuries of A6 Nijawat Khan were examined vide Ex.D.6A, which read as follows: 1. Incised wound 4 x 2 x bone deep with compound fracture of underlying mandible bone – on right side of chin (vertically oblique towards Rt.); 2. Complete dislocation of teeth 1,2,3,4 & missing sockets of the teeth lacerated; 3. Incised wound 01cm long cut of lower lip – just above the Inj.No.1 (through & through cut) Rt.side (vertically oblique); 4. Lacerated wound 3 x 2 x bone deep with compound fracture of nasal bone (Antero-post); 5. Incised wound 4 x 2 x 1/4cm on the Left side of -19- forehead; 6. Superficial burn 15 x 14cm on left buttock; 7. Superficial burn on the back of whole left ring finger & skin over the metacarpal bone of the left ring finger (Blisters, blackening & peeling of skin of all burns). 20. Another injury report placed on record is Ex.D.7, which also pertains to A6 Nijawat Khan. According to D.W.2 Dr.N.Bhargava, A6 Nijawat Khan was shifted to the hospital at Jodhpur, where he remained during the period 7.7.2000 to 26.7.2000. 21. On consideration of the entire evidence the following important facts emerged: (1) There existed hostility between the appellants and the prosecution witnesses on account of recent allotment of Murabas in the Canal Colony Area of Hariar Minor. (2) The occurrence took place on the Muraba of P.W.1 Raimal Ram inside and outside the hut of deceased Kumbha Ram. (3) The prosecution case of causing fatal injuries by A1 Abdul Khan to the deceased -20- Kumbha Ram finds corroboration from the medical evidence and other incriminating circumstances. (4) The incident took place inside and outside the hut of Kumbha Ram. The State initiated two prosecution cases by filing charge-sheets in F.I.R. Case No.23/2000 and 24/2000. (5) The prosecution witnesses in the instant case and accused in F.I.R. Case No.23/2000 have been acquitted of charge under Section 307, 307/149 I.P.C. by the court of Sessions Judge, Jaisalmer. However, the defence version in the instant case i.e. F.I.R. Case No.23/2000 has appeared at the earliest in F.I.R. Case No.23/2000. The prosecution did not produce the material witness like Chima Ram. However, he was produced by the defence as D.W.1. He deposed that oral altercation took place in which the appellant A6 Nijawat Khan sustained severe injuries. He also deposed that he immediately left the place and after some time when he returned, -21- found Kumbha Ram dead. He was told that Kumbha Ram was murdered by A1 Abdul Khan and others. It shows that a free fight took place on the Muraba of P.W.1 Raimal Ram in which on the prosecution side Kumbha Ram died and from the side of accused persons Nijawat Khan sustained severe injuries. The other prosecution witnesses suffered minor injuries. (6) All the eye witnesses are consistent in their deposition that after the