-:1:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. D.B.CRIMINAL APPEAL NO.1021/2008. MOHSIN @ MUNNA @ MUSHTAR @ MUSHTAQ. VERSUS STATE OF RAJASTHAN. 2. D.B.CRIMINAL JAIL APPEAL [DEFECT NO.0494/2008] MUNNA @ MOHSEEN. VERSUS STATE OF RAJASTHAN. AGAINST THE JUDGMENT AND CONVICTION ORDER DATED 25.01.2001 PASSED BY SHRI JAGDISH NARAIN SHARMA, R.H.J.S., SESSIONS JUDGE, TONK IN SESSIONS CASE NO.63/1998 WHEREBY THE ACCUSED APPELLANT HAS BEEN CONVICTED AND SENTENCED FOR LIFE IMPRISONMENT FOR THE OFFENCE UNDER SECTION 302 AND 302 READ WITH 120-B I.P.C. Date of Judgment. : October 15th, 2009. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE K.S.CHAUDHARI HON'BLE MR.JUSTICE K.S.CHAUDHARI Mr.Vinay Pal Yadav, for the appellant. Mr.J.R.Bijarnia, Public Prosecutor for the State. BY THE COURT (PER HON'BLE SINGH,J.): D.B.CRIMINAL APPEAL NO.1021/2008 This appeal has been preferred by the accused appellant Mohsin @ Munna @ Mushtar @ Mushtaq son of Ahmed -:2:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] Hussain @ Mohammad Hussain who was convicted by the learned Sessions Judge, Tonk in Sessions Case No.63/1998 vide judgment dated 25.01.2001 for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- and for the offence under Section 302 read with Section 120-B I.P.C. wherein also he was sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-; in default of payment of fine to undergo further two months imprisonment. The accused appellant was, however, acquitted by the learned trial court of the offence under Section 177 I.P.C. 2. We have heard learned counsel for the accused appellant and the learned Public Prosecutor for the State and perused the record. 3. The facts, in brief, are that an FIR (Exhibit P-67) came to be registered on 23.07.1998 on the basis of a written report (Exhibit P-1) made by Matin Aadil (PW-1) at Police Station Kotwali, Tonk wherein it was stated that in the morning at about 7:30 AM his brother Javed (deceased) had proceeded to the worksite where the construction work was going on. At about 8:00 AM, the witness PW-1 Matin Aadil also followed him and saw that one Naseeb went towards the site on his motorcycle bearing registration No.RJ-26/M-3097. It was stated that -:3:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] Naseeb was riding the motorcycle and another person who was staying at the house of Mussavir was on the pillion seat and both of them went towards the construction site. It was stated in the FIR that these two persons reached the site before the witness reached. Matin Aadil (PW-1) further stated in the report that when he reached the spot, he saw a person inflicting three blows with a gupti (sharp edged weapon, a knife) on the chest and thereafter jumping over the wall and running away. When he reached the deceased, brother of PW-1 Matin Aadil, the deceased Javed told him that Mohsin (the accused appellant) who was staying at the house of Mussavir had inflicted blows with a gupti and had run away. The deceased (Javed) also told PW-1 Matin Aadil that on the previous day i.e. 22.07.1998 also Naseeb and Mohsin had come to the construction site. PW-1 Matin Aadil further stated in the report that the deceased became unconscious after narrating the aforesaid incident to him and disclosing the name and identity of the deceased. He further stated in the report (Exhibit P-1) that on the construction site PW-18 Jameel Miyan, PW-7 Riyaz Khan and PW-20 Prabhu Lal and other workers were also present who had also witnessed the incident. He further stated in the report that they had taken Javed from the construction site to the hospital where his brother (Javed) was declared dead. In the report he stated that his brother (Javed) had been murdered by Mohsin, Naseeb, Mussavir and others having conspired to murder him. -:4:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] 4. On the aforesaid report, FIR No.296/1998 (Exhibit P-67) came to be registered at the Police Station Kotwali, Tonk on 23.07.1998 at 9:35 AM for the offence under Section 302 and 120-B I.P.C. 5. After recording the aforesaid FIR (Exhibit P-67) for the offence under Section 302 and 120-B I.P.C., the accused appellant came to be arrested on 23.07.1998 itself. The arrest memo is Exhibit P-18. In the meanwhile, the police had visited the site and prepared the site plan (Exhibit P-2). While carrying out the site inspection, the police also recovered the cover of the knife (gupti) from the site which is Exhibit P-3. At the site the police also found footprints near the place of incident and lifted the footprints by plaster cast vide Exhibit P-10. It may be stated here that after the arrest of the accused appellant, the shoes which were worn by the accused appellant were also seized vide Exhibit P-11. The plaster cast and the shoes were sent for comparison to the Forensic Science Laboratory (F.S.L.) and the report of F.S.L. is Exhibit P-73 on record. 6. The accused is said to have given the information under Section 27 of the Indian Evidence Act after his arrest which is Exhibit P-69 and as a result of the same it led to the recovery of the gupti (knife) which was recovered at the instance of the -:5:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] accused appellant Mohsin and the recovery memo is Exhibit P- 14 and the description of place along with site plan from where the recovery was made at the instance of the accused appellant is Exhibit P-15. At the time of arrest of the accused appellant Mohsin, a search was carried out of his person and he was found to be in possession of cash amounting to Rs.9,330/- which was seized vide Exhibit P-60. The police recorded the statement of the eye witnesses and since other accused persons were also figuring in the investigation carried out by the police, the police arrested the other accused persons namely Mohammad Zahid, Naseeb and Sayyed Mussavir Shah all residents of Tonk. All the four accused persons including the present appellant were charged with Section 302 read with Section 120-B I.P.C. and the present accused appellant was in addition charged with Section 302 and 177 I.P.C. 7. During the course of investigation by the police, since the accused appellant had been denying his identity as Mohsin, the police proceeded to investigate the identity of the accused appellant and in this connection went Bhopal as well as to Indore in Madhya Pradesh. The accused appellant had been giving various aliases and names and, therefore, it became imperative for the police to find his correct identity as according to the prosecution witnesses he had been in Tonk for a few -:6:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] days prior to the alleged incident and had disclosed his name as Mohsin resident of Bhopal in Tonk but after his arrest he gave his name as Munna @ Mushtaq resident of Indore. In this connection the police proceeded to Bhopal and contacted the local police there as well as the police at Indore after the police came to know that he was a resident of Indore. On being shown the photograph of the accused appellant which is Exhibit P-39 on record, the police officials PW-35 Chandra Kant and PW-36 Subhash Kumar Mishra identified the accused appellant to be Munna @ Mushtaq resident of Raoji Bazaar, Mohalla South Toda, Indore. PW-36 Subhash Kumar Mishra who was the S.H.O. of Police Station Raoji Bazaar, Indore after identification of the accused appellant disclosed to the Sub Inspector Narayan Singh Ratnu PW-30, who went to investigate the identity of the accused appellant, that the person shown in the photograph Exhibit P-39 was one Munna @ Mushtaq and that he was wanted in Criminal Case No.233/1994 for the offence under Section 307/34 I.P.C. The witness PW-36 also produced the relevant file i.e. the copy of Case Diary (Exhibit P-70) of the said case and its photostat copy is Exhibit P-70A, produced by the prosecution on record. The witness PW-36, the S.H.O. Raoji Bazaar, Indore, Madhya Pradesh also disclosed that the person in the photograph (Exhibit P-39) is accused appellant Mohsin. The accused appellant was also an accused in the Criminal Case -:7:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] No.44/1997 lodged by one Mohammad Salim under Section 307, 294, 34 and 302 I.P.C. The documents in that behalf are Exhibit P-71 and its photostat copy is Exhibit P-71A. Another fact which was disclosed by the witness PW-36 was that the photograph (Exhibit P-39) is that of the accused appellant Mohsin who had escaped from the custody of challani guard while under trial and a report to that effect was lodged on 06.05.1998 registered as Case No.97/1998 for the offence under Section 224 I.P.C. which report was produced as Exhibit P-72 on record. The witness PW-36 identified the photograph (Exhibit P-39) in court as the one which was brought by the witness PW-30 Narayan Singh Ratnu and shown him at Indore which is Exhibit P-39 on record. He also identified the accused appellant Mohsin, who was present in the court, as the person who is known as Munna alias Mushtaq and against whom the aforesaid cases were pending and who is shown in the photograph (Exhibit P-39). 8. PW-1 Matin Aadil, brother of the deceased Javed reiterated the story as given out in his report (Exhibit P-1) and stated that when he reached the deceased, the deceased told him that the person who was staying at the house of Mussavir was Mohsin and Mohsin has inflicted the blows with the knife (gupti) on him. He also disclosed that the deceased Javed told him that Mohsin and Naseeb had come to the construction site -:8:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] the previous day. This witness also stated that his sister PW-4 Nishat Rafi is married to Mohammad Zahid, the co-accused. He stated that the character of Mohammad Zahid was not good and, therefore, with a view to see to the interest of their sister, they had engaged Mohammad Zahid in the construction business as a construction contractor. He stated that deceased Javed Iqbal also used to tell Mohammad Zahid to mend his ways but this was not taken well by Mohammad Zahid and Mohammad Zahid as a result thereof decided to do away with Javed Iqbal and plotted his murder and in this connection hired the services of accused appellant Mohsin who was a notorious person of ill repute. This he came to know later on and that Mohammad Zahid hired the services of the accused appellant after having paid him sufficient amount. The witness PW-1 Matin Aadil identified the accused appellant as the one who was sitting on the pillion seat of the motorcycle being driven by the accused Naseeb on the fateful morning and he saw them when they overtake him. 9. The other witness who saw the incident is PW-18 Jameel Miyan. PW-18 Jameel Miyan stated that on 23.07.1998 he was working as Munshi with Javed Iqbal, the deceased and while he was at the site doing his work, PW-20 Prabhu Lal had come with his tractor. The deceased Javed was sitting under a neem tree. At about 8:00 - 8:30 in the morning, he heard the shouts of Javed and he saw that a hefty man was inflicting blows with -:9:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] a knife on Javed. The witness tried to chase the assailant but the assailant jumped over the wall and ran away. Javed got up from where he was sitting. He further stated that PW-1 Matin Aadil, PW-7 Riyaz Khan, PW-20 Prabhu Lal and he reached Javed and Javed was holding his chest and was screaming the name of Mohsin and stated that Mohsin had inflicted gupti blows on him and has run away. He further stated that PW-1 Matin Aadil told him to get a jeep immediately and he proceeded to get a jeep to take Javed to the hospital. At that point of time the deceased Javed became unconscious and they took him to the hospital in the jeep where Javed was declared dead. Pointing towards the accused appellant Mohsin in the Court the witness stated that he was the person who had inflicted the blows on Javed, the deceased and identified him as the assailant. 10. Among the eye witnesses PW-20 Prabhu Lal has also stated that he was at the site of the construction on 23.07.1998 and had come with his tractor to the site where the construction of the girls school was going on. He has corroborated the presence of PW-1 Matin Aadil and PW-7 Riyaz Khan. He further stated that a hefty man came there and met Javed and while they were talking he saw the hefty man take out a knife and inflict 3 or 4 blows on Javed Miyan, the deceased. Thereafter, that man ran away after having jumped over the -:10:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] wall. This witness has also stated that Javed, deceased, was giving out the name of Mohsin as the person who had inflicted the blows. He pointed out towards the accused appellant Mohsin, who was present in the court, to be the person whom he had seen inflicting the blows with the knife on Javed, deceased. 11. The other eye witness is PW-7 Riyaz Khan who has also corroborated the testimony of PW-1 Matin Aadil. He has stated that he was at the construction site of the girls school where Javed, deceased, was carrying out the construction and about 8:30 in the morning, he saw a motorcycle coming bearing registration No.RJ-26/M-3097 on which two persons were sitting. Naseeb was driving the motorcycle and behind him a hefty man was sitting. They stopped the motorcycle at the gate and the hefty person who was on the pillion seat proceeded and went towards Javed and after exchanging the pleasantries Javed asked the hefty man “Mohsin how have you come.” The two of them shook hands and suddenly the hefty man took out a knife from his pocket and inflicted blows on Javed (deceased) and immediately thereafter as the witness tried to proceed to assist Javed he saw the assailant jump over the wall and run away. He has also corroborated the fact that PW-18 Jameel, PW-1 Matin Aadil and PW-20 Prabhu Lal were at the site along with a few labourers. He has also stated that Javed (deceased) -:11:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] told the witness that Mohsin who is the friend of Mussavir had inflicted the blows with a knife and ran away. He further stated that soon after giving the aforesaid information Javed (deceased) became unconscious. He stated that Jameel brought a jeep and took Javed to the hospital where he was declared dead. He identified the accused appellant Mohsin as the person who was sitting on the pillion seat of the motorcycle behind Naseeb. This witness has also deposed that the Police lifted the footprints from the site of which the seizure memo is Exhibit P-10 which bears his signature at A to B. He is also the witness of the seizure memo of shoes of accused appellant which is Exhibit P-11. 12. Apart from this evidence of the eye witness, the other evidence produced by the prosecution is of PW-2 Shabbir Masood, brother of the deceased. This witness has deposed that his sister Nishat Rafi is married to Mohammad Zahid and Mohammad Zahid and his sister started to live in Mumbai. Thereafter, the brother-in-law Mohammad Zahid started indulging in bad habits and started to ill-treat his sister Nishat Rafi. It is said that Mohammad Zahid started indulging in drinking liquor as well as taking drugs and these facts were told by Nishat Rafi to her brothers. At this point of time, Mohammad Zahid shifted from Mumbai to Tonk but was not doing anything. Javed Iqbal (deceased) as a result thereof, with a view to help -:12:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] his sister and brother-in-law persuaded Mohammad Zahid to start a construction business so that he could set up his own work with his help. He further stated that there was an altercation between Mohammad Zahid and Javed (deceased) who wanted to take his sister Nishat Rafi to Jaipur to see a close relative who was unwell but Mohammad Zahid, her husband, was not agreeable and this resulted in altercation which led to animosity between the two and Mohammad Zahid threatened to take revenge. This witness has also stated that about seven or eight days prior to the incident in which Javed died, he had seen a stranger along with Mohammad Zahid, Mussavir and Naseeb and these persons were often seen in the bazaar. Pointing out towards the accused appellant Mohsin by touching him, the witness PW-2 stated that the stranger he saw is the person present in the court – Mohsin, the accused appellant. He has further stated that on the day of incident i.e. 23.07.1998 when he learnt about the murder of Javed and when he went to the Kotwali after coming to know that the assailant had been arrested, he saw the same stranger - Mohsin, the accused appellant, present in the Kotwali. 13. Next prosecution witness is PW-3 Abdul Kalim who has stated that about 8:00 in the morning, he saw two persons on a motorcycle moving on the road coming from Sawai Madhopur to Tonk. The said motorcycle was being driven by Naseeb, the -:13:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] co-accused and Mohsin, the accused appellant was sitting on the pillion seat. He stated that when he came to the office in the market, he came to know about the murder of Javed Thekedar. On coming to know about the incident, he went to the hospital and found that Javed had in fact been murdered. He stated that later it was heard that Mohsin had murdered him. The only important thing which he has stated is that he has seen Naseeb and Mohsin going on the motorcycle on the fateful day towards the construction site where the murder took place. This is by way of corroboration by an independent witness from the side of prosecution. 14. The next witness produced by the prosecution is PW-4 Nishat Rafi wife of Mohammad Zahid, one of the co-accused, and sister of the deceased as well as PW-1 Matin Aadil and PW-2 Shabbir Masood. She has reiterated the facts which were given out by PW-2 her brother Shabbir Masood regarding the family life of the couple i.e. herself and Mohammad Zahid, the co-accused and how they were living in Mumbai and the accused Mohammad Zahid was indulging himself in bad habits of drinking liquor and addicted to drugs. She has also confirmed the incident of Javed wanting to take his sister to Jaipur where one of the nephews was to be operated and this having resulted in an altercation between the deceased and her husband Mohammad Zahid and Mohammad Zahid - the co- -:14:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] accused, threatening the deceased that he would take a revenge. It has come in the evidence that as a result of this quarrel, she came to live in her parental home but later a compromise was arrived at and she went to live in the matrimonial home with her husband. She has also stated that many a times she had seen Mussavir coming to her husband’s house and that she knew Mussavir. She has also stated that her husband was well known to Mussavir. She has stated that about 15-20 days prior to the incident, a stranger had come with Mussavir to their house along with her husband Mohammad Zahid. She asked her husband regarding the identity of the stranger and her husband Mohammad Zahid told her that this person is an acquaintance from Bhopal and known to him as well as Mussavir. She has stated that these persons used to often come to the house and whenever she come with a cup of tea for them they would become silent in her presence. She identified the accused appellant Mohsin, present in the court, as the person who was the stranger and who was accompanying Mussavir and who had come with her husband to her house. It may be noted that this witness has deposed against her own husband who also faced trial along with the accused appellant as a co-accused. She has also stated that after the altercation between the deceased Javed and her husband Mohammad Zahid on the question of going to Jaipur, an agreement was arrived at between the families and she -:15:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] returned to her matrimonial home as a result thereof. The relevant portion of her statement reads as follows:- "मेरे पǐरवार वालɉ मेरȣ मà मी वगैरा ने बातचीत कȧ और सुलह हो गई । इसके बाद मɅ अपने पित के साथ अपने घर चली गई । इसके बाद मेरे घर पर मुसÞ ि◌बर का मेरे पित के पास आना-जाना Ï यादा हो गया । क× ल के 15-20 Ǒदन पहले मेरे पित व मुसÞ ि◌ब र के साथ एक अजनबी आदमी आया । मेरे उस अजनबी के बारे मɅ पूछने पर मेरे पित ने बताया Ǒक यह मेरा व मुसÞ ि◌ब र का दोः त है तथा भोपाल का रहने वाला है । तीन - चार बार यह लोग आये ǔजनमɅ एक-दो बार नसीब भी आया । यह लोग ऊपर बैठ कर आपस मɅ बातɅ करते और मɇ चाय लेकर जा ती तो यह चुपचाप हो जाते । गवाह ने हाǔजर अदालत मुलǔजम मुसÞ ि◌ब र कȧ और इशारा करके बताया Ǒक यहȣ वयÈ ि◌त मुसÞ ि◌बर है तथा आज मेरे पित व नसीब एवं वह अजनबी आदमी मोहसीन भी आज हाǔजर अदालत है ।" 15. On being cross examined, the witness PW-4 Smt.Nishat Rafi has stated as follows:- "यह गलत है Ǒक मɇ घटना के पÛ िह Ǒदन पूव[ मेरे पित व मुसÞ ि◌बर के साथ एक अजनबी आदमी के आने कȧ बात गलत बताती हं । यह कहना गलत है Ǒक मेरे पित ने मुझे ू अजनबी å यÈ ि◌त के भोपाल के रहने वाला होने का नहȣ बताया हो ।" 16. Further in the cross examination this witness has stated as follows:- "यह गलत है Ǒक हमारे घर पर कोई अजनबी आदमी नहȣ आया हो ।" 17. The next witness is PW-5 Shakeel who has corroborated the testimony of PW-4 Nishat Rafi regarding his intervention -:16:- 1. D.B.CRIMINAL APPEAL NO.1021/2008. 2. D.B.CRIMINAL JAIL APPEAL [DEF.NO.0494/2008] and mediation in arriving at the compromise between the families of the deceased and co-accused Mohammad Zahid, husband of PW-4 Nishat Rafi. He has also corroborated that as a result of his mediation, Nishat Rafi agreed to go and live with Mohammad Zahid. 18. So far as the preparation of site plan is concerned, the prosecution has produced PW-8 Mohammad Qamar Siddique as a witness before whom the site plan was prepared. This witness has stated that police had come to the spot and prepared the site plan (Exhibit P-2) which bears his signature at C to D. This witness has also deposed that the police recovered a case of a knife from the place of incident and the seizure memo of the same is Exhibit P-3 which also bears his signature. He has also stated that the police recovered a pair of leather slippers black in colour from the site and prepared the seizure memo – Exhibit P-4. The police also took blood stained sand from the site of the crime and seized the same vide Exhibit P-5 which bears his signature. 19. The next