1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T 1.Jakir Hussain son of Noor Mohammed 2.Jiya-ul-Haq son of Noor Mohammed 3.Harun Khan son of Karim Khan 4.Hanif Khan son of Karim Khan 5.Noor Mohd. son of Rahim Bux, All by caste Mev, Resident of Ahmedpur, Police Station Malakheda District Alwar. Vs. State of Rajasthan through its Public Prosecutor. D.B. Criminal Appeal No. 184/2004 against the judgment & order dated 29.1.2004 passed by the Additional Sessions Judge (Fast Track) No.1, Alwar in Sessions Case No. 162/2001 (95/2001). Date of Judgment 1st February, 2010 PRESENT HON'BLE MR. JUSTICE S.P.PATHAK HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Biri Singh with Mr. Rajesh Choudhary for the appellants. Mr. J.R.Bijarnia Prosecutor for the State. Mr. Mahendra Sharma for the complainant. **** BY THE COURT: (Per Hon'ble Mr. Chaudhari,J.) This appeal has been filed against judgment dated 29.1.2004 passed by Additional Sessions Judge (Fast Track) No.1, Alwar by which she convicted accused- appellant-Noor Mohammed under Section 302 IPC and sentenced him to undergo life imprisonment and fine of 2 Rs.5,000/-, in default of payment of fine to further undergo one year's rigorous imprisonment and under Section 148 IPC sentenced him to undergo three years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo three months rigorous imprisonment and further convicted other accused-appellants Jakir Hussain, Jiya-ul-Haq, Harun Khan and Hanif Khan under Section 302/149 IPC and sentenced each accused to undergo life imprisonment and fine of Rs.2,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment and under Section 148 IPC sentenced each of them to under three years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo three months rigorous imprisonment and further ordered that as accused-persons have already been convicted under Section 302 and 302/149 IPC no seperate sentence under Section 120-B is required to be awarded. Brief facts of the case are that PW1-Hakam Khan lodged FIR Ex.P/1 on 13.6.2001 at 12.30 A.M. and alleged that on 12.6.2001 his brother Kayum Khan went on motorcycle to Alwar in the morning to get gas cylinder filled and left Alwar between 7 to 8 p.m. after getting gas 3 cylinder filled. While returning back, one Jeep No.RJ-02- C-1627 in which accused Noor Mohd., Jakir Hussain, Jiya- ul-Haq, Jahir Hussain, Hanif & Harun were travelling followed motorcycle from Dhawala Farm and hit motorcycle of Kayum Khan on account of which Kayum Khan's motorcycle fell down. All of them caught hold of Kayum Khan and accused Noor Mohammed, Jakir Hussain, Jiya-ul-Haq, Jahir Hussain inflicted injury on the head of Kayum Khan with a weapon whereas other accused persons caught hold of him. Sadik Khan and Fakru Khan while returning from Alwar in a tractor saw the occurrence who informed them on telephone about the occurrence. On getting information, he alongwith his family members reached on the spot and saw the body of Kayum Khan and injury on the head of the deceased and blood on the spot. It was further alleged that on account of previous enmity murder has been committed and he informed at Chowki Akbarpur. On this report, case under Section 147,302 IPC was registered and after completion of investigation challan under Section 147,148,302/149, 120-B IPC was filed against accused appellants alongwith accused Jahir Hussain in the Court of A.C.J.M.No.1 Alwar showing accused-Jahir Hussain and Noor Mohammed as absconding. The case was committed to the Court of 4 Sessions Judge, Alwar from where case was transferred to Additional Sessions Judge (Fast Track) Alwar. Accused-Noor Mohammed appeared and charges under Section 148,302,302/149, 120-B, IPC were framed against accused-appellants, to which they denied. During trial, prosecution examined 19 witnesses and after recording statements of accused-persons under Section 313 Cr.P.C. and hearing arguments accused-appellants were convicted and sentenced as aforesaid. Supplementry charge sheet was filed against accused-Jahir Hussain in the Court and by order dated 29.10.2002 that charge sheet was consolidated with original sessions case, but by order dated 29.3.2003 file of accused-Jahir Hussain was again detached. Heard learned counsel for the parties and perused the record. Learned counsel for the appellants argued that the trial Court has committed error in placing reliance on the evidence of two eye witnesses as they were not eye witness to the occurrence and were in relation to deceased and had enmity with the accused-appellants. It was further submitted that report lodged at Chowki Akbarpur has been suppressed and there is no explanation of delay in sending FIR to the Court. It was 5 further submitted that this is a case of pure and simple accident, hence, the appeal may be accepted and the accused-appellants may be acquitted of the charges levelled against them. On the other hand, learned Public Prosecutor and learned counsel appearing for the complainant argued that the prosecution has proved beyond reasonable doubt the charges against the appellants and the trial Court has given cogent reasons for conviction, hence, the appeal of the accused-appellants may be dismissed. PW1-Hakam Khan has stated in his statement that on 12.6.2001 at 8.30 p.m. Sadiq informed him that accused-persons committed murder of Kayum, then he alongwith his cousin Gaffar and neighbourer- Mohammeddin reached on the spot and saw that dead body of Kayum was lying on the driver side of jeep and Kayum's motorcycle was lying on the conductor side of jeep. Kayum sustained injury on the head. He further stated that Sadiq met them on the spot who revealed that accused Noor Mohd. inflicted injury with Kulhari and accused Jia-ul-Haq and Harun inflicted injuries with Sariya on the body of deceased-Kayum and other persons surrounded Kayum. Lateron he lodged report 6 Ex.P/1. He has admitted in his cross examination that whatever he has mentioned in the report Ex.P/1 is as per information given by Sadiq. Thus, it becomes clear that PW1-Hakam Khan is not an eye witness to the occurrence which also becomes clear by perusal of report Ex.P/1. PW4-Gaffar Khan, who accompanied PW1-Hakam Khan, has also stated in his statement that on telephonic information by Sadiq to Hakam Khan, he alongwith Hakam Khan and Mohammeddin reached on the spot where Sadiq narrated him about the incident. He further submitted that jeep was driven by accused-Jakir in which Noor Mohd. alongwith 2-3 persons were sitting. He has also stated that he saw motorcycle alongwith cylinder, dead body of Kayum near jeep. Thus, it becomes clear that he is not an eye witness to the occurrence. PW6- Suleman, who is father of deceased-Kayum, also stated in his statement that while returning from Masjid he heard that Kayum has been murdered then he alongwith family members reached on the spot and saw jeep of accused-Noor Mohd., motorcycle of Kayum alongwith cylinder and body of deceased-Kayum. He also stated that there was grievous injury on the head of Kayum and Sadiq told him on the spot that the accused-persons caused death of Kayum. Thus, it becomes clear that all 7 the aforesaid witnesses are not the eye witnesses. Only PW2-Sadiq Khan and PW3-Fakruddin have been examined by the prosecution as eye witnesses. Learned counsel for the appellants argued that both the so called eye witnesses PW2-Sadiq and PW3-Fakruddin are interested witnesses and have enmity with the accused-appellants, so no reliance can be placed on their evidence. PW2-Sadiq has admitted in his cross examination that his wife is real sister of deceased- Kayum's wife. PW3-Fakruddin is real brother of PW2- Sadiq. Thus, it becomes clear that both these witnesses, who are real brothers are in relation to deceased-Kayum and so they are interested in prosecution of appellants. PW2-Sadiq and PW3-Fakruddin admitted in their cross examination that they purchased the land from accused- Noor Mohd. in Rs.1,16,000/-. They denied this fact that they have paid only Rs.11,000/- and asserted that they have made full payment, but still sale deed of land has not been registered in their name. PW3-Fakruddin has denied this fact that without making payment he wants to get sale deed registered in their name. The prosecution has not brought on record the receipt of payment of Rs.1,16,000/- by these two witnesses to accused-Noor Mohd. as consideration for sale of land. 8 Accused-Noor Mohd. has also stated in his statement under Section 313 Cr.P.C. that Sadiq and Fakruddin have not made him payment of land, but has taken possession of the land and there is dispute of land between him and these witnesses. In such circumstances, it becomes clear that there is some dispute between the witnesses and accused-Noor Mohd. regarding sale consideration of land. When both witnesses are interested in prosecution and have enmity with accused-Noor Mohd. and his family, statements of these witnesses require strict scrutiny. PW2-Sadiq has stated that he alongwith his brother Fakruddin left Khairthal in Tractor on 12.6.2001 at 4 to 5 p.m. They reached Alwar at 8.30 p.m. as soon as they crossed triangle of Siliset, deceased-Kayum crossed (overtake) them on motorcycle alongwith gas cylinder. At the same time jeep of accused Noor Mohd., which was being driven by accused-Jakir, also crossed them. He further stated that Noor Mohd. was sitting in the jeep alongwith 2-3 other persons. Lateron two motorcycles with one pillion rider on each motorcycle also crossed them and he apprehended that there may be some mischief, so he asked his brother Fakruddin to increase speed of tractor as there was enmity between Kayum and Noor Mohd. He further stated that as soon as 9 they reached near Anar Farm he saw that three motorcycles and one jeep were parked near Dhawala and further saw in tractor's light that accused-Noor Mohd. was inflicting blows with Kulhari, accused-Harun and Jia- ul-Haq were inflicting blows with sariya on the body of Kayum and other accused-Hanif, Jahir were surrounding Kayum. He further stated that as soon as they reached near the place of occurrence accused-persons had left the spot and Kayum had died, then he informed on telephone about the incident to Hakam Khan. Lateron Hakam Khan, Gaffar and Mohammeddin came on motorcycle to whom he narrated the whole incident. He has also admitted in his cross examination that he had not seen any weapon in the hands of accused-Hanif, Jakir and Jahir. He also stated that he identified all the accused-persons on the spot who inflicted injuries but could not identify 4 persons on two motorcycles and 2 to 3 persons sitting in the jeep. Further he improved his statement and stated that six persons were inflicting injuries on the spot and 2 to 4 persons were standing on the spot after concealing their identity by clothe on the face. Lateron he admitted that accused-persons had left the spot when they reached on the spot. 10 This admission of PW2-Sadiq makes it clear that he had not seen the accused-persons on the spot. Further his presence on the spot as eye witness cannot be believed because he admitted that when police came on the spot he did not narrate anything about the incident to the police though police remained there whole night. He further admitted that right upto 14th June, 2001 he did not disclose incident to the police and his statement under Section 161 Cr.P.C. was recorded on third day of the occurrence. PW2-Sadiq has stated that accused-Noor Mohd. inflicted injuries with Kulhari whereas accused-Harun,Jia- ul-Haq inflicted injuries with sariya. His statement has also been corroborated by PW3-Fakruddin, but Fakruddin further added that accused-Jakir Hussain, Hanif, Jahir, Harun were inflicting blows by kicks and fists on the body of Kayum whereas Sadiq has stated that only Hanif and Jahir surrounded deceased-Kayum, but he has no where stated that they were inflicting blows by kicks and fists. PW2-Sadiq has admitted that in his police statement Ex.D/2 it has not been mentioned that accused-Noor Mohammed was inflicting blows with Kulhari though he stated this fact in his police statement. He has further stated that in police statement it has wrongly been 11 mentioned that accused-Noor Mohammed was inflicting blows with sariya as he told that Noor Mohd. was armed with kulhari. He denied the police statement Ex.D/2 in which this fact has been mentioned that he went to Chowki Akbarpur, informed police personnels and intimated by telephone at the residence of Kayum. PW3-Fakruddin has stated that as per advise of Sadiq he left in tractor for his home and in the way, near their Village, Gaffar, Mohammeddin and Hakam Khan met him and he revealed the whole incident, whereas PW1-Hakam Khan has admitted in his cross examination that the whole incident was narrated to him by Sadiq and he just had a passing taking on the way with Fakruddin. Had Fakruddin met with Hakam Khan just after the incident, he must have narrated the whole incident to Hakam Khan. PW3-Fakruddin had also admitted in his cross examination that none of the accused was present on the spot when they reached there, lateron improved his statement and stated that all accused-persons were present on the spot. PW3-Fakruddin had also stated that jeep was put in front of motorcycle of Kayum and lateron accused-persons inflicted blows on the body of Kayum whereas as per report Ex.P/1 jeep hit the motorcycle and lateron all the accused-persons inflicted blows on the 12 body of Kayum. In report Ex.P/1 neither any spicific role has been assigned to any accused nor any specific weapon has been shown in the hands of any of the accused-person, whereas in statements before the Court PW2-Sadiq and PW3-Fakruddin have assigned specific role of each accused and have further assigned specific weapon in their hands. Had they seen the occurrence, all these facts must have formed part of report Ex.P/1. PW3- Fakruddin has stated that Sadiq informed by telephone and afterwards he left for his house. He has also admitted in his cross examination that he did not reveal these facts to police even on second day. He has also admitted that site plan was not prepared in his presence and he did not go to Alwar alongwith dead body though police was present on the spot when he came back from his house. None of the other witnesses admit that Fakruddin was present on the spot when police came there. None of the documents prepared on the spot viz. Ex.P/3 to P/12 bear his signatures. Had he been also an eye witness and present on the spot, he must have narrated incident to the police authorities immediately on the spot and must have signed documents prepared on the spot. Thus, it becomes clear that he was also not present on the spot and has not seen the occurrence. 13 PW16-Gordhan Singh, who was Incharge, Police Station on the day of occurrence, has stated that report Ex.P/1 was lodged before him by Hakam Khan and after preparing Check Ex.P/2 he reached on the spot and prepared site plan Ex.P/3 and other documents. He also admitted that Sadiq and Fakru did not accompany Hakam Khan to the police station at the time of lodging the report. He further admitted that Fakru and Sadiq were not present on the spot when site plan was prepared. He further admitted that though he was aware of the fact that Sadiq and Fakruddin were eye witnesses they did not meet him and he did not try to make their search as he was busy in the investigation. None of the documents Ex.P/3 to Ex.P/12 prepared on the spot bears signature of Sadiq and Fakruddin makes it crystal clear that Sadiq and Fakruddin were neither eye witnesses to the occurrence nor present on the spot because had they been eye witnesses, they must have accompanied Hakam Khan to the police station or must have been present on the spot when police machinery reached on spot. It is admitted case of prosecution that motorcycle of deceased and jeep of the accused crossed tractor of Sadiq and Fakruddin at Siliset triangle. Learned counsel for the appellants argued that place of 14 occurrence is near about 8 Kms. from Siliset triangle and tractor does not run beyond 15 to 20 Kms. per hour, whereas motorcycle and jeep were going fast. In such circumstances there was no occasion for Sadiq and Fakruddin to witness the occurrence. This argument has force as in travelling 8 Kms. tractor will take near about 20 to 30 minutes in reaching on the spot, whereas motorcycle and jeep, if going on high speed would not have taken more than 8 to 10 minutes. Accused-persons must have inflicted blows just after hitting the motorcycle and must have left the place of occurrence immediately then there was no opportunity for the alleged eye witnesses to see the occurrence. Absence of blood on recovered Kulhari from the spot and sarias from accused- persons, contradictions in their police statements and court statements, belies incident narrated by these two witnesses. PW9-Dr.Amar Singh, who was one of the Member of the medical board, examined dead body of Kayum on 13.6.2001 and found two lacerated wounds on the parital region of deceased and found that brain matter had come out and further observed that cause of death was Coma due to brain injury in postmortem report Ex.P/13 which bears his signature. PW16-Gordhan 15 Singh has stated that he prepared site plan Ex.P/3 which shows that deceased Kayum's body was lying under the jeep. Postmortem report Ex.P/13 does not indicate any injury on the body of deceased by kulhari or sariya but indicates that injuries were crush injuries caused by accident. PW8-Girraj, who is an independent witness, has stated in his statement that at 8.00 p.m. he heard noise of accident, reached on the spot and saw that one man was lying under the jeep and accused-Jakir, who is known to him, was present on the spot. Jakir asked him to push the jeep but he refused then Jakir left on foot towards Akbarpur. He did not see accused-Noor Mohd. there. PW7-Mallu Khan has also stated that he saw jeep of Noor Mohd., motorcycle of Kayum and the dead body of Kayum on the spot. Report Ex.P/1 also contains this fact that jeep hit motorcycle of Kayum. In such circumstances it becomes clear that jeep driven by accused-Jakir hit motorcycle of Kayum on account of which Kayum sustained injuries and died. Learned counsel for the appellants placed reliance on 2005 SCC (Cri) 1050, Raja Ram vs. State of Rajasthan in which it was held that if a prosecution 16 witness does not support prosecution case and is not declared hostile and if evidence of such witness is relied upon by the defence, it would bind the prosecution. PW8- Girraj has neither been declared hostile by the prosecution nor cross examined by the defence indicates this fact that defence relies on the theory of accident and this fact is binding on the prosecution which is also supported by other evidence. In such circumstances, it can very well be presumed that Kayum died on account of accident caused by accused Jakir which find support from other prosecution documents also. Absence of other injuries on the body of Kayum by kulhari and saria as narrated by PW2 Sadiq and PW3 Fakruddin probablies that motor accident was given colour of homicidal death. PW3-Fakruddin has stated that at the time of crossing their tractor accused Jakir was driving the jeep. PW8-Girraj has proved that accused Jakir hit Kayum's motorcycle by his jeep and lateron accused-Jakir left the spot on foot. Accused-Jakir in his statement under Section 313 Cr.P.C. admitted that death of Kayum was caused by accident. PW14-Pyarelal has stated that during investigation he gave notice under Section 133 of the Motor Vehicles Act Ex.P/19 to accused-Jakir and in reply to that notice accused-Jakir admitted that on 12.6.2001 17 between 7 to 8 p.m. he was driving Jeep No.RJ-02-C- 1627 which is registered in his name. This jeep has been recovered from the spot and body of Kayum was found under the jeep. Thus, it becomes clear that at the time of accident accused-Jakir was driving the jeep and while driving the jeep rashly and negligently, hit the motorcycle of Kayum and caused his death. Learned counsel for the appellants submitted that original information given at Police Chowki Akbarpur has been suppressed by the prosecution and in such circumstances report Ex.P/1 cannot be treated as first information report. In report Ex.P/1 itself it has been mentioned that information has already been given at police chowki Akbarpur. PW1-Hakam Khan has admitted in his cross examination that while coming from his village towards scene of occurrence, Chowki Akbarpur falls in the way. Though, firstly, he has denied that he went to Chowki Akbarpur before reaching on the spot, but lateron admitted that he stopped at Chowki Akbarpur for 2-3 minutes. He has also mentioned in his police statement Ex.D/1 that they got telephonic information from Police Chowki Akbarpur that accident of Kayum has taken place though he denied this statement. PW2-Sadiq has also denied this fact that after seeing occurrence he 18 went to Police Chowki Akbarpur and made telephonic call from there, but he has mentioned in his police statement Ex.D/2 that he intimated at Kayum's residence on telephone from Police Chowki Akbarpur. PW3-Fakruddin has also stated that he did not go to Police Chowki Akbarpur and Sadiq made telephonic call from Hotel near Petrol Pump but his police statement Ex.D/3 contains this fact that intimation was given at Police Chowki Akbarpur, though he has denied this fact in the Court statement. Statement of witnesses coupled with admission in report Ex.P/1 makes it clear that before lodging report Ex.P/1, intimation was given at Police Chowki Akbarpur. PW16- Gordhan Singh has admitted in his cross examination that after recording Check Ex.P/2 he left for the spot and afterwards went to Police Chowki Akbarpur where he was informed by Incharge Mohan Singh that dead body of Kayum has already been sent to Hospital. He further admitted in his cross examination that Mohan Singh also revealed that he got information about murder of Kayum. Gordhan Singh neither saw Rapat Rojnamcha of Police Chowki Akbarpur nor Rapat Rojnamcha produced before the Court nor Mohan Singh was examined by the prosecution. Thus, it becomes clear that before lodging report Ex.P/1, information regarding commission of crime 19 had already been given at Police Chowki Akbarpur and that information has been suppressed by the prosecution for the reasons best known to them. Learned counsel for the appellants further argued that there is delay in sending FIR to the Court whereas under Section 157 Cr.P.C. report should have been sent to the Court immediately. As per prosecution version report Ex.P/1 was lodged at 12.30 a.m. i.e. mid- night of 12/13.6.2001 whereas Check Ex.P/2 was received by the Court on 14.6.2001 at 11.00 a.m. PW16-Gordhan Singh has simply stated that he cannot say why FIR did not reach to the Magistrate on 13.6.2001 as it was dispatched by Head Constable and he was busy in investigation. Thus, it becomes clear that there is no explanation at all for the delay in sending the FIR to the Court. In 1994 SCC (Cri.) 1390 Meharaj Singh vs. State of U.P., 2001 Cr.L.R.(SC) 170 State of Rajasthan vs. Shri Teja Singh & Ors. and 2007 (4) Crimes 140 (SC) Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra, it was held that where there is delay in sending the FIR to the Court, it can give rise to an inference that the FIR is ante-time. In such 20 circumstances it becomes doubtful that FIR was lodged in mid-night of 12/13.6.2001 and FIR Ex.P/1 looses its significance as information given at Police Chowki Akbarpur has been suppressed. In the light of the above discussion it becomes clear that the prosecution has suppressed first information given at Police Chowki Akbarpur and there is delay of more than 30 hours in sending copy of FIR to the Magistrate and both eye witnesses PW2-Sadiq and PW3-Fakruddin who