Hussain vs State
2022 Latest Caselaw 8932 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 407/1992

Hussain

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. L.D. Khatri For Respondent(s) : Mr. Vikram Sharma, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 04/07/2022 Pronounced on 08/07/2022

1. This Criminal Appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:-

"It is, therefore, humbly prayed that your Lordship may be pleased to accept this appeal and set aside the judgment of conviction and order of sentence dated 23.11.1992 and acquit him of the charges levelled against him."

2. This Criminal Appeal has been preferred against the

judgment dated 23.11.1992 in Sessions Case No. 83/1991

(12/91) passed by Sessions Judge, Jaisalmer convicting the

appellant under Section 307 I.P.C. and sentenced him to undergo

five years R.I. along with a fine of Rs. 5,000/- in default of

payment of which he was to further undergo 1 ¼ years R.I.; the

appellant was also convicted under Rule 3 read with Rule 6 of the

Passport (Entry into India) Rules, 1950 along with a fine of

Rs.200/- in default of payment of which he was to further undergo

(2 of 10) [CRLA-407/1992]

8 days imprisonment; though the appellant was acquitted of the

offence under Section 25 read with Section 27 of the Arms Act.

3. Brief facts of the case as placed before the Court by the

learned counsel on behalf of the appellant submits that it is the

case of the prosecution that on 22.8.1990, a police party of the

Border Security Force (B.S.F.) comprising Harpool Singh, Tej

Narain, Mahesh Kumar, Tejdan, Brijesh Kumar, Shreeram and

Hariram proceeded to arrange a blockade at the Dhanana post.

That the police party was further divided into sub-parties, and that

one of the sub-parties, comprising Harphoolsingh, Tej Narain and

Mahesh Kumar, at about 9 p.m. came upon four riders astride

camels, who were seen coming from the side of Pakistan. The

B.S.F. party flashed the torch light towards them, in response to

which the said intruders opened gun fire. This was countered by

the B.S.F. party, and one of the riders along with his camel were

injured as a result of the same. The other men dismounted their

camels and fled from the scene. And that, when Harphoolsingh

along with the other officers went near the injured person, he

disclosed his name to be Jiyant, R/o Mataron Ki Basti, and he also

disclosed the name of his associates as Hussain, Sattar and

Mohammed. He further stated that they were carrying silver from

Pakistan. Harphoolsingh passed on the said information to the

C.C.O. (Company Commander) Didarsingh who then arrived on

the spot and in whose presence, a search of Jiyant's person and

belongings were made. Upon the same, a recovery of 'Three Node

Three' (303) rifles, cartridges for the same, silver bars were

recovered among other things. Subsequently after investigation

(3 of 10) [CRLA-407/1992]

was completed, the police filed a charge sheet against the accused

for the offences under Section 307 I.P.C., Sections 25 and 27 of

the Arms Act, and Rules 3 and 6 of the Passport (Entry into India)

Rules, 1950.

4. Learned counsel for the appellant further submits that the

learned Court below has not taken into due consideration the

overall facts and circumstances of the present case, and the

evidences placed on record before it and, therefore, erred in

passing the impugned judgment.

5. Learned counsel for the appellant also submits that the

learned Court below has incorrectly considered the alleged

statement of Jiyant, who subsequently succumbed to his injuries,

as a dying declaration. And that it is evident from the medical

evidence that he was not in a fit condition to give a statement.

Furthermore, as per the evidence produced by the prosecution, he

was also charged as an accomplice.

6. Learned counsel for the appellant further submits that the

police officials are highly interested in the prosecution of the

accused, and hence, conviction on the basis of the alleged dying

declaration, obtained through the testimony of the police officials

is not sustainable in the eye of the law.

7. Learned counsel for the appellant further submits that the

other accused persons, namely Sattar and Mohammed have been

acquitted for the reason that their conviction could not be

recorded on the sole basis of the alleged dying declaration by

Jiyant.

(4 of 10) [CRLA-407/1992]

8. Learned counsel for the appellant also submits that although

it was held that the case of the present appellant is distinguished

from that of the co-accused, who were acquitted of all the charges

against them, on the ground that the petitioner has been

identified by the witness, Narain Tiwari, the appellant was not

known to Narain Tiwari, nor was any identification parade

arranged and carried out, and that a simple and plain

identification in the Court, is not sufficient for recording the

conviction of the appellant; and therefore the case of the appellant

is on the same footing as that of the co-accused.

8.1 Learned counsel for the appellant further submits that the

incident in question occurred during the night-time, and that it

cannot be clearly ascertainable that the appellant herein opened

gunfire on the B.S.F. party, and even if the same is to be believed

then the intention to do so on the part of the present appellant is

wholly absent.

9. Learned counsel for the appellant placed reliance on the

decision of the Hon'ble Apex Court rendered in the judgment of

Vasudev Vs. State of Madhya Pradesh (2022) 4 SCC 735

wherein the Hon'ble Apex Court held that the learned Trial Court

and the Hon'ble High Court of Madhya Pradesh erred in convicting

the accused under Section 307/34 I.P.C. read with Section 27 of

the Arms Act, as the ingredients under Section 307 I.P.C. were

found to be absent with respect to the accused in the said case.

Learned counsel further submitted that in the present case merely

because the accused opened retaliatory fire upon the police

authorities, it could not be construed to mean that intention or

(5 of 10) [CRLA-407/1992]

knowledge, as required for an offence under Section 307 IPC to be

made out, was present.

10. On the other hand, learned Public Prosecutor opposes the

submissions made on behalf of the appellant and submits that the

learned Court below has rightly passed the impugned judgment of

conviction after looking into the overall facts and circumstances of

the case, and after a thorough perusal of the evidences placed on

the record before it.

11. Learned Public Prosecutor further submits that on

22.08.1990 when Harphoolsingh, P.W. 1, Tej Narain, P.W. 4,

Mahesh Kumar P.W. 7 and Tej Dan, Brijesh Kumar Shri Ram and

Hari Ram along with others were patrolling the area around the

Dhanana outpost, they saw 4 men riding camels, at which point

they flashed their torchlight and the men opened fire on them.

And that, in retaliation, and to protect themselves the B.S.F. party

fired back, upon which one rider and his camel were injured. And

that, the other 3 riders dismounted their camels and fled the

scene on foot. And that when Harphoolsingh approached the

injured man along with other officers, the injured accused

revealed the names of his accomplices, and subsequently a

recovery of 303 Bore Rifles and cartridges, along with 125 Silli of

silver was made.

12. Learned Public Prosecutor also submits that P.W. 6, Gajendra

Kumar Parmar, the medical coroner who conducted the post

mortem report of the deceased Jiyant, stated that the post

mortem revealed that the deceased sustained bullet injuries to his

right shoulder, and chest, as a result of which his right lung was

(6 of 10) [CRLA-407/1992]

punctured and his clavicle bone was shattered. And that due to

excessive bleeding, Jiyant succumbed to his injuries and passed

away. And that the learned Court below rightly found that the

statement made by Jiyant, given the circumstances, were beyond

suspicion and therefore, could be relied upon.

13. Heard learned counsel for both parties and perused the

record of the case.

14. This Court observes that the learned Court below framed

issues, and answered them in the following manner:

14.1 The first issue being whether the four accused persons

astride camels opened gun fire at the B.S.F party and if yes, then

whether the same was done with an intention to kill, and also

whether the present accused-appellant, Hussain, was one among

those persons who opened said gun fire at the B.S.F party.

14.2 Upon a perusal of the testimonies of multiple witnesses, the

learned Court below rightly concluded that the four accused

persons astride camels entering India through Pakistan, opened

gun fire at the B.S.F party, when they had shone their torch lights

on them.

14.3 Although except Jiyant, while the other accused were not

apprehended on the spot, the statement given by Jiyant to

Harphoolsingh and the other officers, rightly treated as a dying

declaration, clearly points to the fact that Hussain, Sattar and

Mohammad were his accomplices in the incident in question.

14.3.1 The learned Court below further considered whether the

statement made by Jiyant could be brought within the purview of

(7 of 10) [CRLA-407/1992]

Section 30 of the Indian Evidence Act of 1872, but rightly found

that since Jiyant was no more, the requirement under Section 30

remained unfulfilled and therefore the statements would not fall

under the purview of the said Section 30 of the Act of 1872.

14.3.2 The learned Court below also considered whether Jiyant,

before succumbing to his injuries, was in a fit medical condition to

give a statement, and rightly found that since neither the medical

report nor the testimony of Dr. Devendrasingh P.W. 8 state or

point to any fact that in light of the injuries sustained by Jiyant, a

punctured lung and bullet wound to his right shoulder, he was not

in a position to make statements and that therefore, it was safe to

assume that he was in a position to speak and have made the

statements that he is said to have made.

14.3.3 This finding of the learned Court below is further fortified

by the testimonies of the witnesses, and therefore the learned

Court below has rightly found the statements of Jiyant to qualify

as a dying declaration under Section 32 (3) of the Indian Evidence

Act, 1872, to be admissible into evidence.

14.4 Furthermore, the learned Court below rightly held that that

although Harphoolsingh was unaware of the full name of the

accomplices, namely Hussain, Mohammad and Sattar, and

although he also was unaware of which villages they were from,

Tej Narain was able to identify the accused in open Court, and his

explanation for the same, which was rightly appreciated by the

learned Court below, that when the incident in question occurred,

he saw Hussain's face, when as part of the B.S.F. party he shone a

light on the faces of the four men riding atop their camels, and

(8 of 10) [CRLA-407/1992]

that is how he was able to recognize the faces of the accused-

appellant herein.

14.5 This Court also observes that the learned Court below has

also rightly found that, on the basis of the testimonies of

witnesses, Hussain was among those persons who opened fire on

the B.S.F. party and the fact that he opened fire at the officers of

the B.S.F. party, in the direction from which the torch light was

flashed at them, and therefore the offence under Section 307

I.P.C. is made out against Hussain.

15. The learned Court below framed the second issue, being

whether the accused appellant herein was carrying the firearms in

question without a license for the same.

15.1 On the said issue, the learned Court below rightly found that

the fact that the accused-appellant was carrying the 303 Bore

Rifles, has been established, and that from among the recovery

made from the accused, no license for the same was discovered

and therefore, it fairly concluded that the accused-appellant did

not have a license for the weapons he was so carrying.

16. The learned Court below proceeded to frame the third and

final issue; whether the accused-appellant entered India without a

valid passport.

16.1 In answering the above question, the learned Court below

found that from the accused, along with a recovery of arms,

ammunition, and silver; the concerned authorities also found

receipts, at Ex. P/7 and Ex. P/17, from a shop located in Pakistan.

And, under such circumstances, that he entered into India riding

(9 of 10) [CRLA-407/1992]

on a camel, through shops bearing addresses of Pakistan, and

safely assumed that looking into the same, the accused-appellant

entered India without a valid passport.

17. This Court finds that the judgment rendered by the Hon'ble

Apex Court in Vasudev (supra), as cited by learned counsel for

the appellant does not apply to facts and circumstances of the

present case. In the said case, the version of the prosecution was

not corroborated by the testimonies of the witnesses, nor was the

prosecution able to sufficiently establish through evidences placed

on record that the accused therein had the intention or

knowledge, as required under for the offence under Section 307

I.P.C. and subsequently the accused in the said case had also

surrendered before the concerned police authorities. Whereas, in

the present case, the testimonies of the witnesses corroborate the

version of the prosecution, and the accused did not surrender but

sought to evade the B.S.F. authorities after opening fire on them.

Furthermore, the intention and knowledge, requisites for an

offence under Section 307 I.P.C., is made out against the accused,

as above mentioned, and at the cost of repetition is stated that

since the accused herein opened fire directly at the B.S.F.

personnel, and when the party shone their torch light on them,

and was clearly identified as well by the witness, Narain Tiwari.

17.1 Furthermore, in Vasudev (supra), the Hon'ble Apex Court

arrived at the finding, as discussed above, after a careful

consideration of the evidences placed on record, and arrived at the

conclusion that the prosecution had failed to prove its case beyond

(10 of 10) [CRLA-407/1992]

reasonable doubt. However, such is not the case in the present

appeal.

17.2 Therefore, the facts and circumstances of the case in

Vasudev (supra) are peculiar to the said case, and are wholly

inapplicable to the present case, and both are therefore, not on an

equal footing.

18. This Court, in light of the above made observations, finds

that the impugned judgment passed by the learned Court below

does not suffer from any legal infirmity, and therefore, no cause

for interference by this Court is made out.

19. This Criminal Appeal is hereby dismissed, for the reasons

above mentioned. All pending applications are disposed of.

Records of the learned court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

34-Skant/-

Powered by TCPDF (www.tcpdf.org)