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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
CRIMINAL APPEAL No. 933 of 2003
AYYUB KHAN
V/S
STATE
Date of Judgment : 15.12.2008
PRESENT
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.
Mr. SABIR KHAN for Mr. PRADEEP SHAH, for the appellant
Mr. JPS CHOUDHARY, PP, for the respondent
BY THE COURT : (PER HON'BLE GUPTA,J.)
By this appeal, the appellant seeks to challenge
his conviction and sentences imposed by the learned Addl.
Sessions Judge, (Fast Track), Bali vide judgment dated
6.8.2003, convicting him for the offence under Section 302
IPC, and sentencing to rigorous imprisonment for life, and
a fine of Rs.1000/- in default to undergo one month’s
further rigorous imprisonment.
The necessary facts are that on 17.12.2001 at
about 4.15 PM, one Han Mommamad lodged a written report at
Police Station Khinwada alleging that at about 1.00 in the
noon, he along with Umar Khan son of Jamsher Khan, and
Jamal Khan were returning from the house of his Tau, Hasan
Khan at Ranki Wala Well. At that time, his sister-in-law
(भ भ ) Smt.Rozatoon was coming from the opposite direction
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carrying a Tagari containing cow dung, when she reached
near Barloota Bala (water course), the appellant emereged
from the ambush, who was having his Kunt in his hand, he
started indiscriminately wielding injuries to Rozatoon.
She raised a cry, and rushed as they were at some
distance, but then the accused absconded. They found the
victim lying on the ground with bleeding, and her head and
forehead etc. were torn, the jaw was torn from nose to
years and mouth. It is alleged that she was in senses and
told to have been injured by the accused Ayub. According
to the information, thereafter she was brought to the
village, then Jamal was sent to Bagole to send a jeep,
wherein she was carried to Magartalab Police Outpost,
where-from they picked up two constables and were carried
her to hospital at Sadri and enroute she collapsed. On
this report, the appellants were arrested and after
completing investigation challan was filed for the offence
under Section 302 IPC in the Court of Judl. Magistrate,
Desuri, where-from it was committed to the Court of Addl.
Sessions Judge, Bali, who in turn transferred it to the
learned trial Court. After committal, the charge under
Section 302 IPC was framed to which accused denied. The
prosecution examined as many as 23 witnesses and tendered
in evidence number of documents. Learned trial Court after
appreciating the evidence of the prosecution and hearing
the accused found the accused guilty as above and
convicted and sentenced him as above.
Assailing the impugned judgment, it was submitted
that the whole thrust of the prosecution case is on the
basis of the three alleged eye-witnesses being P.W.1, Han
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Momammad @ Hamid Khan, the informant, P.W.5 Umar Khan, and
P.W.6 Jamal Khan, but then their evidence is materially
contradicted by P.W.14, Hasan Khan, who is the Tau of the
three witnesses, the husband of the deceased, being Fakir
Mohammad, P.W.11, and from the evidence of Dr.M.M.Jangid.
According to the learned counsel if those evidences are
considered in proper prospective, it would be clear that
the conviction is wholly unsustainable.
Learned Public Prosecutor on the other hand
supported the impugned judgment.
We have heard either of the learned counsels, and
have gone through the record.
From the perusal of the judgment of the learned
trial Court, it appears that the learned trial Court has
placed reliance on the evidence of the three eye-
witnesses, noticed above, and has proceeded to find
corroboration from the site plan, and site inspection
note, recovery of the blood stained Kunt (the weapon of
the accused) pursuant to the information under Section 27
being Ex.19, and recovered vide recovery memo Ex.10,
recovery of blood stained cloths of the accused, and
finding that the cloths of the deceased, cloths of the
accused and the weapon of offence have all been found by
the Forensic Science Laboratory to be containing blood of
human origin of A-Group.
The matter was heard on 2.12.2008, which hearing
continued on 3.12.2008. On 2.12.2008 we desired to see the
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weapon of offence, however, on 3rd it was informed that the
clerk concerned of Malkhana is on leave, and on 3rd it was
informed that the Malkhana has not been received, and
therefore, it was ordered to be called for. Today it is
informed that the weapon of offence has been destroyed on
14.1.2006. It would suffice to say that the impugned
judgment of the learned trial Court was passed on
6.8.2003, wherein it was specifically directed that the
article to be destroyed after expiry of limitation for
appeal, while the appeal was filed on 23.8.2003 itself. As
such, there was no occasion for destroying the article.
Then it is also required to be noticed that the weapon of
offence is an iron article, which cannot be destroyed like
blood stained earth or control earth, or the cloths. The
D.J.,Pali is, therefore, directed to look into the matter,
and find out, as to who is the person guilty for alleged
destruction of the article, and to take strong
disciplinary action against the delinquent and report the
out come to the Court.
Since the accused is in custody, and carrying the
matter of production of weapon to its logical conclusion
may take very long time, we think it appropriate to decide
the matter on merits on the basis of the material
available on record without insisting on production of the
weapon. Accordingly, we have considered the material on
record, and have heard the learned counsel.
We may first of all straightway consider the
evidence of the eye-witnesses, as if the three eye-
witnesses do not inspire confidence, then the other
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aspects considered by the learned trial Court very well go
on the back foot, as in that event, the matter rests in
the realm of circumstantial evidence, for which different
parameters are laid down by Hon’ble the Supreme Court.
P.W.1, the first informant has deposed that it is
a matter of 12th of January, the three persons i.e. he,
Umar and Jamal were going to their house from the field
while his sister-in-law was coming from the opposite
direction carrying cow dung on the head in Tagari. When
she reached near Barloota Bala, the accused appeared from
ambush and immediately wielded a blow with Kunt from the
back side on the head of the victim, whereupon she raised
a cry. They rushed, by then she fell down, thereafter the
accused inflicted further 2-3 blows on the face, and
looking to this, and other witnesses, he ran away. Then
Jamal was sent to fetch the jeep from Bagole and he and
Umar kept sitting there only, victim was carried to house
on the cot and on arrival of jeep, she was taken to
Magartalab Police Chowki, where-from two constables were
accompanied to hospital Sadri, and enroute she collapsed.
Then from a liberate person, the first report was got
scribed and submitted to S.H.O., which has been proved to
be Ex.1. Then he has proved site plan, Ex.3, and site
inspection note, Ex.4, and has also deposed that the
brother of the accused had died by poisoning, and the
suspicion was on the victim, therefore, the accused has
committed this incident.
At this place, we may pause to notice that even
according to this witness, and First Information Report,
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Ex.1, before lodging First Information Report, these three
persons along with the victim had gone to police outpost
Magartalab and where-from two constables had accompanied.
Obviously before accompanying some report must have been
recorded and a diary Rawanagi should have been prepared,
obviously that would have been the first information in
the true sense of the term, and Ex.P-1, which was
subsequently got scribed from a person cannot be said to
be possessing attributes of real First Information Report.
This is one aspect of the matter.
The other aspect of the matter is that according
to this witness, first blow was caused on the head from
the backside by the accused, as a result of which, she
raised a cry, and fell down, and then the accused
inflicted 2-3 more injuries on the face, and ran away. A
look at the post mortem report, Ex.P-16 does show that
there is no injury on the backside of the head, or any
injury on the rear side of the body, rather the victim had
only three injuries, being incised wound 24x5x9 cm on the
face extending from left ear upto 7 cm in the front of the
right ear cutting the nose, transversely piercing the
maxillary bones with clotted blood, and exposure of bones,
vessels and muscles. The second injury is incised wound
9×2.5xBone deep on centre of forehead with exposure of
bones, muscles and vessels and clotted blood, while the
third injury is incised wound 3x.5cm. muscle deep on scalp
with clotted blood. These are the only three injuries and
looking to the location, size and magnitude of injury
No.1, in our view, it is more than obvious that after
receiving this injury, the victim cannot possibly speak.
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With this background, we come to the cross-
examination wherein he has deposed that when the FIR was
scribed, Umar and Jamal were not there, the date of
incident was Eid day, he has of course denied the
suggestion that at the time of getting scribed the report,
the two police constables and SHO was with him. Then he
has deposed that Umar and Jamal are his cousins
(brothers). Then he has deposed that they had went to the
house of Hasan Khan’s well at 12.00 in the noon to wish on
the occasion Eid, where they stayed around an hour, and
that the distance between well of Hasan Khan, and place of
incident is less than half kilometer. Then he has
maintained that he had seen the victim coming, the accused
appearing from ambush and has deposed that at that time,
she was facing them, the accused appeared from backside,
and dealt first blow from backside with sharp edge of the
weapon, the victim cried (अयब म र – अयब म र), and when they
reached near her, she was stutteringly speaking, though
voice was not clear, he has also admitted that their
cloths did not get blood stains. He denied the suggestion
about having been told by the victim to have been
assaulted by the accused, and has maintained to have
himself seen the incident. He has also maintained that all
they three reached the victim together. He has also
deposed that at that time, Kunt was not lying on the spot,
rather accused had taken it away. The accused’s brother is
said to have died some 3-4 years ago, for which no
proceedings were initiated against the victim and it was
orally talked about. He has maintained that it is wrong
that in FIR, Ex.P-1 it was not mentioned that the accused
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hit from behind. He has denied the suggestion about having
not seen the incident and to have been informed by the
villagers about the incident and to have gone on the spot
with the villagers only and on account of animosity false
case has been cooked up.
Then we may straightway come to the evidence of
P.W.5, the another alleged eye-witness, Umar Khan. He has
deposed that he was coming from the field after visiting
his Chacha on the occasion of Eid, their sister-in-law
(भ भ ) was carrying cow dung in Tagari to field, suddenly
the accused appeared from ambush and dealt a blow on her
neck from behind, as a result of which she fell down. Then
the three rushed to the spot and the accused noticing them
took to heels. Thereupon he brought a cot from the house,
whereon the victim was carried to house, then Jamal went
to fetch a jeep from Bagole, wherein she was carried to
Magartalab Police Chowki, therefrom two police constables
were accompanied for Sadri, and enroute she collapsed,
where she was put in the mortuary, and post mortem was
conducted. Then at 4.30 the police came and inquest report
etc. were prepared. He has also proved the site inspection
note and site plan Ex.3 and 4. Thus, in examination-in-
chief, this witness has not deposed about any further
blows having been dealt on the victim after her having
been fallen down, or on her face, rather according to him
only one blow was dealt on the neck from the backside and
she fell down. In cross-examination he has deposed that he
asked the victim as to who has caused injuries, and she
replied it to be the accused. According to him, some 5-6
villagers had also come, who did not try to apprehend the
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accused, who already ran away, the witness also did not
try to apprehend the accused, one Natha Kumhar @ Narayan
has also said to have come. He has also deposed that till
they reached the Police Chowki, the victim was speaking
and lost speech after reaching the police Chowki. Then
while reaching Sadri sometime she was gaining senses
sometime loosing it. He has denied the suggestion about
existence of Babul trees in between the place where they
were coming and on place of the incident. However, he has
maintained that all the three reached together, and that
they had gone only on hearing the shrieks of the victim.
Then he has categorically deposed that when he reached,
the victim had fallen down, and after arrival, accused did
not inflict any more injuries, as he had gone. He has also
maintained that weapon of offence was not lying on the
spot. He has maintained to have seen blow being caused on
the head from the backside with Kunt on account of which
the head was broken, and she fell down. Then he has
deposed that after she had fallen down, 2-3 more injuries
were inflicted and then Ayub ran away and these injuries
are said to have been caused on nose, and forehead. He
claims to have seen infliction of first blow from a
distance of 100 ft. He has also maintained that at that
time, the victim was facing them while the accused’s
backside was towards them. He has also maintained that in
the course of putting the victim on the cot or in the jeep
or moving here and there, his garments did not receive any
blood stains. He has also maintained that till the victim
reached the village, she spoke about three times to have
been injured by the accused. Then he was confronted with
his police statement Ex.D-1, wherein it was not mentioned
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about his having brought the cot, likewise, it is also not
mentioned about causing injury from the backside or on the
head from the backside, then some other portions were also
confronted. He has maintained that he has deposed to the
police about injuries having been inflicted in his
presence, but does not know, as to why they are not
mentioned in the Ex.D-1. He has denied suggestion about
having falsely implicated the accused due to animosity.
This is the entire evidence of P.W.5 Umar Khan.
Then we come to the evidence of P.W.6, the last
eye-witness being Jamal Khan. He has deposed the incidence
to be of 17th December 2000 and that he along with Hamid
and Umar were going to the fields after meeting their
uncle. It was about 1.00 in the noon that their भ भ was
coming from the opposite direction carrying a Tagari on
the head, at which time, the accused appeared from ambush
having Kunt in his hand and straightway dealt a blow on
the backside of her head. Consequently, she fell down. All
the three rushed, which were at a distance of 20-25 ft.
However, the accused inflicted more injuries on forehead
and nose and ran away. At that time, the victim was
speaking and on their asking she gave out that Ayub has
caused injuries. Then Umar got a cot, whereon she was
carried to village, the witness went to fetch jeep to
Bagole and therein she was carried to Magartalab Chowki,
where two constables accompanied and carried to Sadri
hospital but on the way, after Ghanerao she collapsed.
Body was kept in mortuary and inquest report was prepared.
In cross-examination, he has also deposed the other two
witnesses to be his cousins, and has deposed that the
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place of incident is near the village so close that cries
are heard in the village, and has deposed that except
these three persons, nobody was attracted on the cries of
the victim. He has denied arrival of Dalpat Singh or the
potter on the spot, he has admitted that at that time, he
was coming from his Chacha’s well, which is situated at
about less than half a kilometer. Then he has deposed that
at a distance of about 200 ft. he saw the victim, he also
maintains that all they three reached together. He has
denied the suggestion about victim was unconscious at the
time they reached. However, he has maintained that by the
time they reached the spot, accused had already run away
and they could not chase him. He has deposed that all the
three had put the victim on the cot but their cloth did
not receive any blood stains, nor even at the time when
she was put in the jeep. Then he was confronted with his
police statement Ex.D-2 and was contradicted about absence
of the statement about Umar having brought the cot and the
victim having carried therein. Likewise, he was also
confronted with the omissions about first blow having been
caused to the victim from the backside. Then he has said
that the injury was inflicted above the neck on the head a
little bit forward with the sharp edged weapon, the victim
cried and fell down, and that as soon as she fell and
cried, they rushed and the accused ran away. Then in his
own statement he deposed that after her falling down
injuries were inflicted on nose and head. It was also
confronted with the omission about inflicting of first
injury on the nose and second on the forehead in Ex.D-2.
He has denied the suggestion about their having not seen
the incident and having been informed only by the
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villagers, whereupon they may have carried her to
hospital. This is the whole account of the three eye-
witnesses. From the reading of these three statements,
this much is clear that they are unanimous to the effect
that it was a day of Eid and they had gone to wish to
their uncle at his field (well) which was situated at a
distance of less than a half kilometer at the place of
incident and therefrom they were returning in their usual
course. One of the witnesses had of course said that they
went there at about 12 and stayed at about an hour, though
it has not been said by the others. But then this much is
clear that they had collectively gone to their uncle Hasan
Khan and from that they were returning. In this
background, a look at the statement of Hasan Khan P.W.14,
shows that he has deposed the three having come to wish
him and to have stayed there about half an hour and to
have heard about the victim having been killed. Then in
cross-examination he has deposed that those were days of
winter, people go offer prayers of Namaz at about 11-12 in
the noon at village Gandhi, which is about 8-9 kms. away
and that at the well small children had come and told that
Rozatoon is lying injured in the riverbed, whereupon the
three rushed to the spot. Of course, he has also stated
that these persons had come at about 3-4 P.M. However, in
our view, this witness P.W.14 being 90 years of age, can
reasonably be assumed to be not having appropriate sense
of time and if read in conjection with the testimony of
P.W.1, 5 and 6, the appropriate inference of blows is that
after saying prayers of Eid the three persons had gone to
him to wish him being uncle and there a small child had
informed about the victim lying injured in the riverbed,
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whereupon the three persons rushed on the spot. To say the
least, this sequence does clearly negative the three
witnesses being the eye-witnesses of the incident. A
combined reading of the statements of three witnesses and
the post mortem report, Ex.P-16 does clearly show that the
witnesses are lying in an attempt to show themselves to be
eye-witnesses by propounding a theory of injury being
first inflicted from the backside of the victim whereupon
she raised a cry and fell down, which cry attracted them.
In Ex.16, as noticed above, there is no injury available
on the backside of the person of the victim. Likewise,
even in Ex.P-1 this has not been so mentioned. Obviously
therefore, this story has been developed by these
witnesses to make the Court believe that the victim raised
a cry which attracted them and since at that time, victim
was facing the witnesses, it has been deposed that accused
caused injuries from the backside, so as to enable them to
ask the Court to believe that they could see the accused
also. Likewise, it is significant to note that all the
three witnesses have maintained that they asked the
victim, as to how the incident occurred, or so who
inflicted the injuries, and that the Court is asked to
believe that she gave out the accused to be the offender.
It would suffice to say firstly that if the witnesses had
themselves seen the accused causing injuries, there was no
occasion for them to ask the victim, rather this clearly
shows that the witnesses are trying to project a
reassurance about having informed of the victim as well if
somehow they are not believed to be eye-witnesses. Then a
look at the statement of doctor P.W.19 shows that he has
clearly deposed that there was no injury on the backside
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of the neck, and that after receiving injury No.1 she can
possibly not been in a condition to speak. We may
recapitulate the dimension of injury No.1 being as under:-
“Incised wound 24x5x9 cm on the face
extending from left ear upto 7 cm in the
front of the right ear cutting the nose,
transversely piercing the maxillary bones
with clotted blood, and exposure of bones,
vessels and muscles.”
And this leaves no manner of doubt that the whole
nose and maxilla was cut through and through from left ear
to right ear. Even on the broad commonsense, it is
required to be comprehended that on receiving such injury
she would lead profusely and an ordinarily built person
may even loose senses and in any case cannot speak. Thus,
this aspect also cast a serious dent in the reliability of
the three witnesses as eye-witnesses. Then there are
contradictions in their evidence inter se, inasmuch as,
P.W.5 chosen to introduce 5-6 villagers and Natha Kumhar
but then none of them have been produced in the trial. AT
this place, we may also observe the over anxiety and
unreliability of the three witnesses when they chose to
depose their garments to have not received any blood
stains, whether while putting the victim in the cot or
putting her in the jeep, or handling her from here and
there. Looking to the nature, dimension and location of
the three injuries, this again is wholly impossible to
believe that any person(s) handling such a victim would
not receive any blood stains on the garments.
Much has been said by learned trial Court about
this having not been suggested to the three witnesses that
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at the house of Hasan Khan they were informed about the
victim lying in the riverbed by the children or that they
having gone there at 3 to 4 P.M. or the like. It would
suffice to observe that the cross-examination is directed
in the direction of discrediting the presence of these
witnesses on the spot at the time of incidence i.e. their
being eye-witnesses and positive question has been put to
them about their having not seen incident and there
deposing on the basis of what they heard by the villagers.
In our view, in the peculiar circumstances of the present
case, this cross-examination cannot be discarded on the
question of the witnesses having not been appropriately
cross-examined.
Coming to the recovery of the weapon; this again
is a very interesting aspect, inasmuch as, the prosecution
has sought to record information under Section 27 and to
recover the weapon pursuant thereto. The information memo
is Ex.19, wherein he said to have given out that while
running away from the place he has concealed the Kunt in
the fencing of the field of Sohan Singh Ranawat known as
Talab Wali Jameen, which he can get recovered. At this
place, we may refer to the statement of P.W.11, who is the
husband of the victim and he has admitted in cross-
examination that the children of the school have told him
about the incident and that when he went to the spot, the
victim was lying there, the weapon was not there and was
seen by him lying in the fencing duly stained with blood.
This makes it obvious that this witness has reached the
spot before the victim was removed therefrom and at that
time itself, he had seen the blood stained Kunt lying in
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the fencing. In this background, if the site plan Ex.3
regarding the incident and the site plan Ex.11 showing the
place where the weapon was recovered are read together,
this leaves no manner of doubt that the Kunt was recovered
from the fencing near the place of incident itself, which
fencing is of the field of Sohan Singh. It is established
law that in such circumstances when the weapon of offence
is already found, it might be recovered but then there is
no discovery pursuant to the information said to have been
given by the accused so as to be admissible under Section
27 and to constitute as incriminating circumstance against
the accused. Thus, this circumstance also is of no
relevance.
Then the next circumstance relied upon by the
learned trial Court being the garment of the accused being
stained with blood of the same group as that of the
deceased is concerned, the accused in his statement under
Section 313 has clearly deposed that he did not produce
any shirt rather the shirt is of P.W.1 Han Muhammad, which
has been shown to have been recovered from the accused. It
would suffice to say that if the basic evidence of the
eye-witnesses is found to be not reliable by finding the
witnesses to be not eye-witnesses, for the sake of
argument even if it were to be believed that the garments
were recovered, that by itself cannot be said to be
constituting sufficient evidence to record conviction of
the accused for a capital offence.
Thus, in our view, the finding recorded by the
learned trial Court are not at all sustainable and are
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required to be set aside.
Accordingly, the appeal is allowed. The impugned
judgment is set aside, and the accused is acquitted of all
the charges. He be set at liberty forthwith if not
required in any other case.
( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J.
/tarun/