Case: Abdul Wahid Vs. State Of Rajasthan

2. The facts necessary for the disposal of this case are as follows:The deceased accused Hazi Mukhtiyar Ali was the owner of a building named Hazi Building situated at Chopasni Road, Jodhpur. The deceased and his brother Anil Kumarhad taken one of the shops in the said building for running their business. It is the prosecution case that the deceased and his brother had undertaken certain repairs of the shop without the consent of the landlord because of which there was some dispute between the deceased and his brother on one side and the appellant and his father on the other. It is stated that on 23.8.1991 some repairs were being done on the roof of the said shop by the deceased and at about 4.45 p.m. when the work had been completed the deceased andheard some sound of throwing away of iron trays because of which both of them went to the roof of the shop and found the appellant and his father quarreling with the labourers. It is the case of the prosecution that with the intervention of the deceased andthe accused and his father came down with the deceased and his brother and went to their respective shops. Shortly thereafter, it is alleged that the appellant came to the shop of the deceased asking the deceased andto come to his fathers shop since his father wanted to talk to them. Therefore, the deceased andwent from their shop to the shop of the accused in the company of Mahesh Bahetiand Dalpat Raj BhansaliAt that time it is stated that the father of the appellant was standing inside the shop holding a gun and the appellant said to him that these persons are instigating other tenants not to pay the rent. On hearing the same, it is stated that the said Hazi Mukhtiyar Ali fired a shot aimed at Devendra Raj Singhvi which caused an injury below the neck in the front, consent to which the deceased fell down and died on the spot.3. There is some controversy in regard to the starting of the investigation in this case. According to the material available on record,Hari Singh who was then theof the Sardarpur Police Station received information on 23.8.1991 at about 5 p.m. that there has been a firing at Hazi Motors so after recording the report in the roznamcha of the Police Station, he along with his staff proceeded to the spot. He found the dead body of Devendra Raj Singhvi on the doorsteps of the shop f the accused and made inquiries from the people present there as to how did the incident in question happen and he arrested the appellant and Haji Mukhtiar Ali under section 41(1) of the Cr.P.C. after recording a Fard Ex.He says that he seized the gun used in the crime after getting the same unloaded from Hazi Kukhtiar Ali. He then sent the accused persons to the Police Station. It is at this stage this witness states thatChain Singh, then theof Partap Nagar Police Station arrived with his staff. There is no dispute thatarrived at the spot afterhad come to the spot and had arrested the accused. The defence tried to plead that the investigation had started by recording of the report in the Roznamcha of the Sardarpur Police Station consequent to whichhad arrived at the spot and begun the investigation, all that was done bywill have to be treated as investigation and statements recorded after the complaint was registered at the Police Station. The courts below have rejected this contention. Though in this Court also, learned counsel for the appellant had taken the same contention, we think it not necessary to go into that question but we are recording these facts for some other reason because according to us, the investigation conducted in this case reveals certain disturbing facts.who recorded in Fard Ex.in his evidence specifically states that in the said Fard, no mention of the appellants complicity in the murder was recorded because there was no need for that. The absence of the recording of this fact in the Fard Ex.by itself would not be of much consequence. But what follows thereafter is of some importance.

Court's reasoning:
I do not find any such contradiction in the evidence of the witnesses which may be said to be absolutely fatal to the reliability of the prosecution story." We are not prepared to contribute to this theory of lack of proper tutoring or excessively lengthyas observed by the trial court. Suffice it to say that if only the courts below had taken note of the manner in which this overt act was attributed to the appellant in Ex.and an omission to allege any such overt act to the appellant in the Fard Ex.these contradictions would have much more serious effect on the appreciation of evidence of the said witnesses.9. The High Court though took note of the fact thatin the earlier part of the complaint Ex.did not attribute any overt act to the appellant, brushed aside the same by saying that it is possible that the fact slipped from his mind when he was writing the FIR. It also observed, however, immediately after he handed over the FIR, he recollected and disclosed this fact to Chain Singh that accused Abdul Wahid had made an exhortation to his father. We do not think the High Court has properly appreciated the contents of Ex.nor has it taken into consideration the manner in which this addition came to be made in Ex.about which we have already expressed our opinion. If only the High Court had noticed this fact then, in our opinion, it would not have brushed aside the discrepancies found in the evidence of PWs. 1 and 4 to 7 asdiscrepancies.10. Taking into consideration the entire facts as found on record of this case, we are satisfied that the prosecution has failed to establish the alleged exhortation by the appellant and the courts below have erred in accepting the prosecution case in this regard.