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2007 DIGILAW 1531 (PNJ)

Rashid v. State Of Haryana

2007-08-23

A.N.JINDAL, MEHTAB S.GILL

body2007
Judgment Mehtab S.Gill, J. 1. This is an appeal against the judgment/order dated 28.11.1997/3.12.1997 of the learned Additional Sessions Judge, Faridabad, whereby he convicted Rashid son of Juhar Khan, Jaikam son of Sheri and Shankar son of Roshan under Sections 302/34 IPC and sentenced them to undergo imprisonment for life. Further they were directed to pay a fine of Rs. 2,000/-. In default of payment of fine to further undergo R.I. for six months. 2. The case of the prosecution is unfolded by the statement Ex.PE of Israil given on 29.1.1995 at 3.40 p.m. at Police Post Uttawar to ASI Ram Niwas. 3. Israil stated, that he is resident of Village Ruprake. On 29.1.1995 a cricket match was going on in the ground of Middle School of their village. He along with Amin son of Lakhpat were present in the ground to see the match. At about 2.30 p.m., Rashid came to Sirajuddin, who was sitting on the chabutara near the railing of the Library room, which was situated near the ground of the school. Rashid touched the buttocks of Sirajuddin with his foot. Sirajuddin objected to it. Thereafter, Shankar and Jaikam caught hold of Sirajuddin from his arms and Rashid on saying that his brother Ajmuddin had insulted them yesterday, took out a knife from the pocket of his pant and inflicted four blows on Sirajuddin below the left nipple of his chest, left armpit, back and hip. Sirajuddin fell down and died at the spot. Fijrudeen had also reached there. They tried to catch hold of the accused, but they fled away. 4. On the basis of this statement, FIR Ex.PE/2 was recorded on 29.1.1995 at 4.10 p.m. and the special report was sent to the Ilaqa Magistrate, Palwal on the same day at 6.30 p.m. 5. The prosecution to prove its case brought into the witness box Dr. Smt. Chandrika Malik PW1, Constable Anoj Kumar PW2, Bihari Lal PW3, SI Krishan Chand PW4, Israil PW5, Amin PW6, Salimuddin PW7, Jalaluddin PW8, Fajruddin PW9 and ASI Ram Niwas PW10. 6. Learned counsel for the appellants has argued, that going through the site plan Ex.PB, it comes out that the witnesses to the occurrence were at Points A and B. It is clear that they could not see the occurrence from that place. 6. Learned counsel for the appellants has argued, that going through the site plan Ex.PB, it comes out that the witnesses to the occurrence were at Points A and B. It is clear that they could not see the occurrence from that place. Complainant Israil PW5, in his testimony before the Court, does not say anything regarding appellants Jaikam and Shankar of catching hold of the deceased. Amin PW6 has stated, that no lalkara was raised and the appellants did not have any enmity with the deceased. Statement of Fajruddin PW9 also shows, that he was not present at the place of occurrence at the time, when the occurrence had taken place, but was standing at a distance and he had come to the spot after the occurrence had taken place. He has stated, that he was present at the bus stand before the occurrence had taken place. Even if it is proved, that appellants Jaikam and Shankar were present at the spot, but nothing has come out from the prosecution witnesses, that appellants Jaikam and Shankar participated in the commission of the offence. Appellants are not related to each other. Appellants Jaikam and Shankar were not armed with any weapon of offence. Appellant Rashid could not move properly, as he was suffering from polio. 7. Learned counsel for the State has argued, that the promptness with which the FIR was lodged and the special report reaching the Ilaqa Magistrate, Palwal, itself goes a long way in proving the case of the prosecution. The FSL report Ex.PP shows blood on the clothes of appellant Rashid. Appellant Rashid was not incapacitated due to polio to that extent, that he could not inflict injuries, as he did not inflict just one injury, but four injuries on the person of the deceased, thus showing that his polio disease was minor. Amin PW6 and Fajruddin PW9 have stated, that appellants Jaikam and Shankar caught hold of the deceased. 8. We have heard the learned counsel for the parties and perused the record with their assistance. 9. In FIR Ex.PE/2, Israil PW5 has stated, that appellants Jaikam and Shankar caught hold of deceased Sirajuddin from his arms and it is thereafter, that appellant Rashid gave four blows with knife Ex.PJ near the left nipple, chest, left armpit, back and hip of deceased Sirajuddin. 9. In FIR Ex.PE/2, Israil PW5 has stated, that appellants Jaikam and Shankar caught hold of deceased Sirajuddin from his arms and it is thereafter, that appellant Rashid gave four blows with knife Ex.PJ near the left nipple, chest, left armpit, back and hip of deceased Sirajuddin. In his testimony before the Court, Israil PW5 has stated, that Shankar, Jaikam and Rashid came to the spot. Rashid touched the bottom of Sirajuddin, on which Sirajuddin protested. Rashid retorted, that since his brother Ajmuddin was insulted at the bus stop of the village, now he would be killed. Thereafter, he took out a knife from his pocket and inflicted injuries on Sirajuddin on the left side of his chest near the nipple, left armpit and left side back. 10. Israil PW5 is completely silent to the role played by appellants Jaikam and Shankar. Apart from he is saying, that they were present, the version he had given in FIR Ex.PE/2 is not corroborated in his statement before the Court. 11. In site plan Ex.PB, Points A and B are places where the witnesses stood and saw the occurrence. We have gone through the site plan. Israil PW5 and Amin PW6 could have seen the occurrence from that place. The distance between the place of occurrence and Points A and B (of site plan Ex.PB) is only 35 feet. Fajruddin PW9, the third eye witness to the occurrence, does not seem to be present at that moment of time, when the injuries were being inflicted on the person of Sirajuddin. He (PW9) has stated in his testimony before the Court, that he reached the spot, when Sirajuddin had been hurt. He was present at the bus stand, when he saw some boys running and when he went to the chabutara of the library, which was about 20 yards from his house, he saw Sirajuddin had been hurt at the place of occurrence. By his own testimony, this witness reached the spot after the appellants had run away. 12. We have no hesitation in coming to the conclusion, that appellants Jaikam and Shankar have been falsely implicated. A doubt is created in our mind, as to whether they were party to the murder of Sirajuddin, the benefit of which goes to them. 13. The promptness with which the FIR has been lodged goes a long way in proving the guilt of appellant Rashid. A doubt is created in our mind, as to whether they were party to the murder of Sirajuddin, the benefit of which goes to them. 13. The promptness with which the FIR has been lodged goes a long way in proving the guilt of appellant Rashid. Occurrence had taken place on 29.1.1995 at 2.30 p.m. FIR Ex.PE/2 was recorded at 4.10 p.m. and the special report reached the Ilaqa Magistrate, Palwal at 6.30 p.m. As per the FSL report Ex.PP, the blood found on the clothes of appellant Rashid was human blood. Apart from a question put to one of the witnesses, that appellant Rashid is polio stricken, no evidence has come on record that he was not healthy and a fit youngman. We cannot overlook this fact, that appellant Rashid gave four blows with knife Ex.PJ to the deceased, which proved fatal. If appellant Rashid was polio stricken, then he after giving the first knife blow would have fallen down. Criminal Appeal No. 33-DB of 1998 qua appellant Rashid is dismissed. Criminal Appeal No. 33-DB of 1998 qua appellants Jaikam and Shankar is allowed. Their conviction and sentence is set aside. They are acquitted of the charges framed against them. If in custody, both appellants Jaikam and Shankar are directed to be set free forthwith, if not required in any other case.