Shahjad Khan vs State (2023:Rj-Jd:26140-Db)
2023 Latest Caselaw 6020 Raj

[2023:RJ-JD:26140-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 396/2008

Shahjad Khan s/o Liakat Khan, by caste Kaiyamkhani, R/o Degana Junction, District Nagaur.

(At present lodged in Central Jail at Ajmer)

----Appellant Versus The State of Rajasthan

----Respondent

For Appellant(s) : Mr. Nishant Bora For Respondent(s) : Mr. B.R. Bishnoi, PP

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Judgment

Reportable 18/08/2023(Per Hon'ble R.P. Soni, J.)

1. This is an appeal against the judgment dated 15.05.2008

passed by the learned Additional Sessions Judge (Fast Track),

Nagaur in Sessions Case No.45/2006 (pertaining to F.I.R.

No.59/2006 Police Station Kuchera), whereby the accused

appellant (in short "the appellant") was convicted under Section

302 of the Indian Penal Code (in short "the Code") and was

sentenced to life imprisonment and to pay fine of Rs.15,000/- with

a default clause.

2. The case of the prosecution is unfolded by a report (ExP-1)

lodged by Bhanwar Singh (PW-1) on 09.06.2006 at about 4:00

p.m. at the place of occurrence before the S.H.O. of Police Station

to the effect that his son Jitendra Singh (deceased) had gone to

"Roll" village to attend the marriage of his friend, along with his

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friends namely Chandra Prakash (PW-2), Naresh Choudhary

(PW-4), Ram Lal (PW-5), Harish Kumawat @ Pappu Ram (PW-6)

and Sanjay Binda (PW-7). They hired a bolero jeep of appellant

Shahjad Khan which was being driven by the appellant himself. At

about 2:00 p.m. in the noon, complainant received a telephonic

call at the shop of his neighbour and was informed by Chandra

Prakash (PW-2), that while returning back, appellant Shahjad

Khan was driving the jeep negligently. This led to a heated

argument between Jitendra Singh and appellant. Thereafter, all of

them left the jeep on the way and resumed their further journey

on foot. After walking about a kilometer, they saw that appellant

Shahjad Khan was coming from the opposite direction in his jeep,

intending to hit them. They all saved themselves by moving to the

side of road but Shahjad Khan intentionally hit Jitendra Singh

resulting in serious injuries and that caused his death on the spot.

On receiving such information, complainant along with Jethmal

(PW-3), Om Prakash, Kushal Singh (PW-10), Mahendra Singh

(PW-8) reached at the place of occurrence and found that his son

Jitendra Singh had received serious injuries and as a result of

which he had died. It was alleged that appellant has intentionally

murdered Jitendra Singh hitting him with his vehicle.

3. On being received of the F.I.R., the matter was investigated

into and upon completion of the investigation, charge-sheet was

filed in the concerned Court of Magistrate thereafter, the case was

committed to the Sessions Judge. Charge under Section 302 of

the Indian Penal Code was then framed against the appellant to

[2023:RJ-JD:26140-DB] (3 of 17) [CRLA-396/2008]

which he pleaded not guilty and claimed to be tried. Consequently,

trial began against the appellant.

4. During trial, prosecution examined as many as 17 witnesses

and exhibited 37 different documents. The appellant was then

examined under Section 313 of the Criminal Procedure Code and

questions were put to him what appeared against him in the

evidence of the prosecution to which he, however, plainly denied

of having any role in the alleged crime. He produced one witness

in his defence.

5. The trial court while relying upon the testimony of eye

witnesses namely Chandra Prakash (PW-2), Naresh Choudhary

(PW-4), Ram Lal (PW-5), Harish Kumawat @ Pappu Ram (PW-6)

and Sanjay Binda (PW-7), the medical evidence which has been

found to be consistent with the ocular evidence as well as the

motive of the appellant, convicted and sentenced the appellant as

indicated above. Hence, this appeal.

6. Mr. Nishant Bora, learned counsel for the appellant has

contended that impugned judgment passed by learned trial court

is against law and facts, not sustainable in the eyes of law and

deserves to be set aside as learned trial court has erred in

convicting and sentencing the appellant. He urged that the

conviction of the appellants as recorded by the trial court is

based purely on conjectures and surmises and the impugned

judgment suffers from lacunae and perversity, hence, the

same should be quashed and set aside. He, implored the

court to accept the appeal and acquit the appellant of the

charges. Learned counsel for the appellant further submits that

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the prosecution has suppressed the true story regarding the way

in which the present occurrence has taken place and merely on

the basis of evidence of interested witnesses, judgment of the

conviction has been passed without looking into other material

available on record.

7. It is further argued that the post-mortem report and injuries

sustained by the deceased do not corroborate the prosecution

version since deceased received fracture on the thigh. Thereafter

while falling on the ground by hit, he received other injuries on

the head and other parts of the body. As per the post-mortem

report, he also received fracture of hyoid bone and defence

witness Dr. N.S. Kothari, regarding this injury, has stated that this

fracture can only be caused by strangulation or by causing injury

by a lathi on the neck; that deceased received six injuries in all

out of which four were fractures; that he received three types of

injuries namely primary impact, secondary impact and running

over injuries which have been very well explained by Dr. N.S.

Kothari (DW-1) who was produced in the defence and there was

no reason to disbelieve his deposition; that above contradictory

medical opinion available on record creates a serious doubt as to

whether deceased died due to hit or he was beaten earlier and

thereafter camouflage the occurrence to be one of vehicle hit

case.

8. It is further argued that the site plan prepared by the

investigating officer does not corroborate the version of the eye-

witnesses since deceased did not receive any injury from the

thorny bushes where he had fallen after being hit by the jeep.

[2023:RJ-JD:26140-DB] (5 of 17) [CRLA-396/2008]

9. The next contention of the learned counsel for the appellant

is that mechanical report of the vehicle also does not corroborate

the versions stated by the eye-witnesses. It is further argued that

there are material contradictions and omissions on the major

portion of the evidence which also creates a serious doubt upon

the prosecution story.

10. It is further argued that investigation was started very much

prior to the lodging of the FIR and FIR was also sent to the

concerned Magistrate after delay. Neither the investigation agency

has tried to picked up moulds of the marks of the tyre of jeep and

no blood was found at the place of occurrence. The dead body was

also shifted to another side of the road prior to the arrival of police

on the spot. All these circumstances create a serious doubt in the

prosecution story.

11. Lastly, it is argued that on the basis of above facts and

circumstances prosecution has failed to prove its case beyond

reasonable doubt and appellant has been implicated falsely in the

case whereas the actual manner in which occurrence has taken

place has neither been stated by the witnesses nor the

investigating officer has investigated into. He, therefore, submits

that under such circumstances conviction and sentence of the

appellant cannot be sustained and, therefore, impugned judgment

passed by the trial court should be set aside and appellant be

acquitted.

12. In support of his submissions, learned counsel for the

appellant relies upon following decisions:-

[2023:RJ-JD:26140-DB] (6 of 17) [CRLA-396/2008]

1. Ram Narain Singh and Ors. Vs. State of Punjab (AIR 1975 SC 1727)

2. Amar Singh and Ors. Vs. State of Punjab (AIR 1987 SC 826)

13. Per contra, learned Public Prosecutor for the State has

argued that there was a strong motive of appellant to commit the

alleged offence. As per all eye-witnesses, appellant had developed

inimical terms towards Jitendra Singh (deceased) during the

course of journey because of the manner in which the appellant

drove his vehicle and tried to endanger lives of passengers and

protest raised by them. As per him, in fact there are no

contradictions in the statements of the prosecution witnesses and

their depositions before the trial court were almost similar to one

recorded in their statements made under Section 161 of the

Criminal Procedure Code; that statements of eye-witnesses are

corroborated by medical evidence and, therefore, version of all the

eye-witnesses are consistent and reliable.

14. It is further argued that from the evidence led by

prosecution, it can be safely inferred that it was the appellant only

who had murdered Jitendra Singh, therefore, after appreciating all

materials and evidence available against the appellant, learned

trial court was right in convicting and sentencing him under

Section 302 of the Indian Penal Code.

15. We have heard the learned counsel for the parties and

perused the materials available on record including the trial court

record.

16. From a perusal of the First Information Report lodged by

Bhanwar Singh (PW-1), it was reported that Jitendra Singh was

[2023:RJ-JD:26140-DB] (7 of 17) [CRLA-396/2008]

severely injured upon being hit by a vehicle and he succumbed to

the injuries. As per the prosecution case Chandra Prakash,

Naresh, Ram Lal, Harish @ Pappu Ram and Sanjay Binda were

eye-witnesses to the jeep intentionally hitting the deceased.

17. In his deposition before the trial court, Chandra Prakash

(PW-2) stated that he along with Naresh, Ram Lal, Harish @

Pappu Ram and Sanjay Binda went to "Roll" village to attend a

wedding of his friend Jagdish Prashad by hiring vehicle of

appellant.

18. While returning back, appellant was driving his vehicle at a

very high speed and negligently; They had a narrow escape from

overturning of vehicle just before reaching Mundwa village;

Jitendra Singh was sitting next to the appellant on front seat of

the vehicle; He and his friends requested the appellant to drive

vehicle slowly.

19. It is further deposed that again, the vehicle was saved from

over turning near Jhunjala village also. There was an altercation

between appellant and Jitendra Singh as well as his friends for his

negligent driving. They all told appellant to let them alight at that

spot itself and also stated that they would proceed further on foot.

Even then, appellant did not pay any attention to their request;

Later, all of them got down from the vehicle near Firozpura. On

this, appellant threatened them saying that he would teach them a

lesson; after getting down from vehicle of the appellant when they

were walking on foot towards Kuchera village, at that point of time

appellant brought his vehicle back from side of Kuchera village. He

was driving his vehicle deliberately towards them with intention of

[2023:RJ-JD:26140-DB] (8 of 17) [CRLA-396/2008]

murdering them. When they saw vehicle of appellant coming down

the road towards them, they all started running to side of the road

and hide behind an acacia tree, however, Jitendra Singh got hit by

the vehicle and received serious injuries.

20. It is further deposed that due to the collision, Jitendra Singh

bounced and fell 20-30 feet away. The vehicle collided with

Jitendra Singh from front side. Jitendra Singh was unable to speak

after the collision; When they come back on the road, appellant

again attempted to run over the vehicle but they saved

themselves. They went to Jitendra Singh and found that his heart

was still beating. In an effort to save his life, Jitendra Singh was

picked up and moved to other side of the road. While waiting for

another vehicle to arrive, Jitendra Singh died on the spot; had

they not hidden themselves behind the tree and saved

themselves, appellant would likely have killed them as well.

21. According to the prosecution, other witnesses Naresh (PW-4)

Ram Lal (PW-5), Papu Ram @ Harish (PW-6) and Sanjay Binda

(PW-7) were present at the time of the incident, they have also

given their statements describing the events like Chandraprakash.

22. The injuries on the person of the deceased has pointed out

by Dr. Tilak Raj (PW-15) are as under:-

              (1)    Bruise   10 x 6 cm.           Middle of right thigh

              (2)    Bruise   12 x 6 cm.                   Middle 1/3 of
              left                                         thigh

              (3)    Bruise   8 x 4 cm.            Right Franto parietal
                                                         region of skull.
                                                         Fracture
              present

              (4)    Bruise   6 x 4 cm.            Right side of neck
                                                   interior & fracture of




 [2023:RJ-JD:26140-DB]                  (9 of 17)                       [CRLA-396/2008]


                                                   Hyoidbone

             (5)   Bruise     8x4       cm.        Left side of neck

             (6)   Bruise     10 x 6 cm.           Left franto parietal
                                                          region of skull.

23. As per the doctor, all above injuries were anti-mortem in

nature. The cause of death was stated to be, due to head injury

along with fracture of right and left femur, leading to hemorrhage

and shock.

24. Other witnesses Jethmal (PW-3), Mahendra (PW-8), Kushal

Singh (PW-10) had supported the statement of eye-witnesses on

material particulars though they were not strictly eye-witnesses.

25. Although Dungar Ram (PW-9) has been declared hostile but

he has definitively proven several facts including when he was

riding his bicycle a car overtook him leading to an accident; he

saw six persons walking towards Kuchera; speed of the car was

out of control; four or five persons were going on the side of road

and one of them was hit by car; car also took U-turn; he could not

identified the accused. Because of this part of deposition, he was

declared hostile but identity of accused is proved by evidence of

the eye-witnesses since it is not disputed that appellant, deceased

and eye-witnesses knew each other as they belonged to the same

village and had worked together earlier.

26. Before embarking on examining the evidence brought on

record, it may be recalled that in the defence, appellant has

admitted to having taken Jitendra Singh, Chandra Prakash,

Naresh, Ram Lal, Harish @ Pappu and Sanjay Binda as a

passenger in his rented vehicle. His explanation under Section 313

of the Criminal Procedure Code was that all these persons had

[2023:RJ-JD:26140-DB] (10 of 17) [CRLA-396/2008]

consumed liquor leading to an altercation among them. Due to

drunkenness of these persons, appellant had get them out of his

vehicle and did not go back to them. Death of Jitendra Singh was

not due to being hit by vehicle driven by the appellant but rather

his friends might have killed him.

27. The object of examination under Section 313 of the Cr. P. C.

is to give accused an opportunity to explain case made out against

him. This statement can be taken into consideration in judging his

innocence or guilty where there is an onus on the accused to

discharge. It depends upon circumstances of each case whether

such statement discharges the onus or not. Object is to permit

him to put forward his own version and reasons, if he so chooses.

This is the statement which the accused makes without fear or

without impinging upon right of other party to cross-examine him.

However, if the statements made are found to be false, the Court

is entitled to draw adverse inference and pass consequential

orders as may be called for in accordance with law.

28. Once such a statement is recorded, the next question that

has to be considered by the Court is to what extent and

consequence such statement can be used. The statement of

accused can be used to test the veracity of the exculpatory nature

of admission if any, made by the accused. It can be taken into

consideration in any trial but still it is not strictly an evidence in

the case. The provisions of Section 313(4) of the Cr.P.C. provides

that the answer given by the accused may be taken into

consideration in such a trial and put in evidence against the

accused in any other inquiry or trial which tend to show that he

[2023:RJ-JD:26140-DB] (11 of 17) [CRLA-396/2008]

has committed the crime. The Courts may rely upon the portion of

statement of accused and find him guilty in consideration of other

evidence against him led by the prosecution, however, such a

statement made under this section should not be considered in

isolation but in conjunction with evidence adduced by the

prosecution. In view of the above principles, effect of explanation

given by the accused shall be considered in later part of this

judgment.

29. First argument of learned counsel for the appellant is in

respect of suppression of genesis and origin of the incident. On

basis of material available on record, we are of the view that there

is no reason to disbelieve the evidence of eye-witnesses Chandra

Prakash, Naresh, Ram Lal, Harish @ Pappu and Sanjay Binda, who

have corroborated each other on all material aspects of the case

and clearly stated that they witnessed appellant hitting Jitendra

Singh at the time of occurrence. The trustworthy evidence is

available on record given by these eye-witnesses corroborated by

medical evidence and other formal evidence of various memos

prepared by the Investigating Officer and there was no reason for

eye-witnesses to give false statements. They have been

thoroughly cross-examined by the defence but their testimony has

not been shattered.

30. Therefore, the contention of defence is not found to be

proved that prosecution has suppressed true story or genesis of

occurrence for which the prosecution becomes vulnerable. This

submission of Shri Nishant Bora, learned counsel for appellant is

[2023:RJ-JD:26140-DB] (12 of 17) [CRLA-396/2008]

not tenable and is not substantiated by evidence available on

record that prosecution witnesses had improved their case.

31. Contrary, it is proved that deposition of eye-witnesses before

the trial court is almost similar to what they had stated before the

police in their statements recorded under Section 161 of the

Cr.P.C. This being the position, prosecution witnesses are wholly

reliable so as to arrive at conclusion that accused is author of the

crime and it is proved that death of Jitendra Singh was caused

because of injuries he suffered by hitting of the jeep being driven

by the appellant.

32. The place and manner of occurrence alleged by prosecution

is corroborated by site plan (ExP-2) as well as statement of

mechanical inspector Surendra (PW-14) and mechanical report

(ExP-28). The site plan of the crime scene prepared by the

investigation officer reflects and corroborates the version

appearing in ocular evidence. Investigation officer Chotu Ram

(PW-17) has proved entire investigation and nothing adverse

could be elicited by defence in his cross-examination.

33. The next argument advanced to demolish testimony of eye

witnesses is that witnesses were close friends to deceased and as

such were interested witnesses. It is not acceptable at all.

Presence of eyewitnesses at the spot can not be doubted. On the

point of interested witnesses, the law is well settled. Evidence of

interested witnesses cannot be rejected on the sole ground that

the witnesses are interested witnesses but the Court has to

scrutinize evidence of interested witnesses with care and caution.

The statements made by Chandra Prakash, Naresh, Ram Lal,

[2023:RJ-JD:26140-DB] (13 of 17) [CRLA-396/2008]

Harish @ Pappu and Sanjay Binda inspire confidence. The

statements of friends of deceased are found to be reliable since

these are duly corroborated and supported by other documentary

evidence produced by the prosecution including medical and other

formal evidence. Since their evidence is found trustworthy, it

cannot be discarded on said score. For the reasons aforesaid,

evidence of all the eye witnesses is convincing, reliable and

trustworthy. It may also be pointed out that close friend of

deceased are, in fact, best witnesses who would naturally like to

ensure that real culprits do not escape.

34. So far as intention of appellant is concerned, overall evidence

leaves no doubt that all the eye-witnesses traveling in jeep were

not on good terms with appellant. A dispute had arisen between

them regarding the manner in which accused was driving the

vehicle. On scanning of the evidence available on record as a

whole, it is amply proved that the appellant caused fatal injury to

Jitendra Singh as he and his friends had scolded appellant for his

reckless driving and declined to travel further in the vehicle of the

appellant. Thus, it is an established fact that parties had

developed strained relations during course of journey because of

that dispute. It is very much proved that the appellant hit Jitendra

Singh by a speeding jeep and inflicted injuries upon him resulting

into his death.

35. The hit by jeep to Jitendra Singh was premeditated. The

manner and vigor in which Jitendra Singh was hit and looking to

background of incident, it is proved that appellant followed

Jitendra Singh and his friends with clear intention to kill one or all

[2023:RJ-JD:26140-DB] (14 of 17) [CRLA-396/2008]

of them and Jitendra Singh was killed in a jeep collision. This

evidence itself goes a long way in proving case against appellant

Shahjad Khan.

36. In the aforesaid circumstances, it can be safely concluded

that the appellant had motive to cause death of the deceased.

37. On analysis of medical evidence produced, it is found that

the evidence of Dr. Tilak Raj, who held autopsy on dead body of

Jitendra Singh found that injuries inflicted were sufficient to cause

death. All the injuries were anti-mortem in nature and the cause

of death was due to hit injury and fracture of right thigh coupled

with hemorrhage and shock. Although defence has tried to prove a

different type of medical opinion by producing another medical

expert Dr. N.S. Kothari (DW-1) but we are of the opinion that no

importance could be attached to the evidence of Dr. N.S. Kothari

for the simple reason that no cross-examination was conducted

with the medical expert of prosecution Dr. Tilak Raj (PW-15) about

the nature of opinion given by Dr. N.S. Kothari.

38. Besides it, evidence of Dr. N.S. Kothari is based on document

only and he was not the person, who conducted autopsy on dead

body of deceased.

39. In case of different opinions of two doctors, this Court cannot

make a comparative assessment of different medical opinions to

decide which medical report is correct with regard to cause of

death. The argument of learned counsel for the appellant that as

per statement of eye-witnesses, Jitendra Singh fell down on his

head and that was result of his head injuries, hence, death due to

the collision should not be treated as proved, is devoid of any

[2023:RJ-JD:26140-DB] (15 of 17) [CRLA-396/2008]

merit. Any person, hit by a jeep, will naturally fall to the ground.

Dr. Tilak Raj (PW-15) has categorically deposed that it is possible

that injuries on person of the deceased could be caused if

deceased is struck by a vehicle and he fell down on the ground.

Therefore, we are of the view that homicidal death of Jitendra

Singh has been proved beyond all reasonable doubts by the

prosecution.

40. The another significant argument of learned counsel for the

appellant is that the investigation, in the present case, was started

prior to the lodgment of FIR and substantial progress was made in

the investigation much prior to lodgment of the FIR. According to

him, the police received the information about the incident vide

ExP-33 which was taken down in the Roznamcha and in fact it was

the real FIR and not the report ExP-1 submitted by complainant

Bhanwar Singh, therefore, the FIR as well as such investigation

were hit by Section 162 of the Criminal procedure Code. Learned

Public Prosecutor has opposed the contention raised by learned

counsel for the appellant.

41. In view of this Court, the said contention of learned counsel

for the appellant is not tenable. The FIR with details was

submitted by father of deceased to Chhotu Ram, S.H.O. of Police

Station Kuchera, on his arrival at spot of occurrence at 4:00 p.m.

upon which a formal FIR was registered at Police Station Kuchera

at 4:15 p.m. The investigating officer prepared the site plan at

4:15 p.m., therefore, it cannot be concluded that the substantial

progress had been made in the investigation even before lodging

of the FIR. Even otherwise, the entire case of the prosecution

[2023:RJ-JD:26140-DB] (16 of 17) [CRLA-396/2008]

cannot be thrown for this reason since police is obliged to be

diligent, truthful and fair in their approach and investigation. The

default or breach of duty, intentionally or otherwise, can

sometimes prove fatal to case of prosecution, therefore, said

argument of defence does not hold water.

42. Now, we proceed to discuss consequence of explanation

under Section 313 of the Cr.P.C. furnished by accused. In view of

the principles mentioned herein before, the explanation under

Section 313 of the Cr.P.C given by the accused is found

unacceptable because if, Jitendra Singh and his friends were

intoxicated, the appellant would have made them get down of his

vehicle as soon as they left "Roll" village. He has not furnished

explanation whether or not he received fare for the vehicle.

43. In this connection, report of mechanical inspection of vehicle

(ExP-28), the statement of mechanical inspector Surendra

(PW-14) are also relevant. As per the mechanical inspection report

(ExP-28) the left side bonnet and bumper of the vehicle was

dented as well as the front iron frame was also found broken.

There was no explanation of the accused in respect of the

statement of mechanical inspector as also about the mechanical

inspection report regarding the damage caused to the vehicle.

Only the appellant could have known the reason and occasion in

respect of the mechanical damage caused to his vehicle. In the

instant case, appellant could not give any explanation as to for

how his vehicle got damaged. Thus, presumption under Section

114 of the Evidence Act would be drawn that it was the appellant

only who committed murder of Jitendra Singh by hitting his

[2023:RJ-JD:26140-DB] (17 of 17) [CRLA-396/2008]

vehicle. The intensity of impact of hit can be gauged from the fact

that it was so vigorous and forceful that in a collision between a

human being and a jeep, front main iron parts of the jeep got

damaged.

44. In this case there was no need to collect moulds of the

marks of the tyre of jeep from the spot as the identity of the jeep

was certain.

45. In view of findings, we have reached on assessment of

evidence as also for weighty reasons pointed out by learned

counsel for the state, we agree with the trial court that

testimonies of all the eye-witnesses inspire confidence and the

same were rightly relied upon by learned trial court in recording

conviction and awarding sentence to the appellant. Thus, all the

eye-witnesses are found to be trustworthy. The conclusion reached

by the learned trial judge is neither irrational nor untenable. It can

safely be concluded that prosecution has successfully proved

charges against accused beyond reasonable doubt. There being no

infirmity nor any illegality in impugned judgment, it deserves to be

upheld by this Court.

46. Resultantly, appeal of appellant Shahjad Khan fails and the

same is hereby dismissed. The judgment and order dated

15.05.2008 passed by the learned trial court is upheld.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J

59-Payal/-

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