Umar Mohammad And Ors. vs State Of Rajasthan [Alongwith Criminal ...

2. The First Information Report in relation to the said incident was lodged at about 7.00 a.m. on the same day by Kannu son of Chhote Khan (brother of the deceased Jharmal and Jharu). The distance between the place of occurrence and the police station is said to be about six kilometers. The first informant had to walk to the police station for the purpose of lodging the First Information Report.

It was furthermore alleged that Sahid and Gernal were carrying 12 Bore guns, Mohd. Ishaq Abdul and the rest of the accused were having lathis.

4. On exhortation given by Mohd. Ishaq ordering to shoot down Jharmal and his two brothers, Sahid and Gernal allegedly fired shots from their guns.

5. The informant ran away from the said place and climbed on a nearby hill. He cried for help. Jharmal and Mubin also cried for help. They ran towards a well situated nearby. Accused killed Jharmal and Juhru by hitting them on their heads with lathis and Tachia (a weapon like Farsa). Mubin was also assaulted on his head and other parts of the body. Presuming all the three brothers to be dead the accused ran away. Allegedly the wooden portion of the gun of Sahid fell down at the place of occurrence.

7. It was also alleged that the accused persons took away a sum of Rs.1950/- from the pocket of the 'kurta', Juhru had then been putting on.

8. The learned Sessions Judge, while holding the appellants guilty of commission of the said offences, acquitted Majid, Umrao, Akhe Singh, Nooru, Kehar, Risal from the charge of conspiracy to murder the deceased. Sahid Ahmad, Daud Khan, Mohd. Ishaq, Abdul Salam, Narangi, Namalu, Umar Mohd., Rustam, Alladin and Jamil were also acquitted of the charges leveled against them under Sections 307 and 307/149 IPC. The learned Trial Judge also acquitted Liyaqat from the charges leveled against him.

9. Charges were found to have been proved against Sahid Ahmad, Dau Khan, Mohd. Ishaq, Abdul Salam, Narangi, Jamalu, Umar Mohd., Rustam, Alladin and Jamil under Sections 148, 323/149, 302/149 IPC. Charges under Section 147 were also found to have been proved against Narangi, Jamalu, Umar Mohd., Rustam, Alladin and Jamil. They were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- for commission of the offence under Section 302/149 IPC; one month's rigorous imprisonment under Section 323/149 IPC as also a fine of Rs.200/-. Narangi, Jamalu, Umar Mohd. Rustam, Alladeen and Jameel were also sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.500/- for commission of an offence under Section 148 IPC.

16. The incident, as noticed hereinbefore, took place at the dead of night. Two persons died and one was injured in the incident. The first informant went to Bhullu, PW-6, for getting the report written down. He immediately proceeded to the police station and got the FIR lodged. Twelve persons were named in the FIR.

17. Bhullu, PW-6, however, at a later stage disclosed that all the accused persons entered into a conspiracy for committing the murder. On the basis of the said statement, in all, eighteen persons were put to trial.

21. Autopsy on the body of the Jharmal and Juhru was conducted by Dr. Ram Swaroop Gupta who examined himself as PW-5. We may, at the outset, notice the external injuries found on the dead bodies:

2. Incised would 3"x2,1/2"x bone deep over Rt. Parietal eminence. A flap of soft tissues is separated, 2,1/2" long, attached at its base.

33. The defence had examined six witnesses. DW-1 Hussaina, DW-2 Ihsav, DW-3 Kallu, DW-4 Hafiz Mohd., and DW-5 Alladin, in their depositions alleged that some unknown persons had committed murder of Jharmal and Juhru and caused injuries on the person of Mubin. DW-6, who was a part of the investigating team, alleged that during his investigation it was found that Mohd. Ishaq, Daud and Salam did not commit the offence. Both the courts had categorically held that the testimonies of DW-1 to DW- 5 were not reliable. They were not examined by the police. Their statements had not been recorded under Section 161 Code of Criminal Procedure. They never volunteered to give their statement. No suggestion has been thrown to the prosecution witnesses that they were present at the time of occurrence or they had the occasion to acquire any authentic knowledge in regard to the incident. So far as the statement of DW-6 is concerned, it was based on his opinion. Ishaq has died. Daud has already been acquitted by the High Court.

36. Furthermore, as all the appellants before us were named in the FIR, it was also not necessary to hold a test identification parade.

37. We are, however, of the opinion that in view of the fact that Daud had been given the benefit of doubt, as Jummal stands on the same footing, he is also entitled to similar benefit and should, thus, be accorded benefit of doubt.

39. We, therefore, dismiss Criminal appeal Nos. 382-386 of 2004 [Umar Mohammad and Ors. v. State of Rajasthan] and allow Criminal Appeal No. 387 of 2004 [Jamallu son of Asheen v. State of Rajasthan]. If Jamallu is in custody, he shall be released forthwith unless wanted in connection with any other case.