Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 85 (RAJ)

Yusuf v. State of Rajasthan

2019-01-08

MANOJ KUMAR GARG, PRADEEP NANDRAJOG

body2019
JUDGMENT : 1. By way of instant criminal appeal, the appellants have challenged the judgment dated 31.05.2013 passed by the learned Additional District and Sessions Judge No. 1, Chittorgarh in Sessions Case NO. 42/2011 whereby, the appellants have been convicted and sentenced as under:- Offence Punishment 341 IPC One month S.I. 307 IPC Ten years R.I. alongwith fine of Rs. 1000/- in default of payment of fine, to undergo fifteen days imprisonment. 394 IPC Ten years R.I. and a fine of Rs. 1000/- and in default of payment of fine to undergo fifteen days imprisonment. 201 IPC Seven years' R.I and a fine of Rs. 1000/- each, in default of payment of fine, to undergo fifteen days imprisonment. 302 IPC Life imprisonment alongwith fine of Rs. 2000/- in default of payment of fine, to undergo fifteen days R.I. 2. Criminal litigation was set into motion when PW-1 Mangi lal lodged a written report Ex.P/1 before the S.H.O. Police Station, Akola, Chittorgarh to the effect that in the intervening night of 02.01.2009 and 03.01.2009 at about 12:00-1:00 AM, when his nephew Ratan lal was sleeping, a boy aged 25-26 years injured with blood oozing from his throat came there. Upon asking he could not utter anything but using sign language he indicated that he was a driver and somebody had stabbed him on the neck and had also tried to strangulate him with a rope and took away his vehicle. He gave first aid and later on the police reached and admitted the injured in the hospital at Sanwar. 3. Fir Ex.P/39 was registered by the police for offences punishable under Sections 394, 307, 323, 341 and 365 IPC and investigation commenced. 4. On 05.01.2009, the S.H.O. Police Station Mavli received a Radiogram that a man aged about 25-30 years who had been stabbed on his neck was lying in the outskirts of Mavli who was later on identified as Khalid i.e. the deceased. 5. The injured who had reached Ratanlal was Mohd. Anees PW-22. He was admitted in the hospital and could not speak. In the police record a statement in writing executed by him Ex.D-1, which bears no date has been brought on record during the cross examination of PW-22 who admitted that the same was written by him on account of the fact that due to his neck being cut he could not speak. In the police record a statement in writing executed by him Ex.D-1, which bears no date has been brought on record during the cross examination of PW-22 who admitted that the same was written by him on account of the fact that due to his neck being cut he could not speak. The statement is brief and only discloses that when the truck had been stopped enroute to take food four persons dragged him to the field. When he returned to the place where the truck had been parked he found the truck missing. Another statement Ex.D-2 in writing bearing the date 21.1.2009 was also admitted by him during cross examination. He did so because even till 21.1.2009 he could not speak. This has been recorded under Section 161 Cr.P.C. by the investigating officer. It is a detailed statement disclosing that he and the deceased were proceeding from Bombay to Delhi in truck No. HR 63 6485 they left Bombay in the company of the accused who were in truck No. RJ 14 GA 8297. As they reached Dabok and parked their truck the accused dragged him and the deceased to the field. They first cut the neck of the deceased and then injured him on the neck. When he reached the place where his truck had been stationed he found the truck missing. A person at an eatery rang up the police and he was removed to the hospital. Since he could not speak he gave the relevant information in writing. 6. Post investigation the present appellants and two more persons were charge-sheeted for offence under Sections 341, 323, 307, 394, 302, 201 and 120B IPC and were sent for the trial. 7. The prosecution examined 24 witnesses and exhibited various documents. Statement of the accused persons were recorded under Section 313 Cr.P.C but on the defence side no witness was examined. 8. At the conclusion of the trial, the learned Additional Sessions Judge No. 1, Chittorgarh vide judgment dated 31.05.2013 convicted the present appellants and passed the sentence as mentioned earlier. Two co accused were acquitted because there is no evidence against them. 9. Learned counsel for the parties agree today that the fate of the appeal has to be decided with reference to the question whether Mohd. Anees PW-22, admittedly an injured person, has to be believed or not. 10. Deposing in Court Mohd. Two co accused were acquitted because there is no evidence against them. 9. Learned counsel for the parties agree today that the fate of the appeal has to be decided with reference to the question whether Mohd. Anees PW-22, admittedly an injured person, has to be believed or not. 10. Deposing in Court Mohd. Anees has deposed facts in sync with what has been recorded in Ex.D-2, contents whereof we have noted hereinabove. They clearly implicate the appellants. He identified the two in Court. 11. The argument by counsel for the appellants is that the first written statement Ex.D-1 made by the witness does not name the appellants. Counsel states that Ex.D-1 does not bear any date but the testimony of the witness shows that it was recorded prior to Ex.D-2 being recorded. The written statement Ex.D-2 by the witness was recorded on 21.1.2009 and by said date the witness could have been tutored. 12. Now, evidence brings out that the neck of PW-22 had been slit and he could not speak even till 21.1.2009. In this injured condition his statement Ex.D-1 which was recorded a few days after the incident would obviously be cryptic. The statement Ex.D2, though recorded 16 days after the incident, is exhaustive and in the absence of any motive attributed to the witness, we see no reason to disbelieve PW-22. That the assault on the witness was serious is proved from the fact that the witness could not speak even after 16 days of the incident. The traumatic mental condition of the witness cannot be over looked by us. The cross examination of the witness shows that his credibility could not be dented. 13. After the arrest of the appellants, on their disclosure the weapon of offence i.e. knives were recovered from the appellants Yusuf Khan and Aasu respective vide recovery memo Ex.P-14 & Ex.P-18. Both these articles were sent to Forensic Science Laboratory and as per FSL report Ex.P-69, blood stains on the recovered articles were having same blood group 'B' which is that of the deceased. 14. The upshot of the above discussion is that none other than the appellants are guilty of committing the murder of Khalid and causing injuries to Mohd. Anees. 15. Consequently, the appeal fails and is hereby dismissed.