Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1437 (RAJ)

Sawai Khan v. State of Rajasthan

2018-07-06

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT MOHAMMAD RAFIQ, J. 1. These two appeals are directed against the common judgment dated 30.07.2011 passed by Additional District and Sessions Judge (Fast Track), Sikar in Sessions Case No.56/2009, whereby and where under, the accused-appellant Sawai Khan has been convicted for offence u/ss.302 IPC and sentenced to life imprisonment with fine of Rs. 5,000, in default whereof to further undergo one year simple imprisonment. He was also convicted for offence u/s.307/34 IPC and sentenced to ten years rigorous imprisonment with fine of Rs. 1,000, in default whereof to further undergo further imprisonment of three months; for offence u/s.353 IPC to undergo two years' simple imprisonment; for offence u/s.3/25 of the Arms Act and sentenced to one year simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo one month's simple imprisonment and also for offence u/s.27 of the Arms Act to undergo three years simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo simple imprisonment of three months. Accused-appellants Vikas @ Khalid and Om Prakash were also convicted for offence u/s.302/34 IPC and sentenced to life imprisonment with fine of Rs. 5,000, in default whereof to further undergo one year simple imprisonment; for offence u/s.307/34 IPC and sentenced to ten years rigorous imprisonment with fine of Rs. 1,000, in default whereof to further undergo further imprisonment of three months and for offence u/s.353 IPC to undergo two years' simple imprisonment. Accused-appellant Vikas @ Khalid was also convicted for offence u/s.3/25 of the Arms Act and sentenced to one year simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo one month's simple imprisonment and also for offence u/s.27 of the Arms Act to undergo three years simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo simple imprisonment of three months. All the sentenced were ordered to run concurrently. 2. Facts giving rise to this appeal are that Mehmood Hasan, Assistant Sub-Inspector submitted a written report to SHO Kotwali, Fatehpur on 26.3.2009 alleging that on 26th March, 2009 at about 8.00 pm, he and Constables Harish Chandra, Kalyan Singh, Sohan Lal and driver Pradeep Kumar were performing the patrolling duties in Government vehicle No. RJ 23 4A 2101. 2. Facts giving rise to this appeal are that Mehmood Hasan, Assistant Sub-Inspector submitted a written report to SHO Kotwali, Fatehpur on 26.3.2009 alleging that on 26th March, 2009 at about 8.00 pm, he and Constables Harish Chandra, Kalyan Singh, Sohan Lal and driver Pradeep Kumar were performing the patrolling duties in Government vehicle No. RJ 23 4A 2101. When they reached near Chhatriya Bus Stand of Tehsil Fatehpur, he received a wireless message from Circle Officer, Fatehpur that he tried to stop one silver colour Indica car without number plate in which three persons were sitting, but instead of stopping, the person sitting on the front seat opened fire at him. Circle Officer asked to send a vehicle from the Police Station to stop it. On receiving such message, Mehmood Hasan, ASI along with other members of the patrolling party reached near Do Janti Balaji temple. Thereafter, he received another information on wireless message that said vehicle was now going towards Ratangarh. Mehmood Hasan turned his jeep in that direction. In between, he talked to the Circle Officer as also the SHO of the Police Station, Fatehpur. When their jeep reached near Viramsar on Ratangarh Mod, they received the telephonic message that the said Indica car was now returning back from Ratangarh railway crossing. The vehicle was located near Village Tidiasar, but its driver took the car off the road on 'kachcha' route. Three persons came out of the car and tried to run away. One of accused was caught hold of by the Constable Harish Chandra. He then shouted at another accused named Sawai Khan asking him to open fire. Sawai Khan tried a shot, which hit Harish Chandra, Constable on his thigh. Another accused opened fire at the informant (Mehmood Hasan). Taking advantage of this situation and the darkness, all the three accused ran away in the agricultural fields. He could identify these accused. Informant then stated that he took the Constable Harish to Dhanuka Government Hospital, Fatehpur for treatment. The Medical Officer however declared him brought dead. Information about the incident was given to the Senior Officer. 3. The FIR on the basis of aforesaid written report was registered for offence under Sections 302, 332, 353, 307/34 IPC and investigation commenced. The police after conclusion of the investigation filed charge sheet against the accused-appellants for the aforesaid offences. The Medical Officer however declared him brought dead. Information about the incident was given to the Senior Officer. 3. The FIR on the basis of aforesaid written report was registered for offence under Sections 302, 332, 353, 307/34 IPC and investigation commenced. The police after conclusion of the investigation filed charge sheet against the accused-appellants for the aforesaid offences. The learned trial court framed the charges for offence u/ss. 302, 307/34, 353 of IPC and Section 3/25 and 27 of the Arms Act against Sawai Khan u/ss. 302/34, 307/34, 353 of IPC and Section 27 of Arms Act against Om Prakash and u/ss.302/34, 307/34, 353 of IPC and Section 3/25 and 27 of the Arms Act against the accused-appellant Vikas @ Khalid. The accused denied the charges and claimed to be tried. The prosecution produced 34 witnesses and exhibited 110 documents. Defence did not produce any evidence. Accused in their statement u/s.313 Cr.P.C. alleged false implication. The learned trial court on conclusion of the trial, convicted and sentenced the accused-appellants as stated above. Hence these appeals. 4. We have heard Shri Rajendra Singh Tanwar for accused appellant Om Prakash, Smt. Sumati Bishnoi for accused-appellant Vikas @ Khalid and Ms. Rajesh Kandwal for accused-appellant Sawai Khan as well as Shri Rajendra Singh Raghav, learned Public Prosecutor for the State. 5. Learned counsel for the accused-appellants have argued that learned trial court has wrongly appreciated the law, evidence and material available on record. Entire evidence of the prosecution does not prove the guilt of the appellant beyond reasonable doubt. 6. It is contended that the learned trial court committed serious illegality in not sending the bullet and cartridge to FSL for examination. It does not prove that from which gun the said bullet was fired, which was inflicted to Harish Chandra due to which Harish Chandra died. Harish Chandra might have as well died due to firing by police. 7. It is contended that it has been nowhere written in the FIR that one of the accused person was caught but in the statements of police personnel, all that is stated is that one person was caught by police who shouted 'Sawai Singh fire' whereupon one person fired on the thigh of the Harish Chandra. This creates serious doubt about the accused who inflicted that injury. 8. This creates serious doubt about the accused who inflicted that injury. 8. Learned counsel argued that there are material contradictions in the statements of witnesses which were recorded by the police and statement before the court, which creates serious doubts about involvement of the appellants in the crime. The witnesses have developed their statements from the statements which were recorded before the police. 9. It is submitted that the learned trial court committed serious illegality in not appreciating that not a single witness has stated name of any accused, who was caught, whether he ran away or not, nowhere it was stated by them in their statements. On the contrary, they have stated that the accused persons were caught from the hut situated in the field of Sumer Singh. While on one hand, the police has stated that they can identify the accused persons but on the other hand, did not state anything that which accused was caught by them when police had intercepted the car. Learned counsel contended that the learned trial court committed serious illegality in not considering that the witnesses who saw the Indica car running on road, following by the police stated that the said car was Indica and its colour was silver. However, it was about 9:00 PM at night and there was darkness and how they came to know about the colour and make of the car in darkness, in not believable. 10. It is submitted that the learned trial court committed serious illegality in not considering that the police had prepared description memo of place of recovery (Ex.P9), whereby the pistol has been recovered from one of the accused persons. However, name of the accused person has not been written in the said memo. It creates serious doubt on the prosecution story that entire story is false and the accused appellant has been falsely implicated in the case. 11. It is contended that the learned trial court committed serious illegality in not considering that in the night how could the police follow the accused persons on the basis of foot prints in the field. There may be foot prints of many persons there. Searching of accused persons on the basis of foot prints by the police is not believable. Since there was darkness on the place of occurrence therefore how the accused appellants were identified by police personnel, is not believable. There may be foot prints of many persons there. Searching of accused persons on the basis of foot prints by the police is not believable. Since there was darkness on the place of occurrence therefore how the accused appellants were identified by police personnel, is not believable. No where position of the police jeep and car has been shown in the map so that it can be said that in the light of car and jeep the faces of the accused persons were seen and identified. The learned trial court committed serious illegality in not considering that the police did not recover the cartridge of the bullet which allegedly fired on the Circle Officer by the accused. 12. Learned counsel further submitted that the accused appellants have no motive to commit any crime. They have been falsely implicated in the present case. 13. Learned counsel for accused-appellant Om Prakash has contended that nothing has been recovered from the appellant. He did not even fire at any person to kill. Therefore no offence under Sections 302/34 and 307/34 is made out against him. It is argued that no overt act has been attributed to accused-appellant namely; Om Prakash and Vikas @ Khalid. Allegation of opening fire at the deceased has been made only against accused-appellant Sawai Khan. Even this fire was shot by him at the deceased Harish Chandra to save himself and his companion, who was caught by deceased. The fire was therefore opened in exercise of right of private defence. The manner in which the gun shot was fired at the deceased indicated that intention of appellant was never to kill him, but rather to free from his clutches, which is evident from the fact that the shot was fired on a non-vital part of body namely; the thigh of the deceased. Besides, as per the allegation of prosecution, though the country made katta has been recovered at the instance of accused Sawai Khan vide memo Ex.P10 and one country made pistol from accused Vikas @ Khalid vide memo Ex.P11, but their intention would not be to kill the deceased or any other person, otherwise there would have been many more casualties. The fact that accused did not repeat and opened fire only once, not only indicate that they did not have any intention to commit murder, but also did not take undue advantage of the situation. The fact that accused did not repeat and opened fire only once, not only indicate that they did not have any intention to commit murder, but also did not take undue advantage of the situation. The incident having happened suddenly at the spur of the moment and accused having not repeated the injury, not caused the injury on any vital part of the body, their case would fall in exception 4 to Section 300 IPC. Since only one of them namely; Sawai Khan had opened fire, he can at the maximum be convicted for offence of culpable homicide not amounting to murder falling u/s.304 Part-I of IPC. The other accused namely; Om Prakash and Vikas @ Khalid, who did not share the intention with Sawai Khan, deserves to be acquitted. 14. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and submitted that the accused-appellants were habitual offenders inasmuch as they had been habitually looting the vehicles and to achieve that object, they would easily murder the driver of the vehicle. 15. It is contended that prior to that incident, the accused had looted the Indica car and committed murder of Rameshwar, the driver of this Indica car. This Indica car was taken by them on hire basis. Rameshwar was driving that car in the morning on 25.3.2009. Accused hired the Indica car on 25th March, 2009 from Nagaur Taxi Stand. They committed the murder of Rameshwar. It was thereafter that the ASI, Mehmood Hasan received a wireless message from Circle Officer, Fatehpur that when he tried to stop this silver colour Indica car without number plate in which three persons were sitting and when he gave signal to stop, the person sitting on front seat opened fire at him. Reference is made to the FIR No.134/09 and the charge sheet filed in the case of Rameshwar (Ex.P77). This FIR was lodged by Prakash Ram on 25.3.2009 with Police Station Nagaur. He has stated in the FIR that he had purchased a brand new car on 20th March, 2009, the number plate of which was yet to be fitted. His brother Rameshwar was driving that vehicle in the morning of 25th March, 2009. His brother Rameshwar had parked the car at the Taxi Stand situated at Government Hospital, Nagaur. Two persons came there at about 10.00-10.15 am. They hired the car upto Deedwana. They started from there. His brother Rameshwar was driving that vehicle in the morning of 25th March, 2009. His brother Rameshwar had parked the car at the Taxi Stand situated at Government Hospital, Nagaur. Two persons came there at about 10.00-10.15 am. They hired the car upto Deedwana. They started from there. Informant's brother Ramniwas had a talk with Rameshwar on mobile at 12.16 am, that time, he informed his brother that accused had beaten him and forcibly took him with the car. Then the call was disconnected. Thereafter, he continuously tried to connect the telephone and enquire about his brother. The chesis number and engine number of the vehicle were given. The police in that case filed charge sheet for offence u/s.394 and 342 IPC against the accused Sawai Khan, Vinod @ Khalid and Om Prakash. It is submitted that the aforesaid case no.65/09 is pending trial in the Court of Additional Sessions Judge No.2, Nagaur, which fact is proved by Shankar Singh (PW30), the then S.I. Police Station Parbatsar, District Nagaur. 16. Learned Public Prosecutor argued that as per the allegations in the present case, accused after opening fire at the police party in which one of the Constable died, taking advantage of the darkness fled away from there. The teams constituted under the leadership of S.P. Sikar and S.P. Churu followed them in the night along the marks of their foot steps. They were finally traced in a hut located in the jungle of Village Malpura around 9.00 am. When the warning was given to them to surrender, they did not surrender and instead, opened fire at the police party. Reference is made to the FIR No.65/09 for offence u/ss.353, 332, 307, 120B IPC and Section 3/25 and 3/27 of the Arms Act was lodged regarding that incident which is Ex.P65 by Jauhar Lal, SI, Police Station Ratangarh. Police in defence had to also open two rounds of fire by 38 bore revolver and one round by 3x3 service rifle. In total about 8-10 rounds of fire were opened by the police. When they were completely encircled all around, the accused then surrendered. Charge sheet against the accused in that case was filed and the matter is pending trial in the Court of Additional Sessions Judge, Ratangarh, Churu as Sessions Case No.1/2010. 17. In total about 8-10 rounds of fire were opened by the police. When they were completely encircled all around, the accused then surrendered. Charge sheet against the accused in that case was filed and the matter is pending trial in the Court of Additional Sessions Judge, Ratangarh, Churu as Sessions Case No.1/2010. 17. Learned Public Prosecutor has made reference to yet another FIR No.59/09 (Ex.P67) lodged by one Gunwant Kumar, the owner cum driver of Van no.RJ01-T-1213, whose vehicle was hired by the accused from Diggi Stand, Ajmer to go to Makrana and looted the vehicle near Parbatsar after tieing him and his companion Roop Kumar with tree by ropes. Learned Public Prosecutor has also referred to the certified copy of the judgment dated 3.4.2010 in which the accused-appellants along with three other accused were acquitted on allegation of looting the D.I. MAX Jeep No.RJ 14 U 1202. On similar facts, the vehicle was hired by the accused from bus stand Narena and the driver of the vehicle Hamid was killed and the vehicle was looted. Since it was a case of circumstantial evidence, the Court of Additional Sessions Judge (Fast Track), Parbarsar and the attesting witnesses did not support the case and the accused could secure acquittal, but that case too proves that the all the accused-appellants are members of the same gang and are habitual in committing similar offences together. 18. Apart from what has been argued by learned Public Prosecutor in the present case, we find that the manner in which the incident has taken place has been proved by cogent and reliable evidence by the prosecution. Pradeep Kumar (PW1) has stated that when the Indica car of the accused was taken on the kachcha road, three persons sitting in it, tried to ran away. One of them was caught hold by Constable, Harish Chandra who cried for help and asked his fellow accused to open fire, which hit him. Similar statement has been made by Kalyan Singh (PW2), who has stated that when Harish Chandra caught hold of one of the three accused, he cried for help and asked Sawai Khan to open fire and the fire opened by Sawai Khan hit Harish Chandra on his left thigh. Similar statement has been made by Kalyan Singh (PW2), who has stated that when Harish Chandra caught hold of one of the three accused, he cried for help and asked Sawai Khan to open fire and the fire opened by Sawai Khan hit Harish Chandra on his left thigh. Sohan Lal (PW19), Constable of Police Station Kotwali Fatehpur has also given similar statement that fire shot by Sawai Khan hit Harish Kumar on his left thigh and thereafter another accused opened fire at Mehmood Hasan, which he ducked. Narendra Singh the then C.O., who was patrolling and first saw the Indica car without number plate at Bawri Gate has appeared as PW24 and stated that when he gave signal to the car to halt, instead of stopping, the car speeded up. And when they chased the car, the accused sitting on the front seat opened fire at him. He identified all the three accused in the test identification parade Ex.P40 to 42 and also in the Court. Apart from Narendra Singh (PW24), these accused have been identified by Mehmood Hasan and Sohan Lal in test identification parade (Ex.P40 to 42). Raghuveer Prasad (PW3) was a vegetable vendor at Bawri Gate, Fatehpur. On the fateful night, he saw an Indica car without number, which was going towards Ramgarh Mod. The vehicle of Deputy Superintendent of Police was chasing that vehicle. When the vehicle of Deputy Superintendent of Police overtook that Indica car, a person, who was sitting in the car, opened fire. Mehmood Hasan (PW5) has also stated that Constable Harish caught hold of one of the accused, who asked Sawai Khan to fire who then shot at Harish Chandra on his thigh. Thereafter, another person opened fire at him, which he ducked. The accused ran away from there taking advantage of the darkness. Laxman Singh (PW8), Nemi Chand (PW10) and Rajendra @ Raju (PW21) are the persons present near the shop of Raghuveer Prasad at Bawri Gate, Fatehpur. They have also substantiated the above fact. Rajendra @ Raju (PW21), who was sitting at Bawri Gate, Fatehpur along with Laxman and Nemi Chand has also given similar statement that fire was opened by the accused at the police party. They have also substantiated the above fact. Rajendra @ Raju (PW21), who was sitting at Bawri Gate, Fatehpur along with Laxman and Nemi Chand has also given similar statement that fire was opened by the accused at the police party. Mehmood Hasan was also attesting witness to the recovery of the country made 'katta' at the instance of accused-appellant Sawai Khan vide memo Ex.P10 country made pistol at the instance of accused Vikas @ Khalid vide memo Ex.P11. Seizure memo of the Indica Car without number plate is Ex.P25 and the arrest memo of the accused-appellants Sawai Khan, Vikas @ Khalid and Om Prakash are Ex.P28, 29 and 30 respectively. 19. Bhanwar Singh (PW9) and Sumer Singh (PW11) have proved the incident of fire opened by the accused from the hut at the police party and the return firing by the police in the hut of the agriculture field of Sumer Singh in village Malpura, Tehsil Ratangarh. 20. Mukut Singh (PW20) has stated that he lifted the chance finger prints on the glass of door of the driver side of the Indica car and after developing them, they were marked as A and B. He also lifted two chance finger prints on the left glass of rear door of car, which were developed and marked as C and D. Thereafter, he also lifted one chance finger print on the rear window glass of the car, which was developed and marked as 'E'. The memo (Ex.P43) was prepared by him for lifting these chance prints. Rajendra Sharma (PW22) was the photographer of the Bureau. He has corroborated this fact that photography of five chance finger prints was done by him. The photographs were Ex.P44 to 48 and specimen prints were Ex.P49 to Ex.P53. The memo of lifting the finger prints was prepared as Ex.P43, the attesting witnesses to which were Sohan Lal and Sunda Ram, who have both supported the prosecution case. The report of the office of the Director Finger Print Bureau, Rajasthan, Jaipur (Ex.P82) proves that the change print photographs marked as A and B (of Sawai Khan) are similar and identical with the specimen right index finger and right middle finger print photographs marked as S4A and S4B respectively of Sawai Khan. The report of the office of the Director Finger Print Bureau, Rajasthan, Jaipur (Ex.P82) proves that the change print photographs marked as A and B (of Sawai Khan) are similar and identical with the specimen right index finger and right middle finger print photographs marked as S4A and S4B respectively of Sawai Khan. Similarly, the said report Ex.P82 proves that the chance print photograph marked as C & D (of Vikas Kumar) is similar and identical with the specimen right index finger print and right middle finger print photographs respectively marked as S1A and S1B respectively of Vikas Kumar. Similarly also, the chance print photograph marked E (of Om Prakash @ Prakash) is similar and identical with the specimen right middle finger print photograph marked S1 of Om Prakash @ Prakash. 21. Balbir Singh (PW18) has stated that he developed the right and left foot impression of two persons, who were wearing shoes and of one person of left and right foot, who was bare foot and that he developed them then and there and handed over to SHO Fatehpur Kotwali. Memos thereof are Ex.P19, 20 and 21. In cross examination, he has stated that he has passed a diploma course for developing the foot moulds. Seizure memo of foot mould sample of accused Sawai Khan, Vikas Kumar @ Khalid and Om Prakash were prepared vide memos Ex.P37 marked as F-I, Ex.P38 marked as F-II and Ex.P39 marked as F-III. The attesting witnesses Banwari Lal (PW25) and Jagdish Prasad have supported these memos. Bare foot mould marked as F-I was found similar with the specimen right foot impression of Sawai Khan. Similarly also, with left foot impression which is evident from the Finger Print Bureau, Rajasthan, Jaipur (Ex.P81). The FSL report (Ex.P83) proves that various packets namely; J, K, F-II, F-III, F-IV and F-V were received by the laboratory properly sealed and impression of the seal tallied with the specimen. Packet F-II contained two plaster of paris moulds of right and left footwear sole impressions of accused Vikas @ Khalid. The FSL report (Ex.P83) proves that various packets namely; J, K, F-II, F-III, F-IV and F-V were received by the laboratory properly sealed and impression of the seal tallied with the specimen. Packet F-II contained two plaster of paris moulds of right and left footwear sole impressions of accused Vikas @ Khalid. According to the aforesaid report, the right footwear sole impression reproduced in the mould exhibit K/R tallied with the right footwear sole impression reproduced in the mould exhibit F-II/R and the sole of the shoe Exhibit F-IV/R. Similarly, footwear sole impression reproduced in the mould exhibit K/L tallied with the left footwear sole impression reproduced in the mould Exhibit F-II/L and the sole of the shoe Ex.F-IV/L. The right footwear sole impression of accused Om Prakash reproduced in mould exhibit J/K tallied with the right footwear sole impression reproduced in the mould exhibit F-III/R and the sole of the shoe exhibit F-V/R. The left footwear sole impression reproduced in the mould Ex.J/L tallied with the left footwear sole impression reproduced in the mould exhibit F-III/L and the sole of the shoes exhibit F-V/L. 22. Banwari Lal (PW25), the SDM has stated that on 30.3.2009, he was posted as Tehsildar, Laxmangarh and that on receiving requisition from Police Station Laxmangarh, the foot prints of the accused Om Prakash, Vikas Kumar @ Khalid and Sawai Khan were obtained in his presence and Constable Balbeer and one more Constable was also present there. While Sawai Khan gave the foot prints bare foot, the other two accused namely; Vikas Kumar @ Khalid and Om Prakash gave foot prints with shoes. The three different memos are exhibited as Ex.P37, 38 and 39 respectively. 23. Dr. Mansha Ram (PW32), is the member of the Board who conducted postmortem of deceased has proved the postmortem report (Ex.P86), according to which the cause of death of Harish Chandra was hypovolumic shock due to excessive bleeding. 24. Priyanka Yadav (PW34), the Senior Scientist Assistant of the Mobile Forensic Unit, Sikar has stated that she inspected the site of incident and took photographs (Ex.P98 to P109). She prepared the inspection report (Ex.P110) according to which the door of the driver side of the Indica car was opened. There was blood spared at some distance of the car. There was a bag lying on the seat near the driver seat, the clothes therein also had blood stains. She prepared the inspection report (Ex.P110) according to which the door of the driver side of the Indica car was opened. There was blood spared at some distance of the car. There was a bag lying on the seat near the driver seat, the clothes therein also had blood stains. The blood was spared at different places inside the car. The FSL report Ex.P80 indicated that the pants, shirt, belt, socks, shoes, 'baniyan' of deceased contained human blood. 25. In view of above analysis of evidence, the guilt of the accused-appellants has rightly been held proved by cogent and reliable evidence and the learned trial court was perfectly justified in convicting the accused-appellants for the alleged offences vide the impugned judgment. There being no merit, the present appeals are hereby dismissed. 26. Office to place a copy of this judgment in connected appeal.