[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- (1) CRIMINAL APPEAL No. 879 of 2005 DAUD KHAN V/S STATE Mr. MAHESH BORA, for the appellant / petitioner Mr. V.R. Mehta, PP, for the respondent (2) CRIMINAL APPEAL No. 860 of 2005 JAVED BEIG V/S STATE Mr. RAMESH PUROHIT, for the appellant / petitioner Mr. V.R. Mehta, PP, for the respondent (3) CRIMINAL APPEAL No. 523 of 2006 STATE V/S JAVED BEG & ANR Mr. V.R. Mehta, PP, for the appellant / petitioner Mr. SANJAY MATHUR, for the respondent Date of Judgment : 11.11.2008 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. JUDGMENT ----- Reportable BY THE COURT (PER HON'BLE MR. A.M. KAPADIA, J.) : 1. Three accused persons viz., Daud Khan, Javed Beg and Nitin Sindhi (respectively accused A-1, A-2 & A-3, for [2] short) were charged and tried by the learned Addl. District & Sessions (Fast Track) Camp Nimbahera, District Pratapgarh, in Sessions case No. 103 of 2005 for the offence under Sec. 302, 302/34, 109/302 Indian Penal Code (‘IPC’, for short) and Sec. 3/25 of the Arms Act, on the accusation that accused came to the place of incident with weapons gun and knife with a view to kill deceased Nandsingh and accused A-1 Daud fired one gunshot on the chest of Nandsingh, who on receiving the same succumbed to the injury during treatment. 2. At the end of trial, accused A-1 Daud was found guilty for the offence under Sec.302 IPC and Sec.3/25 of the Arms Act, and he was sentenced to imprisonment for life and fine of Rs.5,000, in default of payment, further simple imprisonment for a period of six months for the offence under Sec.302 IPC and rigorous imprisonment for three years and fine of Rs.500, in default of payment further simple imprisonment for one month under Sec.3/25 of the Arms Act. Accused A-2 Javed was acquitted of the offence under Sec.302 but was convicted for the offence under Sec.3/25 of the Arms Act and sentenced to rigorous imprisonment for three years and fine of Rs.500, in default of payment to [3] suffer further simple imprisonment for a period of one month. Accused A-3 Nitin Sindhi was not found guilty for all the offences, therefore, he was acquitted of the offence with which he was charged. 3. Aggrieved by the impugned judgment and order, accused A-1 and A-2 have respectively filed D.B. Criminal Appeal Nos. 879 of 2005 and 860 of 2005 with the aid of Sec.374 of the Code of Criminal Procedure (‘Code’, for short) challenging the conviction recorded against them whereas State of Rajasthan has filed D.B. Criminal Appeal No. 523 of 2006 with the aid of Sec.378 of the Code, challenging acquittal of accused A-2 for the offence under Sec.302 IPC and acquittal of accused A-3 for all the offences with which he was charged. 4. The prosecution case, as disclosed from the FIR, and unfolded during trial, is that complainant PW1 Gajendra Singh filed a complaint on 19.06.2004 before the Police Station Nimbahera, wherein he has inter-alia stated that at about 7 O’ Clock in the evening, Nitin Sindhi and Narendra Kumawat came to his residence and thereafter his brother Nandsingh alongwith them went on motorcycle. At about 9:30 PM, Narendra Kumawat [4] came to him frightened and told that he, Nitin Singhi and Nandsingh, all the three, were sitting on chairs at Bathra Telecom & Restaurant, where accused A-1 Daud and A-2 Javed came on a motorcycle, Javed A-2 took out a knife and told Nandsingh that today his end has come and meanwhile Daud A-1 fired a gunshot on the chest of Nandsingh. As per report, it was further stated that Narendra Kumawat told him that he and Nitin Sindhi tried to catch hold of accused Daud and Javed but they fled away from the place of occurrence by riding the motorcycle and thereafter Nandsingh was taken to hospital where he was declared dead. 5. On the aforesaid written report, police registered FIR No.374/04 and started investigation. During the course of investigation, inquest was held on the dead body of deceased Nandsingh and the dead body was sent for autopsy. Inspection report of the place of occurrence Ex.P/3 was prepared, blood smeared soil and control soil was taken from the place of occurrence and seized vide Ex.P/4 and the statements of the witnesses were recorded. Panchnama of the dead body was prepared vide Ex.P/5 and the clothes of the deceased were seized vide Ex.P/6. The postmortem of the dead body of the [5] deceased was got conducted and the seized articles were sent to FSL for chemical examination. Accused were arrested and the weapons used in commission of the offence i.e. gun and knife so also the motorcycle recovered. On receipt of the FSL report as well as Postmortem report, as incriminating evidence was found against all the three accused, i.e. A-1 Daud Khan, A-2 Javed Beg and A-3 Nitin Sindhi, chargesheet came to be filed against them before the Court of ACJM, Nimbaheda for the offence under Sec. 302, 302/34, 109/302 IPC and under Sec. 3/25 of the Arms Act. 6. As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the learned ACJM, Nimbaheda committed the case to the Court of Sessions Judge Pratapgarh, and ultimately came to be tried by the court of Addl. District & Sessions Judge (Fast Track) Pratapgarh camp Nimbaheda (‘trial Court’, for short). 7. The trial Court, to whom the case was made over for trial, framed charge against the accused and the charge was read over and explained to the accused to which they pleaded innocence and claimed trial, therefore, they were put to trial in Sessions Case No.103 of 2005. [6] 8. To prove the culpability of the accused, the prosecution has examined as many as 25 witnesses and relied upon their oral testimony. In order to bring home charge levelled against the accused, the prosecution has also produced 65 documents and relied upon the contents of the same. 9. After recording of the evidence of the prosecution witnesses was over, the trial Court recorded further statements of the accused as required under Sec.313 of the Code. In their further statements, accused denied the allegations leveled against them and stated that they are innocent persons and have been falsely implicated in this case. In support of their defence, they have examined five witnesses. 10.On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court has come to the conclusion that homicidal death of deceased Nandsingh is proved as he has died of receiving gunshot injury. It is also held by the trial Court that the gunshot was fired by accused A-1 Daud and accused A-2 Javed though was having a knife, no injury was caused to the deceased. [7] Accused A-1 was held guilty for the offence under Sec.302 IPC and also under Sec.3/25 of the Arms Act whereas accused A-2 was held guilty only for the offence under Sec.3/25 of the Arms Act and accused A- 3 Nitin Sindhi was not found guilty as no overtact was attributed to him for causing murder of deceased Nandsingh. Accordingly, the trial Court convicted accused A-1 & A-2 and sentenced them for the said offences and accused A-3 was acquitted of all the charges, to which a reference is made in earlier paragraph. It is this judgment and order which has given rise to these three appeals being D.B. Criminal Appeal Nos. 879 of 2005 and 860 of 2005 respectively filed by accused A-1 & A-2 whereas State of Rajasthan has filed D.B. Criminal Appeal No. 523 of 2006 challenging the acquittal. 11.As all the three appeals arise out of the same judgment and order, therefore, they are heard together and decided by this common judgment. 12.Mr. Mahesh Boda, learned counsel for accused A-1 while assailing the judgment and order raised following contentions: [8] I. FSL Report falsifies the version of eye witnesses; II. Publication of news by media on the basis of information supplied by Superintendent of Police, falsifies the contents of FIR; III. Blood stains were not recovered from the place where the deceased was murdered; IV. Narendra Kumawat, accused A-3 Nitin Sindhi and deceased Nandsingh came together at the spot of occurrence then why only Nitin Sindhi was made accused whereas Narendra Kumawat was made a prosecution witness; V. Not supporting the case by Nitin is the ground to make him accused; VI. Gun which was allegedly used by accused A-1 was not recovered from him but recovered from accused A-2; VII. FIR not reached the Magistrate promptly as it reached after 37 hrs. of the occurrence; VIII. Postmortem report suggests that track extends wound present in right side to the left side of chest; [9] IX. Fire was made from a distance and not from near as stated by eye witnesses as there is no scorching nor blackening near the wound, therefore eye witnesses are not reliable; X. Change in the place of incident, meaning thereby, entire genesis of the crime is suppressed; XI. Motive is quarrel with respect to cricket match between India and Pakistan, which is not convincing; XII. Past of deceased was shabby, therefore, there were lot of enemies, who might have killed the deceased; XIII. Chhote Khan, who was examined as defence witness No.1 and whose shop is near the place where deceased was found murdered, wrongly not believed; XIV. Three chance witnesses i.e. PW7 Mahaveer Singh, PW 23 Narendra Singh and PW24 Rishiraj Singh, who belong to same caste, cannot be relied upon as there was no occasion for them to be at the place of incident; [10] XV. If the chance witness did not know the accused, TI Parade ought to have been conducted but in the instant case TI Parade has not been conducted then how the witness has identified the accused without knowing their names; XVI. There is no motive for the accused to kill Nandsingh. 13.To buttress the submission that both the two eye witnesses are not the eye witnesses and three chance witnesses are not stating the correct fact, he has also drawn our attention to Modi’s Medical Jurisprudence and submitted that no blackening or scorching on the dead body of deceased was found therefore firearm was not discharged from a distance of less than four feet whereas as per their oral testimony the firearm was discharged from nearby i.e. within the range of four fts., therefore eye witnesses and chance witnesses are unreliable. On the aforesaid premises, it is submitted that the impugned judgment and order of conviction and sentence recorded against accused A-1 for offence under Sec.302 and Sec.3/25 of the Arms Act deserves to be quashed and set aside by [11] allowing this appeal and thereby acquitting him for all the offences with which he was charged. 14. Alternatively, it is submitted by him that if at all the evidence of prosecution witnesses is accepted then at the most it is a case of culpable homicide not amounting to murder punishable under Part II of Sec.304 IPC and as the accused is in jail for more than four years, his conviction may be altered from Sec.302 IPC to Part II of Sec.304 IPC and the sentence undergone by him may be treated as substantive sentence and the accused may be set at liberty. He, therefore, urged to pass appropriate order in this regard. 15.Mr. Ramesh Purohit, learned counsel for accused A-2 adopted the same line of arguments advanced by Mr. Boda, however, alternatively he has submitted that if this Court comes to the conclusion that accused is guilty for the offence under the Arms Act then the sentence of three years awarded to him is harsh and disproportionate to the guilt of the accused. He, therefore, urged to reduce the sentence by awarding the sentence already undergone by him, which is more than six months. He, therefore, urged [12] to pass appropriate order in this regard. 16.Per contra, Mr. V.R. Mehta, learned Public Prosecutor has supported the impugned judgment and order passed by the trial Court so far as recording of conviction and sentence against accused A-1 for the offence under Sec.302 as well as under Sec. 3/25 of the Arms Act against accused A-1 is concerned, however, he submits that acquittal of accused A-2 from offence under Sec. 302 IPC and of accused A-3 from offence under Sec. 302 IPC as well as 3/25 Arms Act is against the evidence on record. Accordingly to him, there is ample evidence against accused A-2 & A-3 to connect them with the commission of murder of Nandsingh and convicting them for the offence under Sec.302/34 of IPC, therefore, appeal filed against their acquittal deserves to be allowed and they are liable to be convicted and sentenced for the offence under Sec.302/34 IPC. He, therefore, urged to allow the appeal and pass order of conviction and sentence against both of them for the offence under Sec. Sec.302 IPC and Sec. 3/25 Arms Act. 17.In reply to the submissions of Mr. V.R. Mehta, Mr. Ramesh Purohit and Mr. Sanjay Mathur, learned counsel appearing for accused A-2 & A-3 have supported the [13] judgment and order as according to them no infirmity has been committed by the trial Court in recording acquittal of accused A-2 for offence under Sec.302 IPC and of accused A-3 for offence under Sec.302 IPC and Sec.3/25 of the Arms Act. They, therefore, urged to dismiss the appeal filed by State of Rajasthan. 18.We have considered the submissions advanced by learned counsel for the parties. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned counsel for the parties with reference to broad and reasonable probabilities of the case. While dealing with the case, this Court has examined the entire evidence on record and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence against accused A-1 and the order of acquittal passed in favour of accused A-2 for offence under Sec.302 IPC and in favour of accused A-3 for all the offences. 19.There is no dispute to the fact that the deceased died a [14] homicidal death. In this connection, the prosecution examined and relied upon the oral testimony of PW14 Dr. Tej Singh Dangi and PW15 Dr. K. Asif, who have jointly performed the postmortem on the dead body of the deceased. They have also issued the postmortem report which is on record as Ex.P/22. 20.On conjoint reading of the statements of both the medical witnesses; i.e. PW14 Dr. Tej Singh Dangi and PW15 Dr. K. Asif, and the postmortem Report Ex.P/22, it is seen that the deceased died because of the bullet injury caused to him on his chest and the mode of death was shock due to injury to the vital organ alongwith c internal hemorrhage. Therefore, there is no manner of doubt that the deceased died a homicidal death. 21.After having held that the deceased died a homicidal death, the next question which is required to be answered by this Court is whether accused A-1 was the author of the injuries caused to the deceased? 22.To prove this fact, the prosecution has relied upon the oral testimony of five eye witnesses as well as PW1 Gajendra Singh, who is author of the FIR. [15] 23.Now adverting to the oral testimony of PW1 Gajendra Singh, who is author of the FIR, we have noticed that he has inter-alia stated before the Court as per the contents of the FIR. He has testified that on 19.06.2004 at about 7 PM accused No.3 and Narendra Kumawat came to him. Nitin asked him about his brother Nandsingh and thereafter Nitin went inside his house. On persuasion by Nitin, his brother went with them. Thereafter, at about 9:30, Narendra came to his house and informed him that he, Nitin Sindhi and Nandsingh were sitting on the Batra Telecom shop, at that time, i.e. about 9:15 PM, accused A- 1 and A-2 came on motorcycles, accused A-2 Javed took out knife and told Nandsingh that it was last day for him and accused A-1 Daud fired from his gun, and thereafter both of them fled away from that place. Narendra also informed him that they took Nandsingh to hospital where he was declared dead. On receiving this information, PW1 Gajendra Singh went to hospital where he saw dead body of his brother. It may be noted that this witness has been cross examined at length but nothing substantial could be brought out from his testimony which would impeach the credibility of his evidence or make his evidence unreliable. [16] On re-appraisal of his evidence, it is assembled that on the fateful day the deceased was taken by accused A-3 and Narendra with them and they were sitting at the telephone booth where accused A-1 and A-2 came with weapons and accused A-2 gave threat whereas accused A-1 fired gunshot on him. It is true that PW1 Gajendra Singh is not an eye witness but his FIR is based on the information supplied by PW11 Narendra Kumawat, who is an eye witness to the incident. His evidence corroborates the contents of FIR Ex.P/1, therefore, there is no reason to discard oral testimony of PW1 Gajendra Singh. 24.The prosecution thereafter has examined and relied upon the oral testimony of PW11 Narendra Kumawat, who is an eye witness and who has inter-alia testified that he went to the shop of Nitin Sindhi and Nitin Sindhi asked him to accompany to the house of Nandsingh but did not disclosed the reason for that. Thereafter, both of them went to Nandsingh’s house on their motorcycles where they met younger brother of Nandsingh outside the house. Nitin went inside the house to talk with Nandsingh and after about 10-15 minutes both Nitin and Nandsingh came out of the house. Nitin told Gajendra that they were going for outing. Nitin gave the pillion seat to Nandsingh on his [17] motorcycle and told him that they had some work and he should reach at his shop where they too would arrive. He went to the shop of Nitin through market and waited for some time, then Nitin and Nandsingh arrived there. Thereafter, they went to the Batra Telecom shop and sat there on chairs. After about 10-15 minutes, Daud and Javed came on motorcycles. Javed took out knife and told Nandsingh that it was his last day and thereafter Daud took out a country-made revolver and fired at Nandsingh and thereafter they fled away towards Chittor side on their motorcycles. The witness tried to chase them on his motorcycle but could not reach them, therefore, he came back and found Nandsingh lying on earth. Thereafter, they took Nandsingh on motorcycle to hospital where the doctor after checking Nandsingh declared dead. He, thereafter, went to the house of Nandsingh and informed his younger brother Gajendra Singh. This witness has been cross examined at length by the learned Advocate for defence but he withstood the test of cross examination but nothing substantial could be brought out from his testimony which would impeach the credibility of his evidence or make his evidence unreliable. On repriasal of his evidence, it is seen that [18] his evidence completely corroborates the evidence of PW1 Gajendra Singh, who has lodged the complaint and the oral testimony of PW11 Narendra Kumawat and PW1 Gajendra Singh corroborates each other, as such there is no reason to discard this piece of evidence. 25.Now we shall advert to the oral evidence of PW19 Surajmal, who is projected as an eye witness and is the owner of shop Bathra Telecom & Restaurant, where accused A-1 fired gun shot on deceased Nandsingh . He has inter-alia testified that on 19.06.2004 at 8 PM, when he was sitting at his shop, Nandsingh, Nitin and Narendra Kumawat came to his shop and were sitting on chairs in the corner of tin-shed. After 15 minutes, A-1 Daud and A-2 Javed came there and went inside the shop to drink water and thereafter they came out of shop towards that corner. Javed was having a knife in his hand and he told Narendra Kumawat that it was the last day for him. While Narendra Kumawar was in the process of standing, A-1 Daud fired gun shot on him and on receiving the gun shot Nandsingh ran away towards the western side and fell down. Thereafter, Daud & Javed flee away on their motorcycle. Nitin and Narendra both chased them. Thereafter, Narendra Kumawat and Nitin took injured Nandsingh to [19] hospital. At the time of incident, one Narendra Singh, Liquor Contractor was also there. His statement is recorded by the Magistrate, which is on record as Ex.P/31. It is also clarified that by an inadvertent mistake he stated that Daud fired on Narendra Kumawat and then he corrected that the gun shot was fired by accused Daud on Nandsingh. He has further testified that Narendra Singh, the liquor contractor was eating food at that time. He has also produced bill Ex.P/32. He has been cross examined at length. On re-appraisal of the evidence, according to us, he successfully withstood the test of cross examination and nothing substantial has been brought out from his testimony which would impeach the credibility of his evidence or make his evidence unreliable. 26.Now, this takes us to examine the oral testimony of PW7 Mahaveer Singh, who is also an eye witness. In his oral testimony, he has inter-alia testified that on the day of incident at 9 PM he had halted at the shop of Batra Telecom as he was exhausted and he ordered for tea. At that time, he and 7-8 other persons were sitting there. After a little while, one motorcycle without number came there on which two persons were riding. They went [20] towards the hotel. One was having a knife and another was having a revolver. Out of the two, one fired on the person who was sitting in the middle of three persons and thereafter both of them ran away. The person at whom the fire was shot, ran towards a juncture of four roads and fell down. The two boys, who were with the boy who had received the injury, shifted the injured to hospital. He has also testified that he could identify both the persons who were having knife and revolver. He has identified both of them in the Court. He further testified that the name of accused Javed was disclosed to him by the owner of the hotel. 27.The prosecution, thereafter, has examined and relied upon one more eye witness PW23 Narendra Singh. He has testified that on the date of incident he was sitting at the hotel for taking his meals. He saw three boys sitting and talking inter-se. At that time, one motorcycle came, two boys alighted from the motorcycle and went inside the hotel. They came out of hotel and went towards the three boys sitting there. Out of the two, one took out a knife and told to one out of the three boys that his end had come and the another boy who had come driving the motorcycle, took out a country made revolver and while the boy was [21] standing, he fired the gun shot on him and thereafter both riding the motorcycle went away towards Chittorgarh. He asked Surajmal, the owner of the hotel about the matter, who told him the names of both the accused. Surajmal also told the name of victim as Nandsingh. 28.The prosecution thereafter examined and relied upon one more eye witness PW24 Rishiraj Singh. He has also testified on the same lines as is testified by PW7 Mahaveer Singh and PW23