1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
The State of Rajasthan V/s. Kayamdeen & Ors.
CRIMINAL APPEAL No.64 of 1986
Date of Judgment : 12th Jan., 2010
PRESENT
HON'BLE SHRI N.P.GUPTA,J.
HON'BLE SHRI C.M.TOTLA,J.
Mr. AR NIKUB, PP for the State.
Mr. NIRANJAN GAUR, for the respondents.
BY THE COURT: (Per Hon'ble Gupta, J.)
This appeal by the State has been filed to
challenge the judgment of the learned Sessions Judge,
Jodhpur dated 20.8.1985, acquitting the three accused
respondents Kayamdeen, Jamaldeen and Kale Khan for the
offence under Section 302 and 302/34 so also 404 IPC.
The necessary facts are, that on 10.3.1982
Nasirudin P.W.1 lodged an oral report Ex.P/1 at Police
Station Phalodi, to the effect, that in the area of
village Khinchan, he was grazing his herd at about 12
in the noon on hearing the shrieks, whereupon he
ascended the sand dune and saw that Gafoor Khan son of
Mahmood Khan resident of Naneu was running, being
chased by Kala son of Ismile Musalman resident of
2
Dayakaur, riding a camel, while the other two accused
Jamaldeen and Kayamdeen sons of Mehardeen were
following on foot, all the three were armed with
Farsis. Kala rushed the camel and waylaid Gafoor and
stopped him, in the meanwhile Kayamdeen and Jamaldeen
also arrived, and all the three persons inflicted
injuries on Gafoor with Farsis and fell him down and
even thereafter, gave beating. Then the victim was
taken up on camel, held by Kala, while Kayamdeen and
Jamaldeen took the camel towards the south. The
witness kept sitting at that place only, after the
accused persons went quite far away, he followed them,
and when he ascended the sand dune, he saw the three
accused persons going on the camel and at some
distance, he saw the dead body of Gafoor on the sand
dune. Gafoor was having injuries on the head, face and
neck, and was badly smeared with blood and had died.
Then he carried his herd towards his Dhani and
straight-way went to the house of Mahmood, the father
of the deceased, narrated the whole thing to him,
whereupon Mahmood told to be old man and would be
going to dead body with other persons, and the witness
was sent to Police Station for lodging the report. On
this report, a case for offence under Section 302 IPC
was registered, and after completing necessary
investigation, challan was filed in the Court of
Munsiff and Judicial Magistrate, Phalodi, wherefrom
the case was committed.
The learned trial Court charged the accused
Kayamdeen for the offence under Section 302, in the
3
alternative 302/34 and 404 IPC, while the other two
accuseds were charged with the offence under Section
302, and in the alternative 302/34 IPC.
During trial the prosecution examined 16
witnesses, and tendered in evidence some 34 documents.
The accused persons in the statement under Section 313
adopted the stand of denial, however in defence, the
accused persons examined as many as 9 witnesses. The
learned trial Court after completing the trial
acquitted all the three accused persons as above.
We have heard learned Public Prosecutor and
the learned counsel for the accused, and have also
gone through the record.
A look at the record shows, that the case
rests on the testimony of solitary eye-witness
Nasiruddin P.W.1. Of course some circumstances have
also been relied upon by the prosecution, being
recovery of the weapons of offence, and recovery of
blood stained cloths of the accused persons, so also
recovery of some articles belonging to the deceased
from the possession of the accused Kayamdeen. The
learned trial Court has found it to be very doubtful
that Nasiruddin has seen the incident. Then so far
recovery of blood stained articles are concerned, they
have not been believed by learned trial Court, and the
weapons recovered from the accuseds Jamaldeen and Kale
Khan have not been found to be incriminating
circumstance, as those weapons have not been found to
4
be stained with human blood. Then regarding recovery
of the articles belonging to the deceased, from the
possession of Kayamdeen, it has been found that the
prosecution has failed to prove that at the time when
the deceased left the house of his father-in-law
Ibrahim P.W.11 at 8 AM he had carried two articles
with him. Thus it has been found, that there is no
reliable evidence led by the prosecution to establish
the guilt.
In view of the above, we have again examined
the evidence of P.W.1 Nasiruddin. Before proceeding to
appreciate the evidence of Nasiruddin, we may remind
ourselves of the established legal position, as
repeatedly propounded by Hon’ble the Supreme Court,
that where the case rests on the testimony of a
solitary witness, then the witness has to be of
sterling worth, inasmuch as, even if the witness is
found to be partly reliable, still no conviction can
be recorded on the evidence of such witness, in case
he happens to be the solitary witness.
Coming to the statement of P.W.1, he has
stated that on the date of incident it was at about 12
in the noon that he was grazing his herd in the
boundary of village Khinchan, at which time he heard
the shrieks, whereupon he rushed to ascend sand dune,
and saw that Gafoor Khan was running, who was being
chased by Kale Khan riding on the camel, and the other
two accused persons were running behind, Kale Khan
overtook the victim and stopped him, in the meantime
5
the other two accused persons also reached there, all
these were armed with Farsis, and they inflicted
injuries to Gafoor. He claimed to be knowing the three
accused persons, however, in the court he correctly
identified only Jamaldeen and Kayamdeen, but regarding
the third accused Kale Khan he gave out that at the
time of incident, the accused was having muffled face,
and therefore, he could not definitely identify the
accused. He proceeds to further depose, that as a
result of beating Gafoor fell down, still the accused
persons inflicted injuries on him. Then Kalu took the
victim on the camel, Kalu himself also rode on the
camel, while Kayamdeen and Jamaldeen carried away the
camel towards the western side, then the witness kept
sitting there for 15-20 minutes, then he followed the
accused persons on the basis of footprints, and found,
that the dead body of Gafoor was lying on a sand dune,
with injuries on head and neck and was lying in the
pool of blood. There was injury on the right ankle as
well, right eye was destroyed on account of injury.
Then looking to the injuries of Gafoor, he returned to
his herd and went to the house of Mahmood Khan, by
then it was already 5-5.30 PM. He narrated the
incident to Mahmood Khan, hearing which Mahmood Khan
became unconscious, and after regaining conscious,
Mahmood Khan told to be going to dead body with other
persons, and the witness was sent to lodge report at
Police Station Phalodi. Then he carried his herd to
his own house and went Phalodi, where he reached at
about 12-1 in the night and lodged oral report, which
he has proved to be Ex.P/1. According to him Police
6
went to dead body in the night also and reached there
at about 2-2.30, at which time Mahmood Khan and
Mehadra were also there. Then on the next morning
inquest report was prepared, which has been proved to
be Ex.2, site plan Ex.3 was prepared, site inspection
note Ex.4 was also prepared. In cross-examination on
behalf of accused Kale Khan he has maintained, that he
could not identify the third accused on account of his
face being muffled, but he described Kale Khan in his
first report, as other accused Kamal was telling as
Kalu should move the camel faster to stop Gafoor. Then
he has maintained that this was not narrated by him to
Mahmood, as to how he identified the accused Kalu.
According to him the occurrence occurred at about 12
in the noon and he reached Mahmood at about 5 in the
evening. Then he was asked about many more Kalus in
the village, to which he deposed ignorance. Then he
has stated that when he disclosed the name of Kalu to
the SHO, the police persons standing there told the
father’s name of Kalu being Ismile. Then he was
suggested the names of different Kalus with different
fathers names, but the witness did not depose to be
knowing them. However, he has maintained that he was
not knowing Kalu since before. He has also stated that
he did not inform the SHO about his naming Kalu on the
ground of Kamal telling Kalu to move the camel faster
and stop Gafoor. According to him he does not know as
to whether Daya Kaur village comprises of 1500 houses,
while his house is at a distance of 15-20 kms. there-
from. Then in cross-examination on behalf of other two
accused persons, he has stated to be having 100 cattle
7
heads, being 90 sheep and 10 she-goat. He was asked
various questions in order to test his reliability
about there being any occasion for him to be there at
the place of incident with the cattle heads, he was
asked few questions about the distance between
different ways going to different villages near the
place, where he was alleged to be grazing the cattle.
He has stated that the place, where dead body was put,
is the field of Moola Ram Bhambhi, and that the place
where beating was given was also field of somebody. He
had shaken on the aspect about on what place i.e. on
which way, the incident occurred, but then purported
to be sure that the incident occurred on the way of
Agore at a distance of 3-3½-4 kms. from village
Khinchan. He has admitted that at the place, where
incident occurred, there are high sand dunes, and has
admitted that a man riding camel on the other side of
the dune is also not visible. He is not aware as to in
whose field he was grazing the cattle. However, in the
vicinity of that place, the crop of Taramera was
existing, that field might be of around 200 bighas.
Likewise at the time when the incident occurred
Taramera crop was there in the fields, though it was
not in the field where the incident occurred.
Regarding grazing of cattle, he has deposed that he
grazes it in the vicinity of Naneu also, but normally
he grazes it in the boundary of village Khinchan. He
has claimed to be 7 siblings, others being doing
labour, and that other inhabitants of Dhani at Naneu
also graze cattle in the boundary of village Khinchan.
He has denied the suggestion about there being no
8
water body in the village Naneu, rather he has
maintained that there is one Mokanadi, which was
having water at that time also, which was sufficient
to feed the cattle, and which water body is at a
distance of about 3 kms. from his Dhani. Then he has
stated that Mokanadi is in the boundary of village
Khinchan, and in Naneu also there is another water
body, which is at a distance of 1 km. from his Dhani.
He has also deposed that the day of incident was the
day following Holi, and therefore, other persons did
not go to graze the cattle, but he had gone even
before the day break, and at a distance of about 3-4
kms. from his Dhani. According to him his other family
members had gone to attend marriage of son of Jai
Singh, he did not take any food in the day, he also
stated that the place, where the dead body was lying
is the field of Moola Ram Bhambhi in which Taramera
crop was standing, but the dead body was not lying
amidst the crop, but was lying in the side. Then he
has stated that in between the place, where he was
grazing the cattle and beating was given, there are 2-
3 sand dunes, on hearing the shrieks he ascended the
first sand dune, and even thereafter, he heard 2-3
shrieks and had seen beating on ascending the first
dune itself, and he stopped there. He claims to be
hiding himself, and to have not raised the cry, being
frightened with the incident, and apprehending the
injury to himself also. According to him accused
persons did not see him, he is unable to give distance
in between the two dunes. He has denied the suggestion
about Gafoor having fallen down in the process of
9
running. The witness claims to have seen infliction of
one blow on the head, other on the right leg and then
Gafoor fell down, and even thereafter injuries were
inflicted. However he is not able to depose, as to how
many injuries were caused after Gafoor had fallen
down. However, one injury was inflicted on the right
forehead, other on the face, third near the neck, the
beating continued for 2-3 minutes. According to him
after he descended the dune, accuseds were not visible
to him and he did not follow the accused persons
either. He has not been able to show any reason as to
why did he not narrate the details of the injuries
seen by him to be inflicted to the victim. Then
according to him accused persons Jamaldeen,
Kayamdeen’s brother Yar Mohd. was murdered by Laldeen,
Hazi Khan and Nihaldeen, who all are sons of Mahendra.
He has denied the suggestion about proceedings having
been initiated against the witness at the instance of
Mehardeen after the murder of Yar Mohd. He has deposed
ignorance about 107 proceedings having been initiated
against Dabar son of Jagmal, Raniya son of Mehariya.
According to him near his field there is Oran
measuring about 500-550 bighas, but therein cattle are
not grazed because of dearth of grass, and existence
of stones. According to him in village Naneu there is
a water tank, and small water bodies are there for
providing drinking water to the cattle. According to
him both the accused persons Kayamdeen and Jamaldeen
earlier lived in village Naneu, and it is only after
murder of Yar Mohd., that they started living in
village Mohra. He has maintained that when the police
10
went on the spot he did not show the police the place
where the accused persons had given beating to Gafoor.
However, in the next morning it was shown. Then he has
also stated that he had shown the police persons the
place, where he was grazing the cattle, and the place,
where-from he had seen the incident. Then he was asked
questions about the garments being worn by the accused
and the victim, and he stated that Gafoor was wearing
a white head garment, white shirt and white Tahmad,
but he could not narrate the garments of accused
persons, purportedly on the ground, that he was under
trauma. Then he has denied suggestion about his
having not gone on the place of incident on the date
of incident, rather to be busy in sale of cattle
stock, and to have not seen the incident. This is the
whole evidence of P.W.1.
From a reading of this evidence this much is
clear, that in F.I.R. Ex.P/1 he has given the
description of accused Kale Khan including parentage
and place of residence, but then, while in the Court
he has stated to have not been able to identify him
properly, on account of the accused being with muffled
face, and also states that the father’s name of the
accused was given out by some police person available
in the Police Station at the time when he lodged the
report. It is also clear, that brother of the two
accused persons Jamaldeen and Kayamdeen being Yar
Mohd. had been murdered, and it has come in the
evidence of P.W.8 Mahmood Khan father of the deceased,
that 4 years ago Yar Mohd. son of Mehardeen, the
11
brother of accused Jamaldeen and Kayamdeen had been
murdered, in which Gafoor was also one of the accused,
and all the five accused persons in that case had been
convicted and sentenced to 8 years imprisonment,
against which conviction and sentence appeal had been
filed in the High Court, which is pending, however,
Gafoor was released on bail, and thereafter, Gafoor
had submitted an application before the SDO about
danger of life at the hands of Jamaldeen and
Kayamdeen, which does show that there was a motive
available.
In these circumstances, in our view, it is
well nigh possible, that the two accused persons
Jamaldeen and Kayamdeen may have committed the murder
of Gafoor. This is one aspect of the matter, but then
it is established law, that motive by itself cannot
furnish a ground for conviction, and the guilt of the
accused should be established on record by legal,
reliable, admissible evidence, and it is also well-
nigh possible, that Gafoor may have been murdered, and
in view of the fact that Gafoor was already facing
conviction on account of murder of the brother of the
accuseds Kayamdeen and Jamaldeen, entertaining strong
suspicion, Nasiruddin P.W.1 may have been introduced
as eye-witness, to find support to the prosecution
story, and then all necessary padding up may have been
done. From a close reading of the entire record, in
our view, this great suspicion, looming large in our
mind is not cleared. In this background, a look at the
statement of D.W.7 Krishna Saraswat would show, that
12
at the relevant time he was posted as Revenue
Inspector, and had appeared in the witness-box along
with the cattle census register, wherein the number of
cattle heads with particular person is recorded, and
according to that register, Nasiruddin was not having
any herd of cattle heads, rather he was having only 6
goat. This census is deposed to be complete upto
15.4.83. This, coupled with the fact, that in the site
inspection, the requisite marks which are expected to
be available on spot of Nasiruddin grazing the cattle
heads there, have not been found. Then the reasoning
given by learned trial Court about Nasiruddin being
not able to depose the garments, which the accused
Kayamdeen and Jamaldeen were wearing, or even their
colour, becomes very significant, inasmuch as, the
incident is said to have occurred in the broad day
light in the noon, and the witness claims to have seen
the incident from the top of the sand dune. In this
very sequence, the conduct of the witness is also
significant, inasmuch as, he is grown up 31 years
young man, and it is too much to believe that despite
being there at a distance of 3 sand dunes, he would
keep waiting there only till the accused persons go
away with the corpse, then would see the location of
the dead body, and would then come along with the herd
to Mahmood Khan, and narrate the story to him. Since
the occurrence is said to be in the broad day light,
natural instinct would have been to immediately rush
to Mahmood Khan, and inform about the incident.
Obviously the accused and the dead body could be
traced even in that event with the footprint track. In
13
this sequence, further significantly the FIR has been
lodged after a long delay, say at 1 in the night. It
is also significant to note, that the day of incident
admittedly is the day following the festival of Holi,
and even according to P.W.1 on account of it being a
festive day, other shepherds did not go to graze their
cattle, even according to him he did not see any
shepherds grazing the cattle. This also shows that it
is only an excuse projected by him to show his
presence on the spot.
Then a combined reading of the statement of
P.W.1 and P.W.16, the I.O. Jalam Singh, does show,
that the possibilities are not ruled out about the
witness being not in a position to see the incident in
view of the intervening couple of high sand dunes, as
according to the I.O. even the person riding a camel
on the other side of the sand dune is not visible.
This coupled with the fact, that despite the fact that
witness P.W.1 deposed to have shown to the Police the
place, where-from he has seen the incident, it is not
so mentioned in the site plan, Ex.3, and P.W.16, I.O.,
has clearly stated, that the place was not shown to
him. Admittedly when P.W.1 was there at the time of
preparation of site plan, if the witness had seen the
incident, the place where-from he had seen, was
required to be shown in the site plan, at least to
enable the Court to appreciate the reliability
thereof. Thus, in our view, agreeing with the reasons
given by learned trial Court it cannot be said, that
P.W.1 is a witness of sterling worth, so as to place
14
reliance on any part of his evidence, by involved
reasoning and the process of eliminating unreliable
part of his evidence.
Then after discarding the evidence of P.W.1,
so far as circumstantial evidence produced on record
is concerned, the reasoning given by learned trial
Court are duly supported by record, and a mere
recovery of weapon of offence from Kayamdeen is not
itself sufficient, circumstance on the basis of which
conviction can be recorded, as the law in regard to
circumstantial evidence is settled by Hon’ble the
Supreme Court, to the effect, that each circumstance
relied upon by prosecution should; (i) indicate
towards the guilt of the accused, (ii) should be
established by legally admissible reliable evidence,
(iii) all such circumstances, so established should
form a complete chain establishing the guilt of the
accused and (iv) being most significant, that the
chain so framed, should at the same time, also
negative innocence of the accused on all reasonable
hypothesis.
In the present case, even if believing, the
recovery of weapon of offence is a solitary
circumstance, on which no conviction can be recorded.
Thus, the result is that we do not find any
sufficient ground to interfere with the judgment of
the learned trial Court acquitting the accused
persons.
15
The appeal thus, has no force and is
dismissed.
( C M TOTLA ),J. ( N P GUPTA ),J. /tarun/