Rajasthan High Court
Shaukat Ali And Ors vs State Of Rajasthan Through Pp on 12 December, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:37110-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 817/2013
1. Shaukat Ali son of Bashrat Khan
2. Shakila Bano wife of Liyakat Ali
3. Abid Ali son of Ummed Khan
all residents of Chainpura, Police Station, Malsisar, District
Jhunjhunu (Rajasthan) (At present confined in District Jail,
Jhunjhunu)
----Appellants
Versus
The State Of Rajasthan Through Public Prosecutor
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 259/2023
Liyakat Khan Son Of Bashrat, Aged About 50 Years, Resident Of
Chainpura, Police Station Malsisar, District Jhunjhunu
(Rajasthan). At Present Confined In District Jail Jhunjhunu.
----Appellant
Versus
State Of Rajasthan, Through Public Prosecutor.
----Respondent
For Appellant(s) : Mr. Amil Ali, Adv. for appellant Nos.1
Mr. Rahul Sharma, Adv. on behalf of
Mr. Rajneesh Gupta, Adv. for
appellant No.2 in Crl.A. No.817/2023
Mr. Girraj Prasad Gadhwal, Adv. for
appellant in Crl.A. No.259/2023
For State : Mr. Javed Chaudhary, Addl.G.A.
For Complainant(s) : Mr. D.V. Tholia, Adv. with Mr.
Himanshu Tholia in Crl.A.
Ms. Karishma Rathore, Adv. for Mr.
Arun Singh Shekhawat, Adv. in Crl.A.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
[2023:RJ-JP:37110-DB] (2 of 14) [CRLA-817/2013]
Judgment
RESERVED ON :: 28/11/2023
PRONOUNCED ON :: 12/12/2023
(Per - Hon'ble Pankaj Bhandari, J.)
1. Accused appellants - Shaukat Ali, Shakila Bano and Abid Ali
have preferred D.B. Criminal Appeal No.817/2023 titled as
Shaukat Ali & Ors. Versus State of Rajasthan through PP aggrieved
by the judgment of conviction and order of sentence dated
31.10.2013 passed by the Additional Sessions Judge No.2,
Jhunjhunu whereby the appellants have been convicted for offence
under Sections 302, 302/120-B of Indian Penal Code (hereinafter
referred to as "IPC") and sentenced as under:-
(i) Accused appellants - Shaukat Ali and Abid Ali each
have been sentenced for offence under Section 302 of IPC
for rigorous life imprisonment and a fine of Rs.10,000/-; in
default of payment of fine, to further undergo 1 year simple
imprisonment each.
(ii) Accused appellant - Shakila Bano has been sentenced
for offence under Section 302/120-B of IPC for rigorous life
imprisonment and a fine of Rs.5,000/-; in default of payment
of fine, to further undergo 1 year simple imprisonment.
2. Accused appellant - Liyakat Ali has preferred D.B. Criminal
Appeal No.259/2023 titled as Liyakat Ali Versus State of Rajasthan
through PP aggrieved by the judgment of conviction and order of
sentence dated 29.08.2023 passed by the Additional Sessions
Judge No.2, Jhunjhunu, whereby he has been convicted for the
[2023:RJ-JP:37110-DB] (3 of 14) [CRLA-817/2013]
offence under Section 302 read with Section 120-B of IPC and
sentenced for life imprisonment and a fine of Rs.5,000/-; in
default of payment of fine, to further undergo 6 months simple
imprisonment.
3. Succinctly stated the facts of the case are that on
15.01.2010, complainant - Banwari Lal submitted a written report
alleging therein that on 14.01.2010 in the mid night at 12:00 they
were holding a meeting with regard to elections, when Liyakat Ali
and Shaukat Ali came and asked his brother - Jai Singh to come
for a meeting, upon which, he along with his brother went to their
house. Liyakat Ali and Shaukat Ali told him to go home and that
Jai Singh would return after sometime. In the morning, it was
revealed that Jai Singh was murdered by Liyakat Ali, Shaukat Ali
and other persons and the dead body was lying in their house. On
the basis of the said written report, FIR bearing No.5/2010 was
registered for offence under Section 302 of IPC.
4. The police after due investigation filed charge-sheet against
accused appellants - Shaukat Ali, Abid Ali and Shakila Bano and
kept the investigation pending under Section 173(8) of Cr.P.C. with
regard to accused appellant - Liyakat Ali. Learned Trial Court
framed charges against accused appellants - Shaukat Ali, Abid Ali
for offence under Sections 302 or 302/120-B of IPC and against
accused appellant - Shakila Bano for offence under Section
302/120-B of IPC. Accused appellants - Shaukat Ali, Abid Ali and
Shakila Bano denied the charges and sought trial, upon which, 19
witnesses were examined and 91 documents were exhibited on
[2023:RJ-JP:37110-DB] (4 of 14) [CRLA-817/2013]
behalf of the prosecution. In defence, Exhibit-D1 to Exhibit-D3
were exhibited. Accused appellants - Shaukat Ali, Abid Ali and
Shakila Bano were examined under Section 313 Cr.P.C. wherein
they denied the allegations levelled against them. Learned Trial
Court after hearing the arguments has convicted and sentenced
the accused appellants - Shaukat Ali, Abid Ali and Shakila Bano as
stated above, aggrieved by which, they have preferred D.B.
Criminal Appeal No.817/2013.
5. Accused appellant - Liyakat Ali was arrested when he
returned from abroad. Additional charge-sheet was filed against
him. He was charged for offence under Section 302/120-B of IPC.
He denied the charges and sought trial, upon which, 15 witnesses
were examined, 68 documents were exhibited and 7 articles were
produced on behalf of the prosecution. Accused appellant -
Liyakat Ali was examined under Section 313 Cr.P.C. Learned Trial
Court after hearing the arguments has convicted and sentenced
accused appellant - Liyakat Ali as stated above, aggrieved by
which, he has preferred D.B. Criminal Appeal No.259/2023.
6. Since both the appeals arise out of a common FIR, they are
being decided together. However, since separate trial took place
with regard to accused appellant - Liyakat Ali and separate
evidence was adduced, we would deal with the evidence
separately.
7. It is contended by learned counsel appearing for accused
appellant - Shaukat Ali that the dead body was recovered from
the house of Liyakat Ali. The recovery of gun does not connect
[2023:RJ-JP:37110-DB] (5 of 14) [CRLA-817/2013]
Shaukat Ali with the alleged offence as it was not established that
the pellets, which were fired, were fired from the recovered gun.
It is also contended that the pellets were not recovered from the
body of the deceased and therefore, same could not be sent to
FSL for examination and nor could be matched with the cartridges
recovered from Shaukat Ali. It is further contended that there was
no blood group found matching to establish that the blood stains
found on the shirt recovered at the instance of Shaukat Ali was
having blood of the deceased.
8. It is contended by learned counsel appearing for accused
appellant - Abid Ali that in the initial FIR, name of accused
appellant - Abid Ali was not mentioned. It is also contended that
as per the version of the prosecution, the sword was already
washed before it was recovered. The report of the FSL that it was
having human blood thus, cannot be believed.
9. It is contended by learned counsel appearing for accused
appellant - Shakila Bano that recovery of 2 mobile phones at her
instance would not connect her with the alleged offence. There is
no allegation that she inflicted any injury to the deceased. It is
also contended that offence of criminal conspiracy is not made out
and the conviction with the aid of Section 120-B of IPC was not
justified. It is further contended that no Certificate under Section
65-B of the Evidence Act was produced to establish that the
mobiles, which were recovered at the instance of accused
appellant - Shakila Bano, were used. It is further contended that
it was not established that mobiles which were recovered at the
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instance of accused appellant - Shakila Bano, belonged to the
deceased as no identification by any family member of the
deceased was done. It is contended on behalf of accused
appellants - Shaukat Ali, Abid Ali and Shakila Bano that the
deceased died in the gallery in front of the house of accused
appellant - Liyakat Ali and it is a clear case of the accused
appellants that someone fired from outside.
10. It is contended by learned counsel appearing for accused
appellant - Liyakat Ali that he was living abroad, which fact has
been admitted by the Investigating Officer. It is not established
that on the date of the alleged offence, Liyakat Ali was in the
village. It is also contended that the Certificate produced on behalf
of the prosecution wherein it is mentioned that Liyakat Ali came to
India on 13th January, became a member of unlawful assembly on
14th January and after committing the alleged offence, left India
on 16th January, is not established as the person, who has given
the Certificate, has not been examined before learned Trial Court.
It is further contended that the deceased was having relations
with the wife of Liyakat ali and when Shaukat Ali told him to stay
away from Shakila Bano, a dispute took place, on which Shaukat
Ali opened fire at the deceased. It is also contended that even
otherwise, no role has been assigned to Liyakat Ali with regard to
the injuries sustained by the deceased.
11. Learned counsel for the accused appellants have relied upon
the judgments in Sunil Kumar Sambhudayal Gupta (Dr.) & Ors.
Versus State of Maharashtra: 2011 (Suppl.) Cr.L.R. (SC) 562;
[2023:RJ-JP:37110-DB] (7 of 14) [CRLA-817/2013]
Ganesh Gogoi Versus State of Assam: 2009 Cr.L.R. (SC) 771;
Gambhir Versus State of Maharashtra: 1982 Cr.L.R. (S.C.) 275;
Sunil Kundu & Anr. Versus State of Jharkhand: 2013 Cr.L.R. (SC)
758; Bhalinder Singh @ Raju Versus State of Punjab: 1994
Cr.L.R. (S.C.) 62; State (Delhi Administration) Versus Shri
Gulzari Lal Tandon: 1979 Cr.R.L. (SC) 448; Subhash Chand
Versus State of Rajasthan: 2001 Cr.L.R. (SC) 670; Nasasaheb
Changdeo Nikam Versus The State of Maharashtra: Criminal
Appeal No.122 of 2018 decided by Bombay Bench at Aurangabad
on 06.11.2023; State Versus Nunshi Singh: Criminal Appeal
No.227 of 1984 decided by Rajasthan High Court on 16.04.2009
and Ramreddy Rajeshkhanna Reddy & Anr. Versus State of
Andhra Pradesh: 2006 Cr.L.R. (SC) 333.
12. Learned Additional Government Advocate and learned
counsel appearing for the complainant have opposed the appeals.
It is contended that there is specific evidence of Banwari Lal that
the deceased was called to the house of Liyakat Ali by Shaukat Ali
and Liyakat Ali and Banwari Lal was asked to leave on the pretext
that they would be talking with regard to voting. It is also
contended that Shaukat Ali was having arms license and the gun,
which was recovered at his instance, was licensed. There is
specific evidence of the Armour Department that the gun was
damaged and the report also suggests that Shaukat Ali was
having 50 live cartridges, out of which, 2 cartridges were used and
only 48 cartridges were recovered at his instance, which goes to
show that 2 gunshots were fired at the deceased, which is also
established from the medical evidence. It is also contended that
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the deceased has also sustained sharp injuries, which were caused
by sword and sword has been recovered at the instance of Abid
Ali, which is found to contain human blood. Since it was washed
before the recovery as is the case of prosecution, the blood
grouping could not be done. It is further contended that
bloodstained slippers of Shakila Bano were recovered from the
place of occurrence and mobiles were also recovered at her
instance, which were broken and thrown in the well. The fact that
they were in the well was only in the knowledge of Shakila Bano
and at her instance, they were recovered. It is also contended that
from the site report, it is evident that bloodstains were found in
the inner side of the house, on the floor as well as on the wall and
there was no possibility of opening fire from outside. Hence, the
prosecution has established the case against accused appellants -
Shaukat Ali, Abid Ali and Shakila Bano.
13. With regard to accused appellant - Liyakat Ali, it is
contended by learned counsel for the complainant that he came to
India only for the purpose of committing the alleged offence. All
the accused had planned the commission of the offence. Abid Ali
was armed with a sword, Shaukat Ali was armed with a licensed
firearm and they called the deceased at their house as is the
evidence of Banwari Lal. The defence now set up by Liyakat Ali
that Shaukat Ali opened fire upon the deceased as he was having
relationship with his wife, is clearly putting blame on Shaukat Ali
and setting up a new story, which was not there in the initial
defence as set up by Shaukat Ali, Abid Ali and Shakila Bano. It is
also contended that as there is ocular evidence of Banwari Lal with
[2023:RJ-JP:37110-DB] (9 of 14) [CRLA-817/2013]
regard to the deceased being called by Liyakat Ali and Shaukat Ali,
there was no necessity of producing evidence that Liyakat Ali was
present in village. It is further contended that the passport of
Liyakat Ali would have been a valid piece of evidence to establish
that Liyakat Ali was not in India on the date of the alleged offence.
This passport was in power and possession of Liyakat Ali and as
per Section 106 of the Evidence Act, it was the duty of Liyakat Ali
to establish that he was not in India on the date of the alleged
offence. The prosecution has thus clearly established the guilt of
accused appellant - Liyakat Ali and both the judgments of
conviction and orders of sentence are liable to be upheld.
14. Learned counsel for the Complainanat has placed reliance on
the judgments in Jayantilal Verma Versus State of M.P. (Now
Chhattisgarh): Criminal Appeal No.590 of 2015 and Balvir Singh
Versus State of Uttarakhand: Criminal Appeal No.301 of 2015.
15. We have considered the contentions raised by learned
counsel for the parties and have carefully gone through the
material on record.
16. The fact that the dead body was recovered from the house of
Liyakat Ali is not a disputed fact. The fact that the deceased
sustained 2 gunshot wounds and 2 live cartridges were missing
from 50 live cartridges recovered at the instance of Shaukat Ali is
also pointing towards the use of firearm by Shaukat Ali. The fact
that gun recovered from Shaukat Ali had been damaged so as to
make it non-serviceable is also established from the evidence of
the Armorer, who has stated that gun has been recently damaged.
[2023:RJ-JP:37110-DB] (10 of 14) [CRLA-817/2013]
The deceased was last seen with Shaukat Ali and Liyakat Ali.
Accused appellants - Shaukat Ali, Abid Ali, Shakila Bano and
Liyakat Ali were present at the time of the alleged offence as
Shakila Bano is wife of Liyakat Ali and at her instance, mobiles
were recovered and her bloodstained slippers were also found
near the dead body. The deceased has sustained sharp injuries by
sword and sword was recovered at the instance of Abid Ali.
Bloodstained shirt of Shaukat Ali has also been recovered, which
also points towards his involvement in the alleged offence.
17. The fact that Liyakat Ali was in India and in the village is
established from the evidence of Banwari Lal, who has deposed
that Liyakat Ali along with Shaukat Ali came to his house and took
away the deceased with them. He also accompanied the deceased
but both Liyakat Ali and Shaukat Ali told him that deceased would
return later, on which he left their house. Thus, the deceased was
left alone in the company of Shaukat Ali and Liyakat Ali. The
prosecution has produced the record as per which Liyakat Ali came
to India on 13th January and left India on 16th January, which could
have been rebutted by the accused by producing his passport. As
per the provisions of Section 106 of the Indian Evidence Act, the
best evidence was with Liyakat Ali and he could have established
by producing his passport that he was not in India on the date of
the alleged offence.
18. During the course of the arguments, this Court also
permitted accused appellant - Liyakat Ali to produce his passport
and assured that the same would be taken as additional evidence,
[2023:RJ-JP:37110-DB] (11 of 14) [CRLA-817/2013]
if it is established from the passport that he was abroad and that
this Court would consider the same, however, learned counsel for
the appellant - Liyakat Ali was unable to produce the passport.
Thus, there being evidence of the Home Department that Liyakat
Ali arrived in India on 13th January and left India on 16th January is
established; mere non-production of the person, who signed the
report, does not loose its importance. Even under Section 313
Cr.P.C., Liyakat Ali has only mentioned that he was not in the
village; he did not mention that he was not in India. He has also
mentioned that the dispute took place and his brother Shaukat Ali
fired upon the deceased, which goes to show that he was present
at the time of the alleged offence.
19. The recovery of firearm and cartridges was made at the
instance of Shaukat Ali. The fact that the deceased sustained 2
gunshot injuries and 5 cut wounds caused by sword is established
from the medical report. The fact of recovery of mobiles and
slippers of Shakila Bano points towards her involvement in the
alleged offence. The fact that dead body of deceased was
recovered from the house of Liyakat Ali; gunshot injury was
caused from inside the house; head pellets and bloodstains were
found in the house and that despite opportunity, Liyakat Ali failed
to produce his passport before this Court, points towards his
presence and involvement in the offence. All the accused
conspired and in pursuance of the conspiracy, deceased was
murdered, hence, offence under Section 120-B of IPC is clearly
made out against Shakila Bano and Liyakat Ali. Even though
Liyakat Ali and Shakila Bano have not caused any injury to the
[2023:RJ-JP:37110-DB] (12 of 14) [CRLA-817/2013]
deceased, their conviction with the aid of offence under Section
120-B of IPC cannot be said to be contrary to the evidence
available on record. Learned Trial Court has considered the entire
material on record and has rightly come to the conclusion that the
deceased was called by the accused and thereafter, they
committed the offence of murder. Since specific allegation has
been made against accused appellants - Shaukat Ali and Abid Ali,
learned Trial Court has not committed any error in convicting them
for offence under Section 302 of IPC.
20. The contention of learned counsel appearing for accused
appellant - Liyakat Ali that the dispute took place as the deceased
was having illicit relationship with his wife - Shakila Bano and
Shaukat Ali fired upon him, cannot be read against Shaukat Ali for
the very reason that this explanation was given under Section 313
Cr.P.C. in separate proceedings, in which Shaukat Ali was not a
party. However, this explanation points towards the involvement of
Liyakat Ali. The contention of learned counsel appearing for
Liyakat Ali that deceased was having relationship with Shakila
Bano as has been admitted by the Investigating Officer, cannot
also help Liyakat Ali for the very reason that this defence was set
up after the conviction of Shaukat Ali and the said defence was
not set up by accused appellants - Shaukat Ali, Abid Ali and
Shakila Bano. Liyakat Ali has clearly planned the offence, he came
to India on 13th January, became a member of unlawful assembly
on 14th January and thereafter, left India on 16 th January, which
goes to show that his only purpose for coming to India was to
murder the deceased.
[2023:RJ-JP:37110-DB] (13 of 14) [CRLA-817/2013]
21. The circumstances that:- the deceased was called by
Shaukat Ali and Liyakat Ali; his dead body was recovered from the
house of Liyakat Ali; the gunshot wounds and sharp edged injuries
were caused to him inside the house and the firing was also done
from inside the house of Liyakat Ali; accused Shaukat Ali tried to
destroy the evidence by damaging his gun; unused 48 cartridges
were recovered out of 50 cartridges, which were in possession of
accused Shaukat Ali; sword was recovered at the instance of Abid
Ali; bloodstained slippers of Shakila Bano were recovered from her
house and mobiles were also recovered at her instance; and
Liyakat Ali was present in India on the date of alleged offence and
was present at the place of occurrence, clearly make out a chain
of prosecution story so as to establish the guilt of the accused
appellants.
22. Consequently, we do not find any force in the appeals
preferred by the accused appellants and the same are accordingly
dismissed. Both the judgments of conviction and sentence passed
in separate appeals by the learned Trial Court are affirmed.
23. The appellants - Shakila Bano and Abid Ali, who are on bail,
their bail bonds stand cancelled and learned Trial Court is directed
to take necessary steps for taking the accused appellants -
Shakila Bano and Abid Ali in custody for serving the remaining
sentence.
24. Application for suspension of sentence bearing No.1411/2023
filed in D.B. Criminal Appeal No.259/2023 stands disposed of.
[2023:RJ-JP:37110-DB] (14 of 14) [CRLA-817/2013]
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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