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Rajasthan High Court · body

2019 DIGILAW 2010 (RAJ)

State of Rajasthan v. State of Rajasthan

2019-07-20

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT 1. Shareef Khan, Kala @ Rahees, Salamu @ Salmu, Lallu and Imamudeen had faced trial in FIR No. 53 dated 03.11.2010 registered at police Station Bhiwadi, District Alwar under Section 147, 148, 149, 447 302, 307 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 3/25 of Arms Act 1959 (hereinafter referred to as the 'Act') 2. Prosecution story in brief is that on 03.11.2010 at about 12.00 noon Asloop was working in his fields. Suddenly, Shareef Khan, Amrudi, Salam, Jakar, Juhru, Imamudeen, Hameed, Tahir, Haneef came to the spot on a tractor. In the meantime, son of Asloop as well as brother of the complainant reached the spot. Despite opposition, accused started ploughing the land and started firing at the complainant party. As a result, Abbas and Hakmudeen suffered injuries. Abbas succumbed to his injuries, during treatment. 3. On the basis of the statement of the complainant, formal FIR was registered. 4. Challan was presented against accused Shareef Khan, Jakar (absconder), Kala @ Rahees, Lallu and Imamudeen. So far as investigation qua other accused is concerned, the same was kept pending. Later, supplementary challan was presented against accused Salamu @ Salmu. 5. Charges were framed against the accused under Section 307, 307/149, 302, 302/149 IPC. Accused did not plead guilty and claimed trial. 6. In order to prove its case, prosecution examined 29 witnesses. Accused Shareef Khan when examined under Section 313 Cr.P.C., prayed that he was in possession of the land-inquestion. Infact, complainant party wanted to dispossess them from the land-in-question by basing reliance on a sale deed, which was infact, a paper transaction. Complainant party had raised dispute and they had fired at him. He had received firearm injury on his feet. 7. Accused Kala @ Rahees has taken the plea in his statement under Section 313 Cr.P.C. that he was not present at the spot. He has been falsely involved in this case. He was not having any gun with him. He was a poor person. 8. Accused Salamu @ Salmu has stated in his statement under Section 313 Cr.P.C. that he has been falsely involved in this case. He had no concern with the land-in-question. Infact, he was working as a driver on a vehicle. 9. Accused Imamudeen has stated in his statement under Section 313 Cr.P.C. that he was not present at the spot. 8. Accused Salamu @ Salmu has stated in his statement under Section 313 Cr.P.C. that he has been falsely involved in this case. He had no concern with the land-in-question. Infact, he was working as a driver on a vehicle. 9. Accused Imamudeen has stated in his statement under Section 313 Cr.P.C. that he was not present at the spot. Infact, he was admitted in the hospital, at the time of incident and he was present in the hospital along with his son. 10. Accused Lallu in his statement under Section 313 Cr.P.C. has stated that he has been falsely involved in this case. He was present in the hospital along with accused Imamudeen. 11. Trial Court vide judgment/order dated 03.11.2014 ordered the conviction and sentence of appellant Salamu @ Salmu under Section 302 IPC, whereas, accused Shareef Khan, Lallu and Kala @ Rahees were convicted and sentenced qua offence punishable under Section 307 IPC. Accused Imamudeen was acquitted of the charges framed against him. During the course of arguments, it has transpired that the accused Jakar, who was an absconder, was later arrested and faced trial and was acquitted by the trial Court. 12. Learned counsel for the accused have submitted that the prosecution had miserably failed to prove its case. Infact, complainant had not witnessed the occurrence. Infact, Shareef Khan and his family members were in possession of the land-inquestion. Complainant party had tried to take possession of the land-in-question by basing reliance on a sale deed alleged to have been executed in their favour by Dinu, although, the said sale deed was merely a paper transaction. Infact, PW-19 has also stated that he could not tell as to which party was in possession of the land-in-question. Rather, it was a case of sudden fight. Both the sides were armed with firearms, at the time of incident. Both the sides had fired at each other, which resulted in injuries to Abbas and Hakmudeen as well as accused Shareef Khan. 13. Learned State counsel, who is assisted by the counsel for the complainant has submitted that the accused were armed with firearms at the time of incident and had fired at the complainant party. All the accused had come to the spot with common intention to commit the crime. Abbas had died on account of firearm injury suffered by him. Hakmudeen had suffered three firearms injuries in the incident. All the accused had come to the spot with common intention to commit the crime. Abbas had died on account of firearm injury suffered by him. Hakmudeen had suffered three firearms injuries in the incident. Hence, all the accused were liable to be convicted qua offence punishable under Section 302 IPC with the aid of Section 149 IPC. 14. Present case relates to murder of Abbas and firearm injuries suffered by injured Hakmudeen. Thus, present case rests on eyewitness account. 15. Complainant Shareef Khan while appearing in the witnessbox as PW-1 has deposed that on 03.11.2010, he was watering his fields. In the meantime, thirteen persons came on tractor, i.e., Salamu, Jakar, Shareef Khan, Amrudi, Irfan, Rahees, Juhru, Imamudeen, Lallu, Tahir, Kala Hameed, Haneef. Tractor was being driven by Irfan. Abbas and Hakmudeen were ploughing the land. Assailant were armed with pistols and guns. On reaching the spot, the said persons started ploughing the land. When Abbas and Hakmudeen objected to the same, they fired at them. Shareef Khan fired from his countrymade pistol at Abbas and as a result, he suffered firearm injury on his chest. Lallu fired from his gun at Hakmudeen and the shot hit him on his head. Rahees fired from his countrymade pistol on the neck of Hakmudeen. Shareef Khan fired from his countrymade pistol on the back of Hakmudeen. He further stated that on account of injuries suffered by Abbas, he died in the hospital. 16. PW-12 Injured Hakmudeen deposed that on 03.11.2010 at about 12.00 noon, he was working along with Abbas in the fields in which the incident had occurred. Shareef Khan, Amrudeen, Rahees, Irfan, Imamudeen, Lallu, Hameed, Kala, Salam, Jakir, Haneef, Tahir, Juhru came on a tractor to the fields. The tractor was being driven by Irfan. The said persons got down from the tractor and tried to plough the land. Then, Abbas ran to stop them from doing so. Salam fired from his countrymade pistol at Abbas. 17. As a result, Abbas fell on the ground. Shareef Khan fired from his gun on his (witness) hand. Kala fired from his countrymade pistol at his neck. Kala fired at him and he suffered injuries on his feet. Thereafter, all the accused started firing shots. Abbas died on account of the injuries suffered by him. He (witness) was admitted in the hospital and was operated. 18. Shareef Khan fired from his gun on his (witness) hand. Kala fired from his countrymade pistol at his neck. Kala fired at him and he suffered injuries on his feet. Thereafter, all the accused started firing shots. Abbas died on account of the injuries suffered by him. He (witness) was admitted in the hospital and was operated. 18. PW-4 Asloop, PW-9 Arsad, PW-11 Mustaq, PW-13 Roojdar, PW-21 Noor Mohammad and PW-25 Haseena have corroborated the statements of the complainant as well as PW-12. 19. PW-15 Dr. Ajay Goyal deposed that he had medico legally examined injured Hakmuddin on 03.11.2010 and proved the report in this regard, Exhibit-P-20. 20. PW-20 Dr. Rakesh Soni deposed that he had conducted postmortem examination of Abbas on 03.11.2010 and proved the report Exhibit-P-23. 21. PW-28 Mohan Meena has deposed with regard to the investigation conducted by him. In his cross-examination, he deposed that a phone call had been received in the police station that firing incident had occurred between two parties. He further deposed that accused Shareef Khan had also suffered injuries in the incident. 22. PW-17 Sahun deposed that both the sides had fired at each other. The said witness was declared hostile. 23. In the present case, dispute between the parties had occurred on account of the possession of land. It is the case of the complainant party that they were in possession of the land, whereas, it is the case of the accused party that they were in possession of the land-in-question. 24. PW-19 Mehboob deposed that he was posted as a Patwari. He proved the Jamabandi Exhibit P-22-A. He further deposed that entry with regard to mutation No. 526 was made in favour of Asloop and Kala. However, in his cross-examination he deposed that he could not tell as to who was in cultivating possession of the land-in-question, at the time incident. 25. Investigating officer PW-28 has also deposed in his crossexamination that there was land dispute between the parties relating to payment of money. 26. Thus, it appears that in the present case the occurrence had taken place all of sudden on account of dispute between the parties with regard to possession over the land-in-question. Accused had fired shots in a sudden fit of passion. As per the prosecution witnesses, each accused had fired one shot. Hence, each accused was responsible individually for his own act. Accused had fired shots in a sudden fit of passion. As per the prosecution witnesses, each accused had fired one shot. Hence, each accused was responsible individually for his own act. In the facts and circumstances of the present case, learned trial court rightly held that all the accused had not acted with common intention at the time of the incident to achieve a common object. 27. So far as accused Salamu @ Salmu is concerned, the shot fired by him had hit Abbas. As per the postmortem examination report Exhibit P-23 deceased had suffered one injury in between his 9th and 10th rib. The other accused had not inflicted any injury to Abbas. Thus, we are of the considered opinion that the present case would not fall within the ambit of Section 302 IPC, so far as accused Salamu @ Salmu is concerned but would fall within the ambit of Section 304 (1) IPC. Hence, the conviction of accused Salamu @ Salmu is liable to be altered from 302 IPC to 304(1) IPC. 28. So far as accused Kala is concerned, he had fired at the neck of injured Hakmudeen. The said fact is corroborated by Exhibit P20 medico legal report of injured Hakmudeen. Accused Shareed Khan had fired at the head of Hakmudeen. The said fact is also corroborated by medical evidence. As per Exhibit P-20 medico legal examination report of injured Hakmudeen, he had suffered injury on left side of his forehead. Hence, accused Shareef Khan as well as Kala @ Rahees have been rightly convicted and sentenced by the trial court under Section 307 IPC. 29. So far as accused Lallu is concerned, Hakmudeen while appearing in the witness-box as PW-12 has deposed that he had fired shot at his feet. However, a perusal of Exhibit P-20 medico legal report of injured Hakmudeen reveals that he had not suffered any injury on his feet. Hence, the possibility that accused Lallu might have been falsely involved in this case cannot be ruled out as ocular version with regard to his involvement in the crime is not corroborated by medical evidence. Hence, the said accused is liable to be acquitted by giving him benefit of doubt. 30. So far as accused Imamudeen is concerned, no overt act has been attributed to him. Hence, trial court had rightly ordered the acquittal of accused Imamudeen. 31. Hence, the said accused is liable to be acquitted by giving him benefit of doubt. 30. So far as accused Imamudeen is concerned, no overt act has been attributed to him. Hence, trial court had rightly ordered the acquittal of accused Imamudeen. 31. Accordingly, accused Salamu @ Salmu is held guilty of offence under Section 304 (1) IPC and is convicted thereunder. Accused Salamu @ Salmu is sentenced to undergo rigorous imprisonment for ten years with fine of Rupees twenty thousand. It is further ordered that in case of default of payment of fine accused Salamu @ Salmu shall further undergo rigorous imprisonment for three months. D.B. Criminal Appeal No. 1112/2014 stands disposed of accordingly. 32. Conviction and sentence of accused Shareef Khan and Kala @ Rahees as ordered by the trial court vide judgment/order dated 3.11.2014 are upheld. D.B. Criminal Appeal No. 10/2015. 33. So far as accused Lallu is concerned, he is acquitted of the charges framed against him. Consequently, D.B. Criminal Appeal No. 1138/2014 is allowed. 34. Consequently, D.B. Criminal Appeal No. 1139/2014 filed by complainant Hakmudeen and D.B. Criminal Appeal No. 805/2016 filed by the State are dismissed. 35. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Lallu is directed to furnish a personal bond in the sum of Rs. 10,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, appellant Lallu, on receipt of notice thereof, shall appear before the Supreme Court.