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2018 DIGILAW 1680 (RAJ)

Mustaq Son of Iliyas v. State of Rajasthan

2018-08-08

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
ORDER : MOHAMMAD RAFIQ, J. All these appeals are directed against the common judgment dated 01.10.2014 passed by Additional District and Sessions Judge, Kaman, District Bharatpur in Sessions Case No.11/2012, whereby the accused-appellants have been convicted and sentenced as under: “Aarif- Under Section 302/120-B IPC – life imprisonment and a fine of Rs. 2000/-; in default whereof to undergo six months rigorous imprisonment. Mustaq - Under Section 302/34 IPC – life imprisonment with a fine of Rs. 2000/-; in default whereof to undergo six months rigorous imprisonment. Under Section 120-B IPC – life imprisonment with a fine of Rs. 2000/-; in default whereof to undergo six months imprisonment. Under Section 201 IPC – two years rigorous imprisonment with a fine of Rs. 1000/-; in default whereof to undergo 4 months rigorous imprisonment. Ali Sher & Ummed @ Rahul - Under Section 302 IPC – life imprisonment with a fine of Rs. 2000/- each; in default whereof to undergo six months rigorous imprisonment. Under Section 120-B IPC – life imprisonment with a fine of Rs. 2000/- each; in default whereof to undergo six months imprisonment. Under Section 201 IPC – two years rigorous imprisonment with a fine of Rs. 1000/- each; in default whereof to undergo 4 months rigorous imprisonment. All the sentence awarded to be accused appellants were ordered to run concurrently.” The brief facts of the case are that a complaint came to the filed by one Aarif son of Aas Mohammad on 02.10.2010 at 6:00 in the morning that near Thekdawas Mod, a person was found dead near the road. That person was identified by one Amna wife of Mazid, who said that the deceased was husband of Bilang and she called up villagers. 10-15 person arrived at the site and one written report was given to SHO Police Station, Gopalgarh that the deceased was murdered by some unknown persons. On this report, the police registered FIR No.117/2010 for the offence under Section 302 and 201 IPC. During the course of investigation, the accused persons were arrested and the investigation agency filed charge sheet before the court below under Sections 302, 201 & 120-B IPC against the accused persons. However, investigation was kept pending under Section 173(8) Cr.P.C. against one accused Aarif. During the course of investigation, the accused persons were arrested and the investigation agency filed charge sheet before the court below under Sections 302, 201 & 120-B IPC against the accused persons. However, investigation was kept pending under Section 173(8) Cr.P.C. against one accused Aarif. The learned Judicial Magistrate committed the case to the learned Additional District Judge-I, Deeg, Bharatpur (Rajasthan), charges were framed against the accused persons Ali Sher, Mustaq and Ummed under Sections 120-B, 302, 302/34 and 201 IPC. As many as 24 witnesses were examined and 38 documents were exhibited by the prosecution in support of its case. In the meanwhile, supplementary charge sheet came to be filed against the accused Aarif under Sections 302, 120-B IPC and he was charged under Sections 302, 120-B, IPC. The accused were also examined under Section 313 Cr.P.C. The court below concluded the trial and vide its judgment dated 01.10.2014 convicted the accused-appellants in the manner as stated above. Hence these appeals. Ms. Gayatri Rathore and Shri Vinod Sharma, learned counsel for the accused-appellants have argued that the impugned judgment has been passed in a hasty manner without appreciating oral as well as documentary evidence available on record thereby causing serious miscarriage of justice. The learned court below has failed to appreciate the fact that as per the evidence on record, no overt act has been attributed to accused-appellants and as such, there is no evidence for commission of the said offence by the appellant has come on record. Learned counsel argued that it is a well settled principle of law that an act is criminal only if it is done with a knowledge or intention of being criminal. In the instant case, all these ingredients are missing. The learned court below has erred in not appreciating the fact that the Section 120-B IPC is a contract only when there is an agreement to do a particular act. Association or relation to lead a conspiracy is not enough to establish the intention to kill. Learned counsel submits that the learned court below has not appreciated the fact that the chemical analyst has not been produced for examination. The testimony of Sahun (PW1) i.e. Driver is not creditable because the owner of the vehicle has not been examined so as to establish that Sahun was driving his vehicle at the relevant point of time and that he was his employee. The testimony of Sahun (PW1) i.e. Driver is not creditable because the owner of the vehicle has not been examined so as to establish that Sahun was driving his vehicle at the relevant point of time and that he was his employee. Even, the vehicle has not been confiscated by the investigation agency. Only on the testimony of this witness, which was been recorded 52 days after the incident, the learned court below has convicted the accused appellant. Hence, it is not sustainable in the eye in law. It is submitted that trial court failed to appreciate the statement of Dr. Mridul Sharma (PW14), who clearly says that when organ phosphorus goes inside the body, there is a vomiting, which is missing in the instant case. Thus, only on the basis of circumstantial evidence and concocted story made by one Sahun, the conviction of the appellant is not sustainable. It is therefore prayed that the appeals are allowed and the accused-appellants be acquitted of the charges. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and supported the impugned judgment. We have given our anxious consideration to the rival submissions and perused the material on record. Admittedly, the incident had taken place on 2nd October, 2010 and it is on that very day Aarif son of deceased Aas Mohammad has made a written report to Police Station on being informed by the villagers that dead body of his father was lying in the agriculture field near the road. There are in this case two witnesses, who have been heavily relied by the learned trial court to convict the accused-appellants, who are Sahun (PW7) and Gopal (PW4). Suhan has stated in his court statement as PW7 that he was driver of the vehicle no.HR 51 Z 2578 and that on 1.10.2010 around 9.00 am, Umed, Ali Sher and Mustaq came to him near Pinua Stand to hire his taxi. He told them that he could not take them in his taxi as they were not known to him. The drivers of other taxis viz. Ikbal, Shahjad, Mehmood and Liyakat present there said that they knew Ummed, who is resident of Pinua. Thereupon, he agreed to go with them from Kaman to Parmadra for a sum of Rs.2,500. Diesel of Rs.1,000 was filled in the tank from petrol pump and its payment was made by Ummed. The drivers of other taxis viz. Ikbal, Shahjad, Mehmood and Liyakat present there said that they knew Ummed, who is resident of Pinua. Thereupon, he agreed to go with them from Kaman to Parmadra for a sum of Rs.2,500. Diesel of Rs.1,000 was filled in the tank from petrol pump and its payment was made by Ummed. They went to Kaman from Pinua and reached there at around 11.30-12.00. Ummed thereupon told that they had to take an old man with them for his treatment, but that old man was not found there. Then they went to Parmadra and reached there at around 1-2 pm. Ummed brought a boy, named Kutti from Parmadra with him, who he claimed to be his friend. Then they went to Deeg with him. They stopped the vehicle near a seed shop. Ummed bought a bottle from that shop. On enquiry, he stated that this bottle was not available in Haryana and that this was an insecticide, which he would in his agriculture field. Ummed purchased 4-5 bottles of beer from Deeg. Except Mustaq, all other three started drinking the beer. Then they returned back to Kaman at about 4.00 pm. Accused then told him that they would stay during night at Kaman to attend a wedding. However, this witness expressed inability since he had a booking in early morning of next day. Thereafter, Ali Sher talked to one person at Sikri on cellphone. Then they said that since the function of the marriage was fixed is around 7-8 pm, they should go to Sikri for buying a cutter and asked him (this witness) to take the vehicle to Sikri. Sahun declined them to go to Sikri saying that the vehicle was hired only upto this place, whereupon they assured to give him additional Rs.100-200 for diesel. Then they reached Sikri. There they met with an old man named Aas Mohammad, whom they took in the vehicle. Sahun has further stated that thereafter they came to Gopalgarh. When Aas Mohammad asked to stop the vehicle there, Mustaq pointed a ‘Katta’ (country made pistol) at him saying that he should continue driving. When they reached at Maroda where near a jungle, the accused asked him (this witness) to run the vehicle over Aas Mohammad. When he refused to do so, Mustaq said that he knew how to drive and would run the vehicle over Aas Mohammad. When they reached at Maroda where near a jungle, the accused asked him (this witness) to run the vehicle over Aas Mohammad. When he refused to do so, Mustaq said that he knew how to drive and would run the vehicle over Aas Mohammad. Thereafter, Ali Sher, Kutti and Ummed came out of the vehicle and consulted each other saying that if they would catch the driver, Aas Mohammad would run away and therefore they cancelled the said plan. Sahun (PW7) further stated that from there, they reached Badkali and thereafter to Firozpur. When they were going towards Pallikheda, Mustaq asked him (this witness) to slow down the vehicle. Ali Sher, Ummed and Kutti overpowered Aas Mohammad and Ummed poured the bottle of Aldrin (insecticide) into the mouth of Aas Mohammad, who thereupon died. Thereafter, they reached Kati Khati near village Papda, where the dead body of Aas Mohammad was thrown near the bushes around 12 in the mid night. Then they came to Parmadra to drop Kutti. On the way, they discussed that the let driver (Sahun) be also killed or else, he would disclose the entire incident to police. It was around 1.00 pm in the midnight that after dropping Kutti, they returned back and from there went to Punhana at 2.00 pm. Then he dropped Ummed from vehicle in Thekda Village i.e. at the place of his in-laws and then he dropped Ali Sher and Mustaq in village Molaka. These people threatened him that if he disclosed about the incident to anybody, they would kill him. When he demanded the outstanding amount of fare from the accused, they refused to pay the same. Surprisingly, this incident had taken place on 2.10.2010. The statement of Sahun was recorded by the police u/s.161 Cr.P.C. (Ex.D2) on 23.11.2010. When asked to give explanation for this delay, he stated that he did not disclose about the incident for 20- 25 days because the accused threatened him with dire consequences and he was quite tense. Thereafter, he disclosed this fact to his brother-in-law Ikbal and then he decided that instead of keeping it secret, he should disclose about the incident to the police. He then went to Police Station Gopalgarh and narrated the entire incident to the police. Thereafter, he disclosed this fact to his brother-in-law Ikbal and then he decided that instead of keeping it secret, he should disclose about the incident to the police. He then went to Police Station Gopalgarh and narrated the entire incident to the police. This witness has stated that in between he called on the mobile numbers of Ali Sher and Mustaq to demand for due amount of fare, but they declined to pay the amount. This witness has been subjected to detailed cross examination by the defence counsel. In cross examination, he stated that one of his brothers was a Police Constable posted at Palwal. He stated that he went to the residence of Ali Sher and Mustaq demanding the outstanding amount of taxi fare. He did not know them from before the incident. He learnt about their names when these accused were calling each other by name. He did not enquire from the accused as to whose wedding they wanted to attend at Kaman. They returned back to Kaman from Parmadra at about 3.00-3.30 pm and stayed there for an hour. He did not remember the name of the Seed Shop wherefrom the bottle of pesticide Aldrin was bought by the accused. He did not know Aas Mohammad. He heard about his name from Ali Sher when he was talking to someone on phone. He has also stated that Tutti @ Gopal had caught hold of Aas Mohammad. Mustaq had pointed a `katta’ at him. Ali Sher and Ummed got down from his vehicle. There they consulted each other if Aas Mohammad should be killed by running vehicle over him. After some time, Tutti @ Gopal also got down from the vehicle to discuss this issue. When he was confronted with his police statement (Ex.D2) as to why he did not mention therein that Ali Sher and Kutti caught hold of Aas Mohammad and Ummed poured Aldrin in his mouth, he stated that though he mentioned this fact to the police, but why they did not mention it in the statement, he could not explain. When he was asked to explain why in his statement recorded earlier before the court as PW1, he did not state so, he could not give any explanation. When he was asked to explain why in his statement recorded earlier before the court as PW1, he did not state so, he could not give any explanation. Gopal (PW4) in his statement recorded on 4.9.2012 has stated that Ummed used to run a private clinic in village Paramadra, which was located in their neighbourhood. He had opened the said clinic about 4-5 years ago. Ummed came to him at about 3-4 pm on 1.10.2010 along with his two friends Mustak and Ali Sher in a Scorpio No.HR 51 Z 2578 with driver of the vehicle. Ummed asked him to get ready as they had to go to attend a wedding at Kaman. He went with them, but when the vehicle turned towards Deeg, he asked the reason, Ummed thereupon told him that since he has sowed the onions in his agriculture field, he was going to buy some insecticides from Deeg. They went to a seed shop where Ummed purchased a bottle of Aldrin for a sum of Rs.40, which amount was paid by Mustak. Ummed purchased 7 beer bottles from a liquor shop. Then they returned back to village Parmadra and from there to Kaman. Driver told them that his taxi fare was settled only upto place of Kaman and, therefore, he would not go forward. Mustak then made a telephone call to someone and told that since they wanted to buy a cutter, he (the called person) should come with them. The person whom he called told that he was at Sikri. They then went to Sikri and brought in the vehicle. On enquiry they told him that they would stay at Gopalgarh for buying the cutter. When the vehicle crossed Gopalgarh that person enquired the reason why they were not stopping the vehicle at Gopalgarh, the accused then gave him slaps and overpowered him. The accused asked driver to continue driving the vehicle. Mustak then made a call from the mobile and gave the cell phone to that old man asking him to talk to his son. He could hear the voice because the speaker of the cellphone was on and he heard the old man talking to someone calling him as his son. Aas Mohammad was pleading with that person as to why he was behaving with them like this. He could hear the voice because the speaker of the cellphone was on and he heard the old man talking to someone calling him as his son. Aas Mohammad was pleading with that person as to why he was behaving with them like this. From the other side, the voice was heard that since the old man has transferred the title of the agriculture land measuring 7 bigha in favour of a woman, this was being done to him. Thereafter, the phone was disconnected. Ummed then covered eyes of the old man with a piece of cloth (‘safi’). Then they forcibly made him to drink Aldrin. Gopal (PW4) then further stated that he could not say with certainty as to which of the accused poured insecticide in the mouth of deceased as he was at that time drunk. After some time, the old man died and his dead body was thrown in the jungle near mountain. The accused threatened him of dire consequences if he disclosed about the incident to anyone and told that they have killed this man at the instance of his son. Even this witness has been subjected to cross examination. He has admitted that he had friendship with Ummed for last 4-5 years. He was resident of village Pingawa. He had seen Ali Sher only once after the incident when the police brought him to his house. He knew so many shop owners in Deeg. He denied the suggestion that 10 drops of Aldrin would have the same intoxication equal to bottle of bear. He admitted that when they reached Kaman, he was fully intoxicated. It was because, he was not a regular drunkard and used to only occasionally consume the liquor. When they returned to Parmadra from Kaman, he was fully drunk. His family members knew about his habit of drinking. He consumed three bottles of beer and three packs of liquor. The rest of the liquor was consumed by other three accused. The driver did not consume the liquor. He was not aware as to whose wedding they had to attend at Kaman. As far as he remembered, no one went to attend any such wedding. He kept lying in the back seat of the vehicle because he was drunk. The rest of the liquor was consumed by other three accused. The driver did not consume the liquor. He was not aware as to whose wedding they had to attend at Kaman. As far as he remembered, no one went to attend any such wedding. He kept lying in the back seat of the vehicle because he was drunk. Even this witness could not give any explanation why he did not immediately inform the police about the incident inasmuch as why his statement under Section 161 Cr.P.C. was recorded by the police on 2nd October, 2010 (10.1.2011). In the same manner in which the police statement of Sahun (Ex.D2) was recorded by the police 23.11.2010, there was delay of 52 days in recording the police statement of Sahun. The Investigating Officer Asaram (PW24) has failed to give any explanation as to why charge sheet was not filed against Gopal, who as per the testimony of Sahun actively participated in the incident with other accused. All that he has stated is that though he proceeded on the statement of Sahun, but the reliability of the statement was not taken by him as 100%. Even then he has admitted that Sahun in his statement under Section 161 Cr.P.C. has stated that Ummed, Ali Sher and Gopal, all three of them caught hold of the old man and poured the insecticides in his mouth. But he admitted in cross examination that when Aas Mohammad was put to death by the accused, Tutti @ Gopal was very much available in the vehicle inasmuch he also admitted that when the dead body of Aas Mohammad was thrown, Tutti @ Gopal was available in the vehicle. As per the prosecution, the accused-appellants were hired by Aarif, who wanted to put an end to the life of his father. In other words, it was a case of contract killing of father at the instance of son and the motive for such an extreme step on his part, has been disclosed to be transfer of their agriculture land measuring 7 bighas by his father in favour of a woman. Neither identity of that land with reference to khasra number or revenue village has been disclosed, nor any such gift deed or transfer deed has been placed on record, nor identity of the woman in whose favour, the transfer was allegedly made, has been fixed. Neither identity of that land with reference to khasra number or revenue village has been disclosed, nor any such gift deed or transfer deed has been placed on record, nor identity of the woman in whose favour, the transfer was allegedly made, has been fixed. Not only this, the Scorpio vehicle in which the deceased was allegedly, has not been seized. No investigation has been made as to if any proof with regard to incident could be found therein. Sahun was the driver of the hired vehicle, but the registered owner of the vehicle has not been produced before the Court. There is no explanation given by Sahun as to why he did not disclose about the incident to anyone including police, particularly when the accused refused to pay his outstanding amount of taxi fare. If as per the perception of the police, Tutti @ Gopal was so innocent, but when the crime was committed in his presence by the other accused, then why did he not disclosed about the incident to police or anyone, has not been explained. The analysis of the evidence clearly shows that though death of Aas Mohammad may have been homicidal, but guilt of the accused-appellants on that basis cannot be held to be proved beyond reasonable doubt inasmuch the incriminating circumstances proved by the prosecution are not such wherefrom a definite inference can be safely drawn that it must be these accused and none else, who would have committed murder of deceased Aas Mohammad. The chain of circumstances against the accused-appellants have several missing links. It would be therefore highly unsafe to sustain their conviction on the basis of this kind of evidence. We are constrained to observed that investigation in the present case has been conducted in a very negligent and lackadaisical manner. We therefore direct the Director General of Police to take appropriate disciplinary action against the erring Investigating Officer in accordance with law for conducting such a defective investigation. A copy of this order be sent to Director General of Police, Rajasthan, Police Headquarters, Jaipur. In the result, all the three appeals deserves to be succeed and is accordingly allowed. The impugned judgment dated 01.10.2014 passed by District and Sessions Judge, Kaman, Bharatpur in Sessions Case No.11/2012 is set aside. The accused-appellants namely; Mustaq, Aarif, Ali Sher and Ummed @ Rahul are acquitted from all the charges. In the result, all the three appeals deserves to be succeed and is accordingly allowed. The impugned judgment dated 01.10.2014 passed by District and Sessions Judge, Kaman, Bharatpur in Sessions Case No.11/2012 is set aside. The accused-appellants namely; Mustaq, Aarif, Ali Sher and Ummed @ Rahul are acquitted from all the charges. The accused-appellants are in jail. They be set at liberty forthwith if not required to be detained in connection with any other case. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the aforesaid appellants are directed to forthwith furnish a personal bond in the sum ofRs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.