1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Arshad Hussain & ors. vs. The State of Rajasthan D.B. Criminal Appeal No.586/2004 under Section 374(2), Cr.P.C. against the judgment dated 18.5.2004 passed by the learned Sessions Judge , Udaipur in Sessions Case No.96/2001. Date of Judgment: April 30th ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN,J. REPORTABLE Mr. Sandeep Mehta for the appellant. Mr. Vishnu Kachhawa,P.P. for the State. Mr. S.S. Rathore for the complainant. ... BY THE COURT( Per Hon'ble Mr.Tatia,J): This appeal has been preferred by the appellants- accused against the judgment and order dated 18.5.2004 passed by the learned Sessions Judge, Udaipur in Sessions Case No.96/2001 by which the trial court convicted the appellant Arshad Hussain under Section 302 IPC and the appellant-accused Mujaffar @ Guddu and Shahjad Hussain 2 under Section 302 read with Section 34 IPC. All the accused persons have been sentenced to undergo the sentence of life imprisonment with fine of Rs.10,000/- to each and in default of payment of fine, to further undergo one year's rigorous imprisonment. As per the prosecution case, on 18.12.2000 at about 11.50 p.m., a written report (Ex.P.1) was submitted by complainant Nizam at General Hospital, Udaipur to the Sub- Inspector of Police Shri Nazir Khan. In said written report, it was alleged that on 18.12.2000 at about 10.00 p.m., the complainant Nizam along with Iqbal, Jamil and Moin were coming from the in-laws' house of Iqbal on two scooters. The complainant Nizam was driving one scooter and the deceased Iqbal was sitting behind him. Behind their scooter, on another scooter, Moin and Jamil were coming. Moin was driving the scooter and Jamil was sitting behind him. When they reached near the house of Ashfak, all of sudden, Shahjad and Mujaffar sons of Ashfak came in front of complainant and stopped them. Iqbal dropped down from the scooter and asked what is there ? Immediately, Shahjad and Mujaffar shouted “Arshad fire” . Arshad who was standing in the Baramda (doli) of his house with the gun, fired thrice. The complainant sat down 3 and the pallets went into the chest and the shoulder of Iqbal who fell down on the spot. Jamil and Moin and the complainant all the three ran away from the spot. It is stated in the written report that there was old enmity between Ashfak and Iqbal and, therefore, by predetermination and with plan, Iqbal was killed and the complainant saw the gun in the hands of Arshad. Thereafter, the complainant Jamil and Moin with the help of Raja @ Siraj took the victim Iqbal to hospital and there he submitted a written report Ex.P.1 as the Sub-Inspector of Police Najir Khan reached there. On this written report,FIR No.523.2000 under Sections 341, 302 read with Section 34, IPC was registered by drawing FIR Ex.P.52. During investigation, on next day at 8 a.m., the seizure memo(Ex.P.17) for the dead body was prepared and his clothes were taken into custody and in his pocket of shirt, one mobile of Samsung Company was found which was also seized and a seizure memo Ex.P.7 was prepared. The clothes-shirt, Baniyan and trousers of the deceased which were having blood stains were also seized and put in a sealed cover and the memo Ex.P.8 was prepared. The dead body was sent for post- mortem vide tehrir Ex.P.5. The post-mortem report Ex.P.42 was obtained. The dead body was X-rayed and X-ray report is 4 Ex.P.31. The Investigating Officer took the photographs of the spot which were exhibited in the trial court as Ex.P.3, Ex.P.6, Ex.P.14, Ex.P.15, Ex.P.24 to Ex.P.27. After post-mortem, the body of the deceased was handed over to cousin brother of deceased vide Ex.P.9. The site inspection report Ex.P.10 was drawn and blood soil and sample soil were also taken and were sealed in cover and a report Ex.P.11 was drawn. From the site, two empty cartridges of 12 bore gun and cartridges paper as well as plastic dats were taken into custody and they were put in a sealed cover and seizure memo Ex.P.12 was prepared,. The statements of the witnesses, Jamil, Nizam and Moin were recorded under Section 161, Cr.P.C. On 19.12.2000, whereas statement of Babu Khan was recorded on 20.12.2000 and the statement of Sajjad Khan was recorded on 21.12.2000. The statements of other witnesses were also recorded. On 21.12.2000, Nijamuddin voluntarily gave his T- shirt and pent which were having blood stains for which seizure memo Ex.P.13 and for the clothes of Moin, which was given by him to the police, seizure memo Ex.P.14 were drawn and in the same way, Jamil gave his clothes which were taken into custody vide Ex.P.16. The above articles were deposited in the Malkhana and 5 ultimately were sent to chemical examination to the FSL from where reports Ex.P.48 and Ex.P.49 were obtained. The accused Shahjad Hussain and Arshad Hussain were arrested on 2.1.2001 vide arrest memo Ex.P.18 and Ex.P.19. They gave information under Section 27, Evidence Act vide Ex.P.44 and Ex.P.47 respectively and in pursuance of above information, recoveries were effected and recovery memos were also prepared. Accused Mujaffar Hussain was arrested on 21.1.2001 and his arrest memo is Ex.P.29. After investigation challan was filed under Sections 341, 302/34 IPC against all the three accused persons who are appellants in his this appeal. The case was committed to the court of Sessions where charges under above sections were framed which were denied by all the accused appellants and they sought trial. In the trial court, prosecution produced 20 witnesses and exhibited documents referred above along with other documents,. The accused persons were examined under Section 313, Cr.P.C.. The accused-appellants denied their involvement in the above crime. The accused-appellants Shahjad Hussain stated that on 17.12.2000 an operation was performed upon 6 his brother Mujaffar Hussain(co-accused) and he was present in the hospital at Mumbai with his brother and he has been wrongly implicated in the above case. Accused Mujaffar Hussain also stated in his statement under Section 313, Cr.P.C. that on 17.12.2000, he was patient admitted in the Shiv Polyclinic & Nursing Home, Mumbai where operation was performed upon him. His brother Shahjad was with him. He was discharged from the hospital on 25.12.2000 and he also has been implicated in the case falsely. Accused Arshad Hussain in his statement stated that he was sitting in the house of his uncle Sharafat Hussain and his two brothers Mujaffar Hussain and Shahjad Hussain were at Mumbai for operation of Mujaffar Hussain. In defence, the accused appellants produced DW-1 Dr. Ganesh V Bhagwat and DW-2 Om Prakash Bhatt. The trial court, after considering the evidence available on record, convicted the accused appellants as mentioned above and sentenced them to undergo sentence as referred above. Hence this appeal has been preferred by all the three accused persons. The learned counsel for the appellants vehemently submitted that the victim himself was a harden criminal and 7 gangster. The prosecution case is that there was old enmity between the accused with Iqbal, then in that situation, it was highly improbable that in the night, the complainant along with deceased with two other persons will pass through appellant's house. It is also submitted that the deceased Iqbal was even put under detention under the provisions of National Security Act and it is submitted that the deceased Iqbal was involved in large number of criminal cases and anti-social activities and he had large number of enemies and, therefore,possibility of his killing by his other enemies cannot be ruled out. It is also submitted that it appears from the prosecution story that the accused had full knowledge that the deceased along with three others went to take dinner in deceased's in-laws house and they will return in the night through this very route and, therefore, all the accused appellants were ready with plan to kill deceased Iqbal whereas there is no evidence available on record to suggest that the appellants-accused could have knowledge that Iqbal along with others or alone was in his in-laws house and would be returning in the night and will be passing through the house of the appellants-accused. It is also submitted that a look at the site report will show that the road was leading 8 down and in view of the above slop, the victim could have been on very lower side than the place from where it is alleged that the gun-shot was fired. In between the victim and the alleged place of incident, there was a boundary wall of about 6 ft. According to the learned counsel for the appellants, the bullets and pallets could have gone straight and in present case even if any gun was fired from inside the house and from Baramda of house then the pallets could have hit only to the boundary wall and not to the victim. The learned counsel for the appellants vehemently submitted that any fire, if is from the 12 bore gun, then it gives out several pallets and as the distance increases the area of spread of pallets also increases. In that situation, if other three persons were with Iqbal then they could not have remained without any pallet injury and could have several injuries of pallets on them, whereas admittedly, except Iqbal, none of the alleged witness Nizam, Jamil and Moin suffered any injury. In view of the above, above three persons are planted witnesses and they were not present at the time of killing of Iqbal, who might have been killed by any other enemy. The presence of Raja @ Siraj, in whose car it is alleged 9 that the victim Iqbal was taken to hospital, is also a planted witness and he was not present at the time of scene of occurrence nor he took the victim to the hospital. The learned counsel for the appellants further submitted that the distance from where gun shot was fired is in fact contradicted by the medical evidence and, therefore, the story of prosecution that the gun was fired by Arshad from his house, is absolutely false. The learned counsel for the appellants also seriously questioned the alleged recovery of the gun at the instance of Arshad, from the room of Arshad hiding under his bed. It is submitted that as per the written report submitted by the complainant Nizam, he saw Arshad with the gun then in that situation, it is highly improbable that he could have went in his house and would have put the gun in his room and thereafter left the house. It is also submitted that the alleged information under Section 27 of the Evidence Act was given by Arshad Hussain on 3.1.2001. Accused Arshad was arrested on 2.1.2001 and the incident is of 18.12.2000. If the accused would have been in his house from 18.12.2000 till 2.1.2001 and 3.1.2001 then he could have been arrested by the police on 18.12.2000 itself or atleast on 19.12.2000 and, therefore, 10 it is clear that accused Arshad cannot be connected with the recovery of gun in pursuance of the alleged information Ex.P.21 dated 3.1.2001. It is also submitted by the learned counsel for the appellant that the Investigating Officer could have recovered empty cartridges and dats if he would have seen the place of occurrence on the same day of incident and he could not have recovered the empty cartridges next day. In fact at the place where it has been shown that empty cartridges and dats were lying, were not the place from where the said recoveries have been effected. According to the learned counsel for the appellants, the evidence produced by the defence is also equally important evidence, as is the evidence of the prosecution. The defence proved by positive and trustworthy evidence that Mujaffar Hussain and Shahjad Hussain were at Mumbai and Mujaffar Hussain was indoor patient in the hospital where operation was performed upon Mujaffar by the doctor and Shahjad was with Mujaffar at Mumbai. Coupled with this positive evidence, that fire was from 12 bore gun then if these two accused would have been present with Iqbal then they also would have either killed or atleast would have injured. Absence of any injury from pallets to Shahjad and Mujjafar clearly shows that 11 they were not present in the city of Udaipur on the date of incident. The learned counsel for the appellants also submitted that there is delay in lodging FIR and further there is delay in sending the FIR to the court and it is relevant in view of the fact that the alleged murder took place virtually in front of the police station which is clear from the site inspection report and this delay is used by the complainant to concoct false story to implicate the appellants. The learned public prosecutor vehemently submitted that the incident took place in the night at about 10.45 p.m. The victim was taken to hospital with the complainant and his two colleagues with the help of their friend Raja @ Siraj and it is normal for the witnesses that they would first try to save life of victim. Nizam, complainant clearly stated that he sat down when gun-shot was fired and he also stated that Moin and Jamil were coming behind him and, therefore, none of the witness could have suffered any injury from gun-shot. So far as enmity between Ashfak and Iqbal is concerned, it has not been denied and cannot be denied. Criminal cases against Iqbal having no relevance in the facts of the case when there is direct evidence of the witnesses whose credibility fully 12 stands with the cross-examination. It is also submitted that in that situation, the written report submitted in the General Hospital, Udaipur itself, where the victim was there in the night at 11.50 p.m., cannot be said to be delayed, rather say, it was a report given with promptness. The report was given to the police in the hospital at 11.50 p.m. Then the site could not have been inspected thoroughly in the night when the incident took place. The gun was recovered from the house of the appellant in pursuance of the information given by the accused and two empty cartridges and plastic dats were recovered and as per the post-mortem report, the victim died because of gun-shot injury. According to the learned public prosecutor, the direct trustworthy evidence cannot be rejected on the basis of some hypothesis as given by the appellants questioning the possibility of having knowledge of the accused of coming of Iqbal from the way on which he was killed. The learned public prosecutor vehemently stated that the evidence produced by the defence is concocted and created which has been considered by the trial court in detail. The trial court observed that there is no evidence produced by the defence that Mujaffar Hussain was identified in the hospital as Mujaffar Hussain because of the reason that from 13 the documents produced by the defence it is clear that no identification mark has been recorded. The defence witness admitted that any person with wrong name may get treatment in the hospital. In view of the above reasons, the defence version that they were all present at the scene of occurrence, was rightly not accepted by the trial court. The learned counsel for the appellants relied upon few judgments in support of his contention that in certain circumstances late lodging of FIR and late sending it to the court may be fatal to the prosecution as held by the Hon'ble Supreme Court in the case of Budh Singh & ors. v. State of U.P.(2006 Cr.L.R. (SC) 564), Raghunath v. State of Haryana & anr. (2003 SCC (Cri.) 326) and Garib Singh & ors. v. State of Punjab (1972 SCC (Cri.) 568). It is also submitted that the evidence of the prosecution is inconsistent with medical evidence or the evidence of ballistic expert then that is the most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.( 1975 SCC(Cri) 571) and in the same case, it has been held that when blackening of two injuries were not explained and interposition of an arm are not supported by FIR then the prosecution case is doubtful. The learned counsel for the 14 appellants with the help of Book “Criminal Investigation, a Practical Textbook for Magistrate, Police Officers and Lawyers, London Sweet and Maxwell Limited”, drawn our attention how the distance can be calculated when it is case of injury by firing shots and submitted that as per the medical jurisprudence blackening range begins where the scorching range ends, it is not affected by wet surface although it can easily be removed by a wet cloth. Blackening with a high power rifle can occur upto about 9 inches and with a revolver or pistol upto about 6 inches, while a shot gun firing 3 drachms of black powder the range is about 12 inches and the exit wound of a close range shot shows greater damage of tissues than the entrance would. According to the learned counsel for the appellants if the shot was fired from the distance as given by the prosecution then the injury could not have been as given in the medical report. We considered the submissions of the learned counsel for the parties and perused the record. First of all we may consider about the presence of witnesses on the spot at the time of incident and just thereafter and then other evidence produced to connect three accused. There is allegation of murder against accused Arshad 15 Hussain, therefore, first his case is considered and thereafter cases of other two accused, Shahjad and Mujaffar Hussain. It appears from the fact that th written report was submitted without any delay by the complainant to the Sub- Inspector of Police who reached at the Government Hospital, Udaipur where the victim was lying. It was mid-night time as the report was submitted at 11.50 p.m. The incident occurred at 10.45 p.m. The difference between the time of incident and giving report is about an hour only. As per the undisputed fact, the police station was not far away from the place of incident and the police could have reached to hospital is probable and the taking of victim to the hospital looking to his condition was certainly the matter of priority and, therefore, instead of going to the police station, if the victim was taken to the hospital, the conduct of complainant and witness who were with victim cannot be doubted. The complainant Nizam (PW-4) in his statement very clearly stated that how the incident occurred. He stated that when they reached near the house of Ashfak, that is house of the father of appellants. Finding some danger if complainant Jamil bend-down or sat, it was natural reaction of the complainant Jamil. PW-4 Nizam, PW-5 Moin and PW-6 Jamil 16 supported the prosecution story fully and since Moin and Jamil were coming behind complainant Nizam and, therefore, if they have not suffered any pallet injury then it is probable and the prosecution case cannot be doubted nor it can be held that because of absence of injury on any of the above three witnesses, their presence on the scene of occurrence can be doubted. The witnesses PW-4 Nizam, PW-5 Moin and PW-6 Jamil, all stated that they lifted victim Iqbal from the spot and in that process, their clothes were also got blood stains and those clothes were given to the police by them and they proved memos of delivery of the clothes to the police as Ex.P.13, Ex.P.14 and Ex.P.16 respectively. They also identified their clothes in the court. These three witnesses were cross-examined thoroughly by the defence but their testimony has not been shattered nor their credibility has been disturbed by the cross-examination. Therefore, the trial court rightly reached to the conclusion that the witnesses PW- 4 Nizam, PW-5 Moin and PW-6 Jamil were present at the time of scene of occurrence. In view of the direct evidence of these three witnesses, the prosecution case cannot be rejected on the basis of hypothetical reasons given by the learned counsel for the appellants that the prosecution failed 17 to produce any evidence that the accused had any knowledge that Iqbal will be coming through the way which is passing in front of the house of the appellants. The complainant Nizam gave report to the police in the General Hospital, Udaipur to the Sub-Inspector of Police which is the event happened just after the time of incident and this also corroborates the continuity of the events backward also and supports presence of Nizam on the spot at the time of incident. The report Ex.P.1 was signed by Moinuddin and Jamil and their presence was recorded by the Sub-Inspector of Police in the written report Ex.P.1 which proved the presence of these two witnesses in the hospital at the time of lodging of FIR and, therefore, this also corroborates the prosecution case of presence of three persons on spot at the time of incident. In view of above evidence, it is absolutely irrelevant how the accused persons got the knowledge or information that Iqbal will be coming from this way where he was killed. Apart from above oral evidence of above three witnesses, PW-7 Raja @ Siraj gave his statement in the trial court that he was passing through the road in question. He found Nizam, Jamil and Moin, who were holding Iqbal victim near the house of Ashfak then he stopped his car where he 18 was told by Nizam that they were coming from in-laws' house of Iqbal after dinner and when they reached near the house of Ashfak, Shahjad and Mujaffar stopped their scooter and shouted for fire and Arshad fired gun-shot from the Baramda of his house which hit Iqbal. He stated that he took Iqbal in his car to the hospital. He stated that he did not stop there for more and stayed only 5 to 7 minutes till Iqbal was taken in the hospital on stretcher where the doctor said that you came late, Iqbal has already died. That is the event followed just after the time of incident and there is no reason to disbelieve the statement of witness PW-7 Raja @ Siraj. The statements of these four witnesses have been corroborated by the statement of PW-19 Nazir Khan to whom written report was given by the complainant Nizam and who stated that at that time Moin and Jamil were also present in the hospital. PW-19 Nazir Khan called the photographer and took photographs of the dead body and prepared the memo Ex.P.17 and took in possession the clothes of the deceased in presence of motbirs and also took mobile phone of the deceased which was recovered from the pocket of the shirt of the deceased. He handed over the dead body of deceased to the cousin brother of deceased vide Ex.P.9. He took the sample of blood soil and 19 recovered two empty cartridges and plastic dats which were exhibited as Ex.P.20, Ex.P.21, Ex.P.22 and Ex.P.27 and he recorded the statements of the witnesses and arrested the accused persons vide memos Ex.P.18, Ex.P.19 and Ex.P.29 and recorded the information given by the accused Arshad as Ex.P.44 and recovered gun (Article-15) and three live cartridges vide memo Ex.P.21 and live cartridges articles 16,17 and 18. PW-20 Dr. Anish Ahmed, Medical Jurist of General Hospital, Udaipur was produced by the prosecution, who stated that, on 19.12.2000 he examined the dead body of the deceased and he opined that the victim died about 12 hours prior to his examination. The victim's body was X-rayed and the victim died because of gun-shot injury, He also gave statement that injuries on the body of deceased were below the right side on various parts including on chest and there were injuries on right knee and other parts of