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2006 DIGILAW 1019 (RAJ)

Mammal v. State of Rajasthan.

2006-03-29

SHASHI KANT SHARMA, SHIV KUMAR SHARMA

body2006
Judgment Shiv Kumar Sharma, J.-Mammal and his two sons Liyakat and Isab, the appellants herein, were placed on trial before learned Additional Sessions Judge (Fast Track) Kaman, who vide Judgment dated 04.03.2003 convicted and sentenced them under Section 302/34 IPC to suffer imprisonment for life and fine of Rs. 1,000/-with default stipulation. 2. It is the prosecution case that informant Asu (PW. 3) on 25.07.2000 submitted a written report (Ex.P-4) at Police Station, Kaman to the effect that on the said day around 5.30 PM while the informant Hasan Mohammad, Idrish, Hanif , Islam and Isrile (now deceased) were boring at the field of Hanif Sarpanch, accused Mammal, Liyakat, Isab, Syabu, Kasam and Smt. Hosvi came over there Liyakat and Isab were armed with guns, Mammal and Kasam were having Pharsis, Shyabu was having lathi and Hosvi was having lathi and stone. Liyakat opened fire that hit on the right side of the ribs of Isrile. Another fire was opened by Isab, but the informant could not see as to on which place the bullet hit. The informant and his other companions then ran for their life. After the accused left the place of incident, the informant came back and found Isrile dead. On that report a case was registered and investigation commenced. After usual investigation charge-sheet was filed. In due course the case came up for trial. Charge under Section 302/34, IPC was framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 10 witnesses. In the explanation under Section 313, CrPC, the appellants claimed innocence. One witness in defence was examined. Learned trial Judges on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have given our anxious consideration to the rival submissions and with the assistance of learned Counsel we have gone through the evidence on record. 4. Death of Isrile was undeniably homicidal in nature. As per post mortem report (ExP-13) following ante mortem injuries were found on the dead body:-Oval/oblique shape wound of 2.5x1.5xchest cavity deep wound with inverted margins present over the epigastrium in between both costal margins. The depth is through the epigastrium & thorasic cavity. The bullet is taken out from the space between L1 & L2. According to Dr. S.K. Gupta (PW. The depth is through the epigastrium & thorasic cavity. The bullet is taken out from the space between L1 & L2. According to Dr. S.K. Gupta (PW. 9) the cause of death of was fire arm injury leading to injury to R. lung and liver leading to severe hemorrhagic shock and respiratory failure which leads to coma and death. 5. The prosecution case is founded on the testimony of informant Asu (PW. 3), Idrish (PW. 5) Hasan Mohd. (PW. 6) and Mushtaq (PW. 7). In his deposition Asu stated that on 25.07.2000 while he alongwith Isrile, Idrish, Islam, Hanif and Hasan Mohd. was busy in boring at the field of Hanif Sarpanch he heard shouting of Isriles son Mushtaq who was grazing buffaloes at some distance. Isrile then proceeded towards his son. The informant and his companions followed him. As soon as they reached there they saw Liyakat opening fire with Katta (country made gun) at Isrile that hit on the right rib of Isrile as a result of which he died on the spot. At that time Mammal, Kasam, Hoshbi and Sabu were present having arms in their hands and they had encircled Isrile. Finding Isrile dead, the assailants fled away. Isrile was removed to the village on a cot. On the basis of information supplied by Asu, the Investigating Officer drew site plan (ExP-10) of the place of incident. In the cross examination Asu said that Isrile, Idrish and Hasan Mohd, were his real brothers and in the FIR he stated that Liyakat had opened fire at a distance of 5-7 steps. He also said that Isrile immediately fell down after receiving gun shot wound. Testimony of Asu gets corroboration from the evidence of Idrish, Hasan Mohd and Mushtaq. 6. Factual scenario that emerges from the material on record may be summarised thus:-- .(i) In the FIR this fact was not mentioned that Mushtaq was grazing buffaloes and on hearing his voice the informant and his brothers rushed towards Mushtaq. .(ii) According to written report (Ex.P-4) Liyakat came to the place where Isrile was performing boring work and opened fire at Isrile as a result of which he fell down and died. (iii) Inthe site-plan (Ex.P-10) the place of boring was the field of Hanif Sarpanch, which has been marked as X while Isrile was present at place X Liyakat came and opened fire at Isrile. (iii) Inthe site-plan (Ex.P-10) the place of boring was the field of Hanif Sarpanch, which has been marked as X while Isrile was present at place X Liyakat came and opened fire at Isrile. .(iv) No bullet or blood was found at the place X .(v) In the site plan the place of quarrel was marked as A where few drops of blood were found. Some blood was also found at other place which was marked in the site plan as B. Distance between point X and B was 150 ft. Similarly point A was 150 ft away from point B .(vi) Manoj Gupta (PW. 4) and Dinesh Vashistha (PW. 10) the two investigating officers of the case, neither recovered Katta, allegedly used in commission of offence nor seized boring material from the place of incident. (vii) Dr. S.K. Gupta (PW. 9), who performed autopsy on the dead body, in his cross examination deposed that fire was made at a distance of 30-35 ft. whereas according to informant Asu the Katta was fired at a distance of 5-7 steps. .7. Having carefully marshalled the prosecution evidence we are of the opinion that prosecution is not succeeded in making out a convincing case for recording a finding of conviction against the appellants. Following infirmities of the prosecution case created reasonable doubt in our mind:- .(a) According the FIR the place of incident which was the boring pit in the field of Hanif Sarpanch was totally changed at the trial .(b) In the FIR it was stated that while Isrile and his brothers were performing boring work in the field of Hanif Sarpanch, Liyakat came over there and opened fire at Isrile who fell down and died. But at the trial the prosecution witnesses changed the story and said that Isriles son was grazing buffaloes at some distance. On hearing the shouts of Mushtaq Isrile rushed towards Mushtaq where Liyakat opened fire at Isrile. .(c) If Isrile received gun shot injury at the place of boring why blood was not found there. .(d) Prosecution story gets falsified by the testimony of Dr.S.K. Gupta (PW . 9) the autopsy surgeon, who deposed that fire was shot at a distance of 30-35 ft. .(e) The Investigating Officer did not explain as to why the country made gun allegedly used in commission of offence was not recovered and produced in the trial Court. .(d) Prosecution story gets falsified by the testimony of Dr.S.K. Gupta (PW . 9) the autopsy surgeon, who deposed that fire was shot at a distance of 30-35 ft. .(e) The Investigating Officer did not explain as to why the country made gun allegedly used in commission of offence was not recovered and produced in the trial Court. .(f) This fact has also not been explained that as to why the blood was found at two places A and B when Isrile was dead, why his dead body was removed from the place of incident. 8. In view of the aforequoted holes, noted by us, in the prosecution case, this possibility cannot be ruled out that alleged eyewitnesses examined by the prosecution had not seen the incident from their eyes. It appears to us that they were not present at the time of incident. The prosecution in our opinion is not able to establish the charge under Section 302/34, IPC beyond reasonable doubt. The infirmities discussed herein above escaped notice of the learned trial Court. 9. For these reasons, we allow the appeals and set aside the conviction and sentence of the appellants Mammal. Liyakat and Isab under Section 302/34, IPC. We acquit the appellants of the said charge. Appellants Mammal and Isab are on bail, they need not surrender and their bail bonds stand discharged. Appellant Liyakat who is in jail, shall be set at liberty forthwith if not required to be detained in any other case.