Shani @ Niyamat vs State Of Rajasthan Through Pp
2023 Latest Caselaw 1065 Raj/2

       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

(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

(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

(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.

(5 of 13) [CRLA-437/2017]

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 @

(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.

(7 of 13) [CRLA-437/2017]

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

(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.

(9 of 13) [CRLA-437/2017]

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

(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

(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

(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.

(13 of 13) [CRLA-437/2017]

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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