Chintu @ Aslam Sher Khan vs State
2022 Latest Caselaw 7879 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                D.B. Criminal Appeal No. 594/2009

 Chintu @ Aslam Sher Khan son of Shri Ahmed Ali R/o Aman
 Colony, Police Station Vigyan Nagar, Kota.
 (At present Confined at Central Jail, Kota)
                                                                       ----Appellant
                                   Versus
 State of Rajasthan through P.P.
                                                                     ----Respondent

For Appellant(s) : Mr. Madhav Mitra, Sr. Adv. assisted by Mr. Veerendra Singh & Mr. Himanshu Singh Chauhan Mr. Abdul Kalam Khan with Mr. Narendra Prasad Meena For Respondent(s) : Mr. Shyam Prakash Shrama, Dy.G.A.

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE SAMEER JAIN

Judgment / Order

Reserved On 16/11/2022 Pronounced on 19/12/2022

1. Appellant has preferred the instant appeal being aggrieved

by the judgment dated 30/03/2009 passed by learned Additional

Sessions Judge (F.T.) No.2, Kota (Raj.) in Sessions Case

No.03/2006 by which the appellant has been convicted and

sentenced to life imprisonment with fine of Rs.1,000/- and it has

been ordered that in default of payment of fine, he shall further

undergo one months' simple imprisonment.

2. Succinctly stated, case of the prosecution is as under:-

(i) On 25/09/2005, complainant-Abdul Rashid lodged a written

report (Ex.P-2) before Police Station Gumanpura, Kota bearing

No.477/2005 for offence under Section 302/34 IPC.

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(ii)    After registering FIR, the investigating agency Police Station

Gumanpura, Kota started investigation and submitted challan

before the learned court below.

(iii) The learned court below frame charges against the appellant

for offence under Section 302, 302/34 IPC & Section 3/25 Arms

Act as well also framed charges under Section 302/34 against co-

accused Farooq.

(iv) From the side of prosecution, statements of PW-1 to PW 28

and Exhibit P-1 to P-33 were examined .

(v) Statement of the appellant was recorded under Section 313

Cr.P.C. wherein he pleaded not guilty. He denied the charges as

well as entire prosecution story and prayed for trial.

(v) After hearing both the parties, the learned trial court vide

judgment dated 30/03/2009 convicted and sentenced the

appellant as mentioned above.

(3) Learned counsel for the appellant has submitted a glaring

fact that during pendency of the trial on the application of the

prosecution, non-bailable warrants were issued to the co-accused

under Section 319 Cr.P.C. i.e. against Sajid and Ashik against

which, a revision petition was also filed and their prosecution

proceedings were separately taken up though the matter was

interconnected. It was also contended that initially as per FIR, the

allegations were levelled against the appellant, Ashik and Sajid

and subsequently the prosecution changed entire story and entire

allegations and falsely the appellant and Farooq were found to be

the accused. Considering the case, application under Section 319

Cr.P.C. was allowed and separate trial was initiated against Sajid

and Ashik. It was also submitted that if both the stories are found

to be correct for a moment, then also, the same does not survive

(3 of 8) [CRLA-594/2009]

as Sajid and Ashik were acquitted in the separate trial and Farooq

was also exonerated of the charges. An application for bringing

additional documents on record was filed under Section 391 C.P.C.

before this Court. It was also urged that though separate

application has been filed but in the light of the provisions of

Section 80 of the Evidence Act, a presumption has to be drawn on

the evidence which was part of the criminal proceedings like

statements and the judgments. It was further contended that vide

order date 07/09/2021, this Court observed that the said

application and the documents will be considered at the time of

final hearing of the case and therefore, it was urged that the

record and judgment passed in the case of co-accused who was

separately trial, be considered while considering the present

appeal. Relying upon the memo of appeal and the submissions

made, learned counsel for the appellant submitted that the

present appeal be allowed and the appellant be acquitted of the

charges.

(4) Per-contra, learned counsel for the respondent-State

submitted that there is recovery of weapon and as per the report

of the medical officer, the reason of death is due to gun short

injury and the gun ha been recovered from the appellant and as

such, active role of the appellant has been proved an is revealed

from the FIR, statement of eye-witnesses (PW 3 & 4) and

therefore, considering the fact that the appellant had come with

other co-accused on the motor cycle and filed gun shot as well as

pulled the deceased and filed on the chest of the decease and the

injury has been reflected in the PMR report, which is substantiated

by the recovery of revolver and cartridges and the same is stated

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by the eye-witness (PW-3 & PW-7). Therefore, it has been prayed

that the appeal be dismissed.

5. We have considered the arguments advanced by respective

sides, record of the learned court below as well as the judgments

cited at bar.

6. On perusal of facts of the case it goes to show that initially in

the FIR it was accepted that the incident took place on

25/09/2005 and the author of the complaint (Abdul Rashid)

accompanied by Nizamuddin had submitted that the appellant was

riding on the motor-cycle alongwith Sajid and Ashik and Sajid

opened fire and two gun shots were filed by him and the role of

the appellant alongwith co-accused Sajid and Ashik and the entire

FIR, which has triggered, was founded on the same.

7. In th charge-sheet, the investigating agency has found that

no case is made out against Sajid and Ashik but so far as the

appellant is concerned, the investigation agency found the charges

proved against the appellant and thereafter an application under

Section 319 Cr.P.C. was filed wherein Sajid and Ashik were

summoned through arrest warrants. Therefore, in the present

case, two stories are running parallely, one is that at time of

occurrence Sajid, appellant and Ashik were the assailants and the

other that the appellant and farooq were the assailants.

8. It is important to note that in the first story, Sajid and Ashik

have been exonerated and acquitted of the charges while in the

second story, Farooq was also acquitted vide impugned judgment

dated 30/03/2009 meaning thereby, the only individual who

committed the act upon three persons i.e. deceased-Jamil, the

eye-witness-Abdul Rashid & Nazamuddin was the appellant. In

the case in hand, the learned trial court has also acquitted the

(5 of 8) [CRLA-594/2009]

appellant from the charges of Section 3/25 of the Arms Act for

want of present of District Collector who has sanctioned the

prosecution. It is also noted that there are contradictions in the

statements of the eye-witnesses and the other witnesses. If the

appellant alone committed the offence, the story of eye-witnesses

running away from the place of occurrence and not defending the

deceased goes away. The arguments advanced by learned counsel

for the appellant appears to be justified that the eye-witnesses

were planted and were interested witnesses as they were friends

and son-in-law of the deceased and they were not present at the

site as the investigating officer has found that the deceased-Jamil

was all alone on his bike at the time of incident. That apart, the

deceased-Jamil himself was a history-sheeter and there exists the

question of credibility in the statements of the eye-witnesses as

their statements are contradictory as at one place, they have

stated that they were running to the hospital and not to the police

station and have also stated that they did not try to save the

deceased which establishes that the eye-witnesses were absent

from the spot and only reached the hospital when they were

informed. As the co-accused persons, who are alleged in the FIR

have been acquitted in both the stories, the story made by the

prosecution in the case in hand, does not stand on its leg as the

appellant alone could not have performed the act of crime as

alleged. Secondly, once the offence an confiction under Section

3/25 of the Arms Act has been set aside qua the appellant by the

learned trial court, the entire occurrence of the incident by the

appellant himself appears to be a story-shake and has no

foundations and therefore, the findings arrived at by the learned

trial court in the instant case are contradictory and cannot be

(6 of 8) [CRLA-594/2009]

sustained as once offence under Section 3/25 has not been made

out.

9. In addition to above material irregularities, the other

evidences also appear to be planted like the place of signing of the

Panchnama by Abdul Rashid as to whether it was a hospital or

police station an whether the motor-cycle was resumed with no

number plate, then how the numbers came to be existing. It is

also on account of the fact that the appellant has filed one FIR on

18/08/2005 that the present story has been created by PW-3 and

PW-7. There is move to falsely implicate the appellant specially

when Nizamuddin is son-in-law and PW-3-Abdul Latif is friend of

the deceased. There is also variation in the story that the

deceased died at site or while in transit to the hospital or at

hospital. In this regard, there is also variation in the statements of

the Jon Singh, Hukum Singh (SI) and Ghanshyam (Jeep Driver).

If we rely upon the statement of PW-3 and PW-7, it appears that

two gun shots were filed by Sajid and only gun shot was fired by

the appellant. Once Sajid and Ashik are exonerated and acquitted

of the charges, the whole story collapses and the benefit of doubt

has to go in favour of the appellant and in the facts and

circumstances when the story stated by the eye-witnesses PW-3

and PW-7 collapses and is not in accordance with FIR (Ex.-P.2),

the whole story also collapses when the learned trial court itself

finds that no case is made out against the appellant under Section

3/25 of the Arms Act.

10. From a bare perusal of the statement of witnesses, it is

observed that there are variations and contradictions in their

statements. The star witnesses have not supported the

prosecution story. The important witnesses like PW-3 and PW-7

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are interested witnesses and relatives of the deceased and on

account of the contradictions and on account of acquittal of co-

accused, such statements appear to be not reliable. Even the

prosecution is coming up with two stories, one at the time of

investigation and the other during the course of trial which itself

makes the case of prosecution totally doubtful.

11. PW-19 and PW-22, who were witnesses to the recovery of

revolver, have turned hostile that has also collapsed the entire

story. The statements of both the eye-witnesses in the findings

given by the learned trial court give benefit of doubt to the

appellant that eye-witnesses were not present at the time of

incident an have falsely implicated the appellant in the back

ground of previous grievance of filing FIR. Therefore, this Court is

inclined to allow this appeal.

12. Accordingly, the present criminal appeal is allowed. The

impugned judgment of conviction and sentence dated 30/03/2009

passed by the learned Additional Sessions Judge No.2 (Fast

Track), Kota in Sessions Case No.03/2006 qua the appellant no.1-

Chintu @ Aslam Sher Khan is set aside and he is acquitted of

offence under Sections 302, 302/34 IPC and Section 3/25 Arms

Act.

13. The appellant no.1- Chintu @ Aslam Sher Khan is in jail. He

be released forthwith, if not required in any other case.

14. Keeping in view, the provisions of Section 437A Cr.P.C., the

appellant No.1 is directed to forthwith furnish a personal bond in

the sum of Rs.50,000/- and a surety bond in the like amount,

before the trial court, which shall be effective for a period of six

months to the effect that in the event of filing of Special Leave

Petition against the judgment or for grant of leave, the appellant

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No.1, on receipt of notice thereof, shall appear before the Hon'ble

Supreme Court.

                                   (SAMEER JAIN),J                                          (PANKAJ BHANDARI),J

                                   RAGH/









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