HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 437/2017
1. Kadir @ Kadira S/o Shri Chhote Khan, R/o Patanpole, Kota
City, Kota, Rajasthan
2. Faraz @ Pintu S/o Shri Fayaz Ahmed, R/o Hiranbazaar
Makbara, Kota City, Kota, Rajasthan.
(Both are presently lodged in Central Jail, Kota)
----Appellants
Versus
State Of Rajasthan through PP
----Respondent
Connected With D.B. Criminal Appeal No. 528/2017 Shani @ Niyamat S/o Liyakat, R/o Adharsheela Basti, Dadabadi, Kota (At present in Central Jail, Kota)
----Appellant Versus State Of Rajasthan through PP
----Respondent D.B. Criminal Appeal No. 2040/2017 Sadakat Ali @ Chhota Sadda S/o Hameed Ali, R/o Near Bibi Johare Ki Masjid, Police Station Makbara, Kota, Rajasthan. (At present in Central Jail, Kota)
----Appellant Versus State Of Rajasthan Through P P
----Respondent D.B. Criminal Appeal (Db) No. 166/2019 Golu @ Muntjeer S/o Chand @ Mohammad Ali, R/o Hiran Bazaar, below Kazi House, Chandraghata, Police Station Makbara Kota (At present in Judicial Custody at Distt Jail Kota)
----Appellant Versus State Of Rajasthan
----Respondent (Downloaded on 02/02/2023 at 11:50:09 PM) (2 of 13) [CRLA-437/2017] For Appellant(s) : Mr. Suresh Kumar Sahni with Mr. Ram Mohan Sharma Mr. M.S. Solanki Mr. Buddhi Prakash Meena for Mr. Shafiqur Rahman Mr. Abdul Kalam Khan with Mr. N.P. Meena, Ms. Ankita Saini Mr. Ravi Kumar Kasliwal For State : Mr. Javed Choudhary, AGA For Complainant Mr. Mirza Ishrat Beg HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Judgment Order reserved on :: 25/01/2023 Order pronounced on :: 01/02/2023 By the Court (Per Hon'ble Pankaj Bhandari)
1. Appellants-Kadir @ Kadira and Faraz @ Pintu have filed Criminal Appeal No.437/2017 against the impugned judgment dated 21.01.2017 passed by Addl. Sessions Judge (Women Atrocities Cases) No.1, Kota in Sessions Case No.128/2016, whereby the accused appellants were convicted for offence under Sections 302 read with 34 IPC, 307 read with 34 IPC and 3/25 of Arms Act and acquitted from the offence under Section 148 IPC. For offence under Section 302 read with 34 IPC, they have been sentenced to undergo life imprisonment till the extinction of biological life and fine of Rs.10,000/- and in default for non- payment of fine, to further undergo sentence of one year simple imprisonment. For offence under Section 307 read with 34 IPC, they have been sentenced to seven years rigorous imprisonment and fine of Rs.10,000/- and in default for non-payment of fine, to (Downloaded on 02/02/2023 at 11:50:09 PM) (3 of 13) [CRLA-437/2017] further undergo one year additional simple imprisonment. For offence under Section 3/25 of Arms Act, they have been sentenced for three years simple imprisonment and fine of Rs.1,000/- and in default for non-payment of fine, to further undergo one month simple imprisonment.
2. Appellant-Shani @ Niyamat has preferred Criminal Appeal No.528/2017 against the judgment of conviction and sentenced dated 21.01.2017 passed by Addl. Sessions Judge (Women Atrocities Cases) No.1, Kota in Sessions Case No.128/2016, whereby he has been convicted for offence under Sections 302, 307 IPC and 3/25 of Arms Act and acquitted for the offence under Section 148 IPC. For offence under Section 302 IPC, he has been sentenced for life imprisonment till death and fine of Rs.10,000/- and in default of fine, to further undergo sentence of one year simple imprisonment. For offence under Section 307 IPC, he has been sentenced for seven years rigorous imprisonment and fine of Rs.10,000/- and in default of fine, to further undergo, one year simple imprisonment. For offence under Section 3/25 of Arms Act, he has been sentenced for three years simple imprisonment and fine of Rs.1,000/- and in default of fine, to further undergo, one month simple imprisonment. All the sentences of accused appellant shall run concurrently.
3. Accused appellant-Sadakat Ali @ Chhota Sadda filed cirminal appeal No.2040/2017 against the judgment and Order dated 02.11.2017 passed by Addl. Sessions Judge (Women Atrocities Cases) No.1, Kota in Sessions Case No.128/2016, whereby he has been convicted for offence under Sections 148, 302 read with 149 IPC, 307 read with 149 IPC. For offence under (Downloaded on 02/02/2023 at 11:50:09 PM) (4 of 13) [CRLA-437/2017] Section 148 IPC, he has been sentenced for three years rigorous imprisonment and fine of Rs.500/- and in default of payment of fine, to further undergo 15 days additional rigorous imprisonment. For offence under Section 302 read with 149 IPC, he has been sentenced for life imprisonment and fine of Rs.10,000/- and in default of fine, to further undergo one year additional simple imprisonment. For offence under Section 307 read with 149 IPC, he has been sentenced for seven years rigorous imprisonment and fine of Rs.10,000/- and in default of fine, to further undergo, one year rigorous imprisonment. Al the sentences of accused appellant shall run concurrently.
4. Accused appellant-Golu @ Muntjeer filed Criminal Appeal No.166/2019 against the judgment and order dated 02.05.2019 passed by Addl. Sessions Judge (Women Atrocities Cases) No.1, Kota in Session Case No.128/2016, whereby the accused-appellant has been convicted for offence under Sections 148, 302/149, 307/149 of IPC. For offence under Section 148 IPC, he has been sentenced for three years rigorous imprisonment and fine of Rs.500/- and in default of fine, to further undergo, fifteen days simple imprisonment. For offence under Section 302/149 IPC, he has been sentenced for life imprisonment and fine of Rs.10,000/- and in default of fine, to further undergo one year simple imprisonment. For offence under Section 307/149 IPC, he has been sentenced for seven years rigorous imprisonment and fine of Rs.10,000/- and in default of fine, to further undergo one year simple imprisonment. Al the sentences of accused appellant shall run concurrently.
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5. Succintly stated the facts of this case are that Saleem (PW-1) gave a parchabayan (Ex.P-1) when he was admitted in emergency ward in M.B.S. Hospital, Kota on 01.04.2011 at 10:45 pm, on the basis of which, FIR No.70/2011 was registered at 11:30 pm at Police Station Kotwali, Kota. Saleem in the parchabayan mentioned that he alongwith his friend Kafil and Afroz were returning after taking food from Gumanpura on motorcycle of Afroz. Afroz was riding the motorcycle, Saleem was sitting in the middle and Kafil was sitting on the back. It is also mentioned that at around 9:45 pm, when they reached near the shop of "Foota Court", then from the back, one motorcycle came, on which three persons were sitting. Shani was sitting on the back and there were two other persons. After the motorcycle came near his motorcycle, Shani with intention to kill, opened 2-3 fires upon them, out of which, one bullet hit his left shoulder and another bullet hit Kafil. After receiving the bullets, all three fell down on the ground and those three persons ran away on motorcycle towards subjimandi and his friend Afroz also went from there, after taking his motorcycle. In the parchabayan, it is also mentioned that he brought Kafil in an auto to M.B.S. Hospital, Kota. Kafil died due to gun shot injuries. It is also mentioned that there was an old enmity between Kafil and Shani, due to which the occurrence took place.
6. Police on the basis of this parchabayan, registered the case against the accused persons under Section 302, 307 and 34 IPC. After investigation, police filed charge-sheet against five accused persons. Out of these five persons, two persons namely, Golu @ Muntazir and Sadakat absconded during trial and Kadir @ (Downloaded on 02/02/2023 at 11:50:09 PM) (6 of 13) [CRLA-437/2017] Kadira, Faraz @ Pintu and Shani @ Niyamat faced trial. Learned Trial Court framed charges against the accused persons. The accused denied the charges and sought trial. Prosecution examined 27 witnesses and exhibited 40 documents. Accused appellants were examined under Section 313 Cr.P.C., though they denied allegations. In defence, documents Ex.D-1 to D-3 were exhibited. Aggrieved by which, the present appeals have been filed.
7. It is contended by counsel for the appellants-Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @ Chhota and Golu @ Muntjeer that they were not named in the FIR. No test identification parade was got conducted by Saleem (PW-1) to implicate the present appellants. It is also contended that the case of the prosecution rests on the statement of PW-1(Saleem) and PW-3 (Said Khan). PW-1(Saleem) has in his evidence deposed akin to the parchabayan. With regard to PW-3 (Said Khan), it is contended that the presence of Said Khan at the place of occurrence is doubtful. Said Khan has tried to falsely implicate appellants- Sadakat and Golu by stating before the Court that there was yet another motorcycle which was following the motorcycle on which Saleem, Afroz and Kafil were riding. It is further contended that Said Khan is a resident of Bhawanimandi which is at a distance of 115 kms. from the place of occurrence. As per his version, he lifted the deceased and put him in an auto, as deceased had sustained gun shot injuries. Said Khan's clothes were also stained by blood but the same was not recovered by the investigating officer.
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8. It is also contended that Said Khan has stated in his cross-examination that after the incident, he returned to Bhawanimandi and after reading about the incident in the newspaper, he returned to inform the police. He has stated that after he read the newspaper, he received a call from Akhtar Ali (PW-5) and Akhtar Ali informed him that police is looking for him. In his cross-examination, he has stated that he has known Akhtar Ali for last 5-6 months. He did not know him but can recognise him. He also stated that Akhtar Ali was not knowing him. Thereafter, he stated that he knew Akhtar Ali both by name and also recognised him. However, he has stated that he does not know as to whether Akhtar Ali was a resident of Kota. In his cross- examination, he has admitted that Akhtar Ali was not knowing his name and address. The witness has stated that he is not sure from whom he purchased the fruits on the date of the incident. He also did not inform any fruit merchant about the incident. He has also stated that he did not inform any police station about the incident.
9. It is further contended that Said Khan (PW-3) witness is totally an unreliable witness. He has stated that Akhtar Ali informed him on phone that police is calling him, whereas, Akhtar Ali has not stated so in his evidence and Akhtar Ali has been declared hostile by the prosecution. It is contended that the witness in his cross-examination has stated that he does not know Afroz and Afroz also does not know him. However, in his examination-in-chief, he has stated that Akhtar and Afroz told him about the name of the person who has sustained gunshot injuries. It is also contended that this witness has stated that he comes to (Downloaded on 02/02/2023 at 11:50:10 PM) (8 of 13) [CRLA-437/2017] Kota every day at 5-5:30 pm and after purchasing fruits, returns in the morning at around 05:15 am. He has also stated that on the date of the incident, he talked to his wife at 09:15 pm on his neighbour's phone. He has further stated that he does not remember the name of his neighbour. Thus, PW-3 (Said Khan) is totally unreliable and has been planted by the prosecution to implicate accused-Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @ Chhota Sadda and Golu @ Muntjeer.
10. Counsel for the accused-appellants have placed reliance on Kanan and Ors. Vs. State of Kerala (1979) 3 SCC 319, wherein it was held that on failure to conduct test identification parade in respect of accused unknown to the witnesses, identification by such witness of the accused in Court was considered doubtful and his testimony must be excluded. Reliance is also placed on Bhagwati and Ors. Vs. State of Rajasthan (D.B. Criminal Appeal No.1174/2017) decided by Rajasthan High Court on 04.01.2023, wherein it was held that there are independent witnesses available and police does not make any serious attempt to join independent and respectable inhabitants, the panch witness are not reliable.
11. It is contended by counsel for Shani @ Niyamat that PW-1 (Saleem) is the solitary witness in this case who is not trustworthy and on evidence of the solitary witness, appellant- Shani cannot be convicted. It is also contended that the learned Court below has gone beyond the scope of Section 302 IPC and has sentenced appellant-Shani with life imprisonment till death, which sentence is unknown sentence to the IPC. (Downloaded on 02/02/2023 at 11:50:10 PM)
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12. Learned counsel for the complainant and counsel for the State have opposed these appeals. It is contended by counsel for the complainant that Saleem is a trustworthy witness as he himself has sustained gunshot injury. His presence at the place of occurrence thus cannot be doubted. It is also contended that immediately after the incident, his parchabayan was recorded at 09:45 pm, wherein he had mentioned that Shani had opened fire. It is further contended that the fire arm was recovered from Shani. There is report of ballistic expert which goes to show that the bullets which were recovered from the body of the deceased were the same which was fired from the firearm recovered from Shani. Our attention in this regard is drawn to Ex.P-21.
13. We have considered the contentions and have carefully perused the evidence on record.
14. PW-5 (Akhtar Ali) whose presence was shown at the place of occurrence, has clearly stated that he has not seen any incident. Afroz (PW-2) has stated that he alongwith Kafil and Saleem were going on a motorcycle and at that time, a motorcycle with three persons followed their motorcycle, on which Kafil told him to speed up. He has stated that he heard three fire shots and thereafter, they fell from the motorcycle. He has also stated that he has not seen the persons who has opened fire. Afroz has been declared hostile by the prosecution. Admittedly, as per the arguments advanced by both sides, the case rests on evidence of only two witnesses i.e. PW-1(Saleem)and PW-3(Said Khan). PW-1 (Saleem) is the one who himself has sustained gunshot injuries. His parchabayan was recorded immediately after the incident, in which he named Shani as the person who had opened fire. As to (Downloaded on 02/02/2023 at 11:50:10 PM) (10 of 13) [CRLA-437/2017] who were the other persons, he was not aware. No test identification parade was got conducted to ascertain the persons who were on the motorcycle with Shani. The case against Shani is proved by the evidence of Saleem (PW-1). It is further established from the recovery of fire arm at the instance of Shani that the bullets which were recovered were fired from fire arm recovered from Shani. On examination of the barrel residue, it is indicated that the country made pistol had been fired. Thus, it was established that Shani from whom the firearm was recovered and whose name appears in the parchabayan recorded immediately after the incident and whose name also appears in the statement given by Saleem before the Court is the person who opened fire. Thus, the learned Trial Court has rightly convicted Shani for the alleged incident under Sections 302 & 307 of IPC.
15. As far as conviction of other appellants is concerned, Saleem(PW-1) has not given any description of the persons who were riding on the motorcycle with Shani and has not named them. The investigating Officer has not made any attempt to hold any test identification parade for the same. Thus, from the statement of Saleem, the offence is made out only against Shani. The other evidence on which reliance has been placed by learned Trial Court for convicting all the appellants is the statement of Said Khan (PW-3). Saleem has stated in his cross-examination that behind their motorcycle, there is only one motorcycle and there was not any other motorcycle. In light of the clear statement made by Saleem, we now have to appreciate the evidence of Said Khan (PW-3) who is the resident of Bhawanimandi which is at a distance of 115 kms from the place of occurrence. As per his (Downloaded on 02/02/2023 at 11:50:10 PM) (11 of 13) [CRLA-437/2017] version, he goes to Kota every day at 5-5:30 in the evening and returns back on the next day morning at 5-5:30. He has stated that he had purchased fruits and was going towards the Railway Station. He has also named the accused who were sitting on the first motorcycle and second motorcycle. As per his version, he witnessed the incident and left for Bhawanimandi on the same day and came to know about the demise of the deceased by reading newspaper on the next day. He has further stated that after he read the newspaper, he received a call from Akhtar Ali (PW-5) that police is looking for him. Admittedly, this witness has stated that he was not knowing Akhtar Ali. He has clearly stated that Akhtar and Afroz did not know his name and address. As to how Akhtar knew his mobile number is not revealed by him in his evidence. As to how police came to know that he was a witness of the incident, is also not revealed from the evidence on record. If the testimony of this witness is considered to be correct, it is his version that he put the deceased in an auto and his clothes got stained with blood. As to why they were not recovered by the police, even though they would have been a material piece of evidence establishing his presence at the place of occurrence is not clear. From perusal of the testimony of this witness, it is evident that he is not even knowing the name of his neighbour on whose phone he called his wife at 9:30 pm on the same day. His call details have also not been produced to establish that he was present at Kota at the time of occurrence. It is also evident that his statement under Section 161 Cr.P.C. was recorded after two days of the incident. Thus, his presence at the place of occurrence is not established. The learned Trial Court has erred in convicting the (Downloaded on 02/02/2023 at 11:50:10 PM) (12 of 13) [CRLA-437/2017] accused appellants- Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @ Chhota Sadda and Golu @ Muntjeer on the basis of statement of Said Khan (PW-3). We, therefore, deem it proper to allow the appeal filed by Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @ Chhota Sadda and Golu @ Muntjeer.
16. However, the judgment of conviction dated 21.01.2017 of Shani @ Niyamat under Sections 302, 307 IPC and under Section 3/25 of Arms Act is upheld. As far as sentence awarded to Shani @ Niyamat under Section 302 IPC is concerned, the learned Trial Court has gone beyond the scope of Section 302 IPC in awarding the life imprisonment till death. We, therefore, partly allow Criminal Appeal No.528/2017 filed by Shani @ Niyamat to the extent of sentence. Accused- Shani @ Niyamat is now awarded life imprisonment in place of life imprisonment till death. The fine as imposed by the Court below for the offence under Section 302, 307 of IPC and Section 3/25 of Arms Act is maintained.
17. Accordingly, Criminal Appeal No.437/2017, Criminal Appeal No.2040/2017 and Criminal Appeal No.166/2019 are allowed and Criminal Appeal No.528/2017 is partly allowed and the impugned judgment of conviction and order of sentence dated 21.01.2017 qua the accused appellant-Kadir @ Kadira and Faraz @ Pintu, judgment dated 02.05.2019 and judgment dated 02.11.2017 are hereby quashed and set aside.
18. Accused-Golu @ Muntjeer is on bail. The bail bonds earlier submitted by Golu @ Muntjeer are hereby cancelled. Appellant-Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @ Chhota Sadda be released forthwith if not wanted in any other case. (Downloaded on 02/02/2023 at 11:50:10 PM)
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19. Appellants- Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @ Chhota Sadda and Golu @ Muntjeer are directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
(ANIL KUMAR UPMAN),J (PANKAJ BHANDARI),J
CHANDAN /51-54
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