{"id":167504,"date":"2008-12-15T00:00:00","date_gmt":"2008-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ayyub-khan-vs-state-on-15-december-2008"},"modified":"2018-01-24T03:41:05","modified_gmt":"2018-01-23T22:11:05","slug":"ayyub-khan-vs-state-on-15-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ayyub-khan-vs-state-on-15-december-2008","title":{"rendered":"Ayyub Khan vs State on 15 December, 2008"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Ayyub Khan vs State on 15 December, 2008<\/div>\n
                                                                        1\n\n           IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n                               AT JODHPUR\n\n\n                             J U D G M E N T\n\n\n                   CRIMINAL APPEAL No. 933 of 2003\n\n                               AYYUB KHAN\n                                   V\/S\n                                  STATE\n\n\nDate of Judgment                   :              15.12.2008\n\n\n                              PRESENT\n                     HON'BLE SHRI N P GUPTA,J.\n             HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.\n\n\nMr. SABIR KHAN for Mr. PRADEEP SHAH, for the appellant\nMr. JPS CHOUDHARY, PP, for the respondent\n\n\nBY THE COURT : (PER HON'BLE GUPTA,J.)<\/pre>\n
             By this appeal, the appellant seeks to challenge<\/p>\n
his conviction and sentences imposed by the learned Addl.<\/p>\n
Sessions     Judge,   (Fast    Track),   Bali     vide   judgment   dated<\/p>\n
6.8.2003, convicting him for the offence under Section 302<\/p>\n
IPC, and sentencing to rigorous imprisonment for life, and<\/p>\n
a   fine    of   Rs.1000\/-    in   default   to   undergo   one   month’s<\/p>\n
further rigorous imprisonment.\n<\/p>\n<\/p>\n
             The necessary facts are that on 17.12.2001 at<\/p>\n
about 4.15 PM, one Han Mommamad lodged a written report at<\/p>\n
Police Station Khinwada alleging that at about 1.00 in the<\/p>\n
noon, he along with Umar Khan son of Jamsher Khan, and<\/p>\n
Jamal Khan were returning from the house of his Tau, Hasan<\/p>\n
Khan at Ranki Wala Well. At that time, his sister-in-law<\/p>\n
(\u092d \u092d ) Smt.Rozatoon was coming from the opposite direction
\n                                                                                    2<\/span><\/p>\n
carrying a Tagari containing cow dung, when she reached<\/p>\n
near Barloota Bala (water course), the appellant emereged<\/p>\n
from the ambush, who was having his Kunt in his hand, he<\/p>\n
started     indiscriminately          wielding    injuries      to    Rozatoon.<\/p>\n
She    raised     a    cry,    and    rushed     as   they     were    at       some<\/p>\n
distance, but then the accused absconded. They found the<\/p>\n
victim lying on the ground with bleeding, and her head and<\/p>\n
forehead etc. were torn, the jaw was torn from nose to<\/p>\n
years and mouth. It is alleged that she was in senses and<\/p>\n
told to have been injured by the accused Ayub. According<\/p>\n
to    the   information,       thereafter      she    was    brought       to    the<\/p>\n
village, then Jamal was sent to Bagole to send a jeep,<\/p>\n
wherein     she     was     carried   to    Magartalab       Police    Outpost,<\/p>\n
where-from they picked up two constables and were carried<\/p>\n
her to hospital at Sadri and enroute she collapsed. On<\/p>\n
this    report,       the     appellants     were     arrested       and     after<\/p>\n
completing investigation challan was filed for the offence<\/p>\n
under Section 302 IPC in the Court of Judl. Magistrate,<\/p>\n
Desuri, where-from it was committed to the Court of Addl.<\/p>\n
Sessions Judge, Bali, who in turn transferred it to the<\/p>\n
learned     trial     Court.    After      committal,    the    charge       under<\/p>\n
Section 302 IPC was framed to which accused denied. The<\/p>\n
prosecution examined as many as 23 witnesses and tendered<\/p>\n
in evidence number of documents. Learned trial Court after<\/p>\n
appreciating the evidence of the prosecution and hearing<\/p>\n
the    accused        found    the    accused     guilty      as     above       and<\/p>\n
convicted     and sentenced him as above.\n<\/p>\n<\/p>\n
             Assailing the impugned judgment, it was submitted<\/p>\n
that the whole thrust of the prosecution case is on the<\/p>\n
basis of the three alleged eye-witnesses being P.W.1, Han
\n                                                                                3<\/span><\/p>\n
Momammad @ Hamid Khan, the informant, P.W.5 Umar Khan, and<\/p>\n
P.W.6 Jamal Khan, but then their evidence is materially<\/p>\n
contradicted by P.W.14, Hasan Khan, who is the Tau of the<\/p>\n
three witnesses, the husband of the deceased, being Fakir<\/p>\n
Mohammad, P.W.11, and from the evidence of Dr.M.M.Jangid.<\/p>\n
According to the learned counsel if those evidences are<\/p>\n
considered in proper prospective, it would be clear that<\/p>\n
the conviction is wholly unsustainable.\n<\/p>\n<\/p>\n
            Learned       Public      Prosecutor     on    the    other     hand<\/p>\n
supported the impugned judgment.\n<\/p>\n<\/p>\n
            We have heard either of the learned counsels, and<\/p>\n
have gone through the record.\n<\/p>\n<\/p>\n
            From the perusal of the judgment of the learned<\/p>\n
trial Court, it appears that the learned trial Court has<\/p>\n
placed     reliance      on     the     evidence     of    the    three     eye-<\/p>\n
witnesses,       noticed      above,     and   has      proceeded    to     find<\/p>\n
corroboration      from       the   site   plan,     and   site     inspection<\/p>\n
note, recovery of the blood stained Kunt (the weapon of<\/p>\n
the accused) pursuant to the information under Section 27<\/p>\n
being    Ex.19,    and     recovered       vide    recovery      memo     Ex.10,<\/p>\n
recovery    of    blood       stained    cloths    of     the    accused,    and<\/p>\n
finding that the cloths of the deceased, cloths of the<\/p>\n
accused and the weapon of offence have all been found by<\/p>\n
the Forensic Science Laboratory to be containing blood of<\/p>\n
human origin of A-Group.\n<\/p>\n<\/p>\n
            The matter was heard on 2.12.2008, which hearing<\/p>\n
continued on 3.12.2008. On 2.12.2008 we desired to see the
\n                                                                                          4<\/span><\/p>\n
weapon of offence, however, on 3rd it was informed that the<\/p>\n
clerk concerned of Malkhana is on leave, and on 3rd it was<\/p>\n
informed    that         the    Malkhana       has    not   been       received,      and<\/p>\n
therefore, it was ordered to be called for. Today it is<\/p>\n
informed that the weapon of offence has been destroyed on<\/p>\n
14.1.2006.       It      would       suffice    to    say     that      the    impugned<\/p>\n
judgment     of       the       learned     trial      Court          was   passed     on<\/p>\n
6.8.2003, wherein it was specifically directed that the<\/p>\n
article to be destroyed after expiry of limitation for<\/p>\n
appeal, while the appeal was filed on 23.8.2003 itself. As<\/p>\n
such, there was no occasion for destroying the article.<\/p>\n
Then it is also required to be noticed that the weapon of<\/p>\n
offence is an iron article, which cannot be destroyed like<\/p>\n
blood stained earth or control earth, or the cloths. The<\/p>\n
D.J.,Pali is, therefore, directed to look into the matter,<\/p>\n
and find out, as to who is the person guilty for alleged<\/p>\n
destruction         of         the     article,       and        to     take        strong<\/p>\n
disciplinary action against the delinquent and report the<\/p>\n
out come to the Court.\n<\/p>\n<\/p>\n
            Since the accused is in custody, and carrying the<\/p>\n
matter of production of weapon to its logical conclusion<\/p>\n
may take very long time, we think it appropriate to decide<\/p>\n
the   matter        on      merits     on   the       basis      of     the    material<\/p>\n
available on record without insisting on production of the<\/p>\n
weapon. Accordingly, we have considered the material on<\/p>\n
record, and have heard the learned counsel.<\/p>\n
            We      may        first   of   all      straightway        consider      the<\/p>\n
evidence     of       the      eye-witnesses,         as    if    the       three    eye-<\/p>\n
witnesses      do        not     inspire    confidence,           then      the     other
\n                                                                                        5<\/span><\/p>\n
aspects considered by the learned trial Court very well go<\/p>\n
on the back foot, as in that event, the matter rests in<\/p>\n
the realm of circumstantial evidence, for which different<\/p>\n
parameters are laid down by Hon’ble the Supreme Court.<\/p>\n
               P.W.1, the first informant has deposed that it is<\/p>\n
a matter of 12th of January, the three persons i.e. he,<\/p>\n
Umar and Jamal were going to their house from the field<\/p>\n
while      his    sister-in-law        was       coming       from    the    opposite<\/p>\n
direction carrying cow dung on the head in Tagari. When<\/p>\n
she reached near Barloota Bala, the accused appeared from<\/p>\n
ambush and immediately wielded a blow with Kunt from the<\/p>\n
back side on the head of the victim, whereupon she raised<\/p>\n
a cry. They rushed, by then she fell down, thereafter the<\/p>\n
accused     inflicted        further       2-3     blows      on     the    face,    and<\/p>\n
looking to this, and other witnesses, he ran away. Then<\/p>\n
Jamal was sent to fetch the jeep from Bagole and he and<\/p>\n
Umar kept sitting there only, victim was carried to house<\/p>\n
on   the    cot      and   on   arrival      of    jeep,       she    was    taken    to<\/p>\n
Magartalab Police Chowki, where-from two constables were<\/p>\n
accompanied to hospital Sadri, and enroute she collapsed.<\/p>\n
Then    from     a    liberate    person,        the    first      report     was got<\/p>\n
scribed and submitted to S.H.O., which has been proved to<\/p>\n
be Ex.1. Then he has proved site plan, Ex.3, and site<\/p>\n
inspection        note,     Ex.4,    and     has       also    deposed      that     the<\/p>\n
brother     of       the   accused   had     died      by     poisoning,      and the<\/p>\n
suspicion was on the victim, therefore, the accused has<\/p>\n
committed this incident.\n<\/p>\n<\/p>\n
               At this place, we may pause to notice that even<\/p>\n
according to this witness, and First Information Report,
\n                                                                              6<\/span><\/p>\n
Ex.1, before lodging First Information Report, these three<\/p>\n
persons along with the victim had gone to police outpost<\/p>\n
Magartalab and where-from two constables had accompanied.<\/p>\n
Obviously before accompanying some report must have been<\/p>\n
recorded and a diary Rawanagi should have been prepared,<\/p>\n
obviously that would have been the first information in<\/p>\n
the     true    sense    of    the    term,    and    Ex.P-1,     which   was<\/p>\n
subsequently got scribed from a person cannot be said to<\/p>\n
be possessing attributes of real First Information Report.<\/p>\n
This is one aspect of the matter.\n<\/p>\n<\/p>\n
               The other aspect of the matter is that according<\/p>\n
to this witness, first blow was caused on the head from<\/p>\n
the backside by the accused, as a result of which, she<\/p>\n
raised     a    cry,    and    fell    down,    and    then     the    accused<\/p>\n
inflicted 2-3 more injuries on the face, and ran away. A<\/p>\n
look at the post mortem report, Ex.P-16 does show that<\/p>\n
there is no injury on the backside of the head, or any<\/p>\n
injury on the rear side of the body, rather the victim had<\/p>\n
only three injuries, being incised wound 24x5x9 cm on the<\/p>\n
face extending from left ear upto 7 cm in the front of the<\/p>\n
right    ear    cutting       the   nose,    transversely     piercing    the<\/p>\n
maxillary bones with clotted blood, and exposure of bones,<\/p>\n
vessels and muscles. The second injury is incised wound<\/p>\n
9×2.5xBone deep on centre of forehead with exposure of<\/p>\n
bones, muscles and vessels and clotted blood, while the<\/p>\n
third injury is incised wound 3x.5cm. muscle deep on scalp<\/p>\n
with clotted blood. These are the only three injuries and<\/p>\n
looking    to    the    location,     size     and   magnitude    of   injury<\/p>\n
No.1, in our view, it is more than obvious that after<\/p>\n
receiving this injury, the victim cannot possibly speak.
\n                                                                                          7<\/span><\/p>\n
               With    this     background,         we     come    to     the    cross-<\/p>\n
examination wherein he has deposed that when the FIR was<\/p>\n
scribed,       Umar    and     Jamal    were       not     there,       the     date    of<\/p>\n
incident       was     Eid     day,    he     has     of    course       denied        the<\/p>\n
suggestion that at the time of getting scribed the report,<\/p>\n
the two police constables and SHO was with him. Then he<\/p>\n
has     deposed       that      Umar     and       Jamal     are        his     cousins<\/p>\n
(brothers). Then he has deposed that they had went to the<\/p>\n
house of Hasan Khan’s well at 12.00 in the noon to wish on<\/p>\n
the occasion Eid, where they stayed around an hour, and<\/p>\n
that the distance between well of Hasan Khan, and place of<\/p>\n
incident       is     less     than    half        kilometer.       Then        he     has<\/p>\n
maintained that he had seen the victim coming, the accused<\/p>\n
appearing from ambush and has deposed that at that time,<\/p>\n
she was facing them, the accused appeared from backside,<\/p>\n
and dealt first blow from backside with sharp edge of the<\/p>\n
weapon, the victim cried (\u0905\u092f\u092c \u092e \u0930 – \u0905\u092f\u092c \u092e \u0930), and when they<\/p>\n
reached near her, she was stutteringly speaking, though<\/p>\n
voice    was    not     clear,    he     has       also    admitted       that       their<\/p>\n
cloths did not get blood stains. He denied the suggestion<\/p>\n
about    having        been     told    by     the       victim     to    have       been<\/p>\n
assaulted       by    the     accused,       and    has    maintained           to   have<\/p>\n
himself seen the incident. He has also maintained that all<\/p>\n
they    three        reached    the    victim        together.       He       has    also<\/p>\n
deposed that at that time, Kunt was not lying on the spot,<\/p>\n
rather accused had taken it away. The accused’s brother is<\/p>\n
said    to     have    died     some    3-4    years        ago,    for       which     no<\/p>\n
proceedings were initiated against the victim and it was<\/p>\n
orally talked about. He has maintained that it is wrong<\/p>\n
that in FIR, Ex.P-1 it was not mentioned that the accused
\n                                                                       8<\/span><\/p>\n
hit from behind. He has denied the suggestion about having<\/p>\n
not seen the incident and to have been informed by the<\/p>\n
villagers about the incident and to have gone on the spot<\/p>\n
with the villagers only and on account of animosity false<\/p>\n
case has been cooked up.\n<\/p>\n<\/p>\n
           Then we may straightway come to the evidence of<\/p>\n
P.W.5, the another alleged eye-witness, Umar Khan. He has<\/p>\n
deposed that he was coming from the field after visiting<\/p>\n
his Chacha on the occasion of Eid, their sister-in-law<\/p>\n
(\u092d \u092d ) was carrying cow dung in Tagari to field, suddenly<\/p>\n
the accused appeared from ambush and dealt a blow on her<\/p>\n
neck from behind, as a result of which she fell down. Then<\/p>\n
the three rushed to the spot and the accused noticing them<\/p>\n
took to heels. Thereupon he brought a cot from the house,<\/p>\n
whereon the victim was carried to house, then Jamal went<\/p>\n
to fetch a jeep from Bagole, wherein she was carried to<\/p>\n
Magartalab Police Chowki, therefrom two police constables<\/p>\n
were   accompanied   for   Sadri,      and   enroute   she   collapsed,<\/p>\n
where she was put in the mortuary, and post mortem was<\/p>\n
conducted. Then at 4.30 the police came and inquest report<\/p>\n
etc. were prepared. He has also proved the site inspection<\/p>\n
note and site plan Ex.3 and 4. Thus, in examination-in-<\/p>\n
chief,   this   witness    has   not   deposed   about   any   further<\/p>\n
blows having been dealt on the victim after her having<\/p>\n
been fallen down, or on her face, rather according to him<\/p>\n
only one blow was dealt on the neck from the backside and<\/p>\n
she fell down. In cross-examination he has deposed that he<\/p>\n
asked the victim as to who has caused injuries, and she<\/p>\n
replied it to be the accused. According to him, some 5-6<\/p>\n
villagers had also come, who did not try to apprehend the
\n                                                                             9<\/span><\/p>\n
accused, who already ran away, the witness also did not<\/p>\n
try to apprehend the accused, one Natha Kumhar @ Narayan<\/p>\n
has also said to have come. He has also deposed that till<\/p>\n
they reached the Police Chowki, the victim was speaking<\/p>\n
and lost speech after reaching the police Chowki. Then<\/p>\n
while    reaching      Sadri   sometime     she    was     gaining   senses<\/p>\n
sometime loosing it. He has denied the suggestion about<\/p>\n
existence of Babul trees in between the place where they<\/p>\n
were coming and on place of the incident. However, he has<\/p>\n
maintained that all the three reached together, and that<\/p>\n
they had gone only on hearing the shrieks of the victim.<\/p>\n
Then he has categorically deposed that when he reached,<\/p>\n
the victim had fallen down, and after arrival, accused did<\/p>\n
not inflict any more injuries, as he had gone. He has also<\/p>\n
maintained that weapon of offence was not lying on the<\/p>\n
spot. He has maintained to have seen blow being caused on<\/p>\n
the head from the backside with Kunt on account of which<\/p>\n
the   head     was   broken,   and   she    fell    down.    Then    he   has<\/p>\n
deposed that after she had fallen down, 2-3 more injuries<\/p>\n
were inflicted and then Ayub ran away and these injuries<\/p>\n
are said to have been caused on nose, and forehead. He<\/p>\n
claims    to    have   seen    infliction     of    first    blow    from   a<\/p>\n
distance of 100 ft. He has also maintained that at that<\/p>\n
time,    the    victim   was   facing      them    while    the   accused’s<\/p>\n
backside was towards them. He has also maintained that in<\/p>\n
the course of putting the victim on the cot or in the jeep<\/p>\n
or moving here and there, his garments did not receive any<\/p>\n
blood stains. He has also maintained that till the victim<\/p>\n
reached the village, she spoke about three times to have<\/p>\n
been injured by the accused. Then he was confronted with<\/p>\n
his police statement Ex.D-1, wherein it was not mentioned
\n                                                                                         10<\/span><\/p>\n
about his having brought the cot, likewise, it is also not<\/p>\n
mentioned about causing injury from the backside or on the<\/p>\n
head from the backside, then some other portions were also<\/p>\n
confronted. He has maintained that he has deposed to the<\/p>\n
police    about          injuries        having       been       inflicted      in     his<\/p>\n
presence,         but    does      not   know,       as    to    why    they    are    not<\/p>\n
mentioned in the Ex.D-1. He has denied suggestion about<\/p>\n
having falsely implicated the accused due to animosity.<\/p>\n
This is the entire evidence of P.W.5 Umar Khan.<\/p>\n
              Then we come to the evidence of P.W.6, the last<\/p>\n
eye-witness being Jamal Khan. He has deposed the incidence<\/p>\n
to be of 17th December 2000 and that he along with Hamid<\/p>\n
and   Umar     were      going      to   the    fields       after     meeting       their<\/p>\n
uncle. It was about 1.00 in the noon that their \u092d \u092d was<\/p>\n
coming from the opposite direction carrying a Tagari on<\/p>\n
the head, at which time, the accused appeared from ambush<\/p>\n
having Kunt in his hand and straightway dealt a blow on<\/p>\n
the backside of her head. Consequently, she fell down. All<\/p>\n
the three rushed, which were at a distance of 20-25 ft.<\/p>\n
However, the accused inflicted more injuries on forehead<\/p>\n
and   nose     and       ran    away.     At    that       time,      the   victim     was<\/p>\n
speaking and on their asking she gave out that Ayub has<\/p>\n
caused    injuries.          Then    Umar      got    a    cot,     whereon     she was<\/p>\n
carried      to    village,        the   witness          went   to    fetch    jeep to<\/p>\n
Bagole and therein she was carried to                            Magartalab Chowki,<\/p>\n
where    two       constables        accompanied           and    carried      to    Sadri<\/p>\n
hospital but on the way, after Ghanerao she collapsed.<\/p>\n
Body was kept in mortuary and inquest report was prepared.<\/p>\n
In cross-examination, he has also deposed the other two<\/p>\n
witnesses         to    be   his    cousins,      and      has     deposed     that the
\n                                                                                  11<\/span><\/p>\n
place of incident is near the village so close that cries<\/p>\n
are   heard    in    the    village,    and     has    deposed    that       except<\/p>\n
these three persons, nobody was attracted on the cries of<\/p>\n
the victim. He has denied arrival of Dalpat Singh or the<\/p>\n
potter on the spot, he has admitted                   that at that time, he<\/p>\n
was coming from his Chacha’s well, which is situated at<\/p>\n
about less than half a kilometer. Then he has deposed that<\/p>\n
at a distance of about 200 ft. he saw the victim, he also<\/p>\n
maintains that all they three reached together. He has<\/p>\n
denied the suggestion about victim was unconscious at the<\/p>\n
time they reached. However, he has maintained that by the<\/p>\n
time they reached the spot, accused had already run away<\/p>\n
and they could not chase him. He has deposed that all the<\/p>\n
three had put the victim on the cot but their cloth did<\/p>\n
not receive any blood stains, nor even at the time when<\/p>\n
she was put in the jeep. Then he was confronted with his<\/p>\n
police statement Ex.D-2 and was contradicted about absence<\/p>\n
of the statement about Umar having brought the cot and the<\/p>\n
victim     having      carried    therein.      Likewise,        he    was    also<\/p>\n
confronted with the omissions about first blow having been<\/p>\n
caused to the victim from the backside. Then he has said<\/p>\n
that the injury was inflicted above the neck on the head a<\/p>\n
little bit forward with the sharp edged weapon, the victim<\/p>\n
cried and fell down, and that as soon as she fell and<\/p>\n
cried, they rushed            and the accused ran away. Then in his<\/p>\n
own   statement        he   deposed     that    after    her     falling      down<\/p>\n
injuries      were   inflicted     on    nose    and    head.    It    was also<\/p>\n
confronted      with    the    omission    about       inflicting      of     first<\/p>\n
injury on the nose and second on the forehead in Ex.D-2.<\/p>\n
He has denied the suggestion about their having not seen<\/p>\n
the   incident       and      having    been     informed       only     by    the
\n                                                                                 12<\/span><\/p>\n
villagers,    whereupon          they    may     have        carried    her    to<\/p>\n
hospital.    This    is    the   whole    account       of    the   three eye-<\/p>\n
witnesses.    From    the    reading     of    these     three      statements,<\/p>\n
this much is clear that they are unanimous to the effect<\/p>\n
that it was a day of Eid and they had gone to wish to<\/p>\n
their uncle at his field (well) which was situated at a<\/p>\n
distance of less than a half kilometer at the place of<\/p>\n
incident and therefrom they were returning in their usual<\/p>\n
course. One of the witnesses had of course said that they<\/p>\n
went there at about 12 and stayed at about an hour, though<\/p>\n
it has not been said by the others. But then this much is<\/p>\n
clear that they had collectively gone to their uncle Hasan<\/p>\n
Khan   and    from        that    they    were     returning.          In     this<\/p>\n
background, a look at the statement of Hasan Khan P.W.14,<\/p>\n
shows that he has deposed the three having come to wish<\/p>\n
him and to have stayed there about half an hour and to<\/p>\n
have heard about the victim having been killed. Then in<\/p>\n
cross-examination he has deposed that those were days of<\/p>\n
winter, people go offer prayers of Namaz at about 11-12 in<\/p>\n
the noon at village Gandhi, which is about 8-9 kms. away<\/p>\n
and that at the well small children had come and told that<\/p>\n
Rozatoon is lying injured in the riverbed, whereupon the<\/p>\n
three rushed to the spot. Of course, he has also stated<\/p>\n
that these persons had come at about 3-4 P.M. However, in<\/p>\n
our view, this witness P.W.14 being 90 years of age, can<\/p>\n
reasonably be assumed to be not having appropriate sense<\/p>\n
of time and if read in conjection with the testimony of<\/p>\n
P.W.1, 5 and 6, the appropriate inference of blows is that<\/p>\n
after saying prayers of Eid the three persons had gone to<\/p>\n
him to wish him being uncle and there a small child had<\/p>\n
informed about the victim lying injured in the riverbed,
\n                                                                                    13<\/span><\/p>\n
whereupon the three persons rushed on the spot. To say the<\/p>\n
least,    this      sequence      does      clearly     negative     the     three<\/p>\n
witnesses        being    the    eye-witnesses         of    the    incident.      A<\/p>\n
combined reading of the statements of three witnesses and<\/p>\n
the post mortem report, Ex.P-16 does clearly show that the<\/p>\n
witnesses are lying in an attempt to show themselves to be<\/p>\n
eye-witnesses       by    propounding        a    theory     of    injury       being<\/p>\n
first inflicted from the backside of the victim whereupon<\/p>\n
she raised a cry and fell down, which cry attracted them.<\/p>\n
In Ex.16, as noticed above, there is no injury available<\/p>\n
on the backside of the person of the victim. Likewise,<\/p>\n
even in Ex.P-1 this has not been so mentioned. Obviously<\/p>\n
therefore,        this    story       has    been      developed      by     these<\/p>\n
witnesses to make the Court believe that the victim raised<\/p>\n
a cry which attracted them and since at that time, victim<\/p>\n
was facing the witnesses, it has been deposed that accused<\/p>\n
caused injuries from the backside, so as to enable them to<\/p>\n
ask the Court to believe that they could see the accused<\/p>\n
also. Likewise, it is significant to note that all the<\/p>\n
three     witnesses       have    maintained        that     they    asked       the<\/p>\n
victim,     as     to    how    the   incident        occurred,     or     so    who<\/p>\n
inflicted the injuries, and that the Court is asked to<\/p>\n
believe that she gave out the accused to be the offender.<\/p>\n
It would suffice to say firstly that if the witnesses had<\/p>\n
themselves seen the accused causing injuries, there was no<\/p>\n
occasion for them to ask the victim, rather this clearly<\/p>\n
shows     that     the     witnesses        are     trying     to    project       a<\/p>\n
reassurance about having informed of the victim as well if<\/p>\n
somehow they are not believed to be eye-witnesses. Then a<\/p>\n
look at the statement of doctor P.W.19 shows that he has<\/p>\n
clearly deposed that there was no injury on the backside
\n                                                                                    14<\/span><\/p>\n
of the neck, and that after receiving injury No.1 she can<\/p>\n
possibly        not    been       in    a    condition    to   speak.     We      may<\/p>\n
recapitulate the dimension of injury No.1 being as under:-<\/p>\n
               “Incised   wound  24x5x9 cm  on  the  face
\n               extending from left ear upto 7 cm in the
\n               front of the right ear cutting the nose,
\n               transversely piercing the maxillary bones
\n               with clotted blood, and exposure of bones,
\n               vessels and muscles.”<\/p><\/blockquote>\n
               And this leaves no manner of doubt that the whole<\/p>\n
nose and maxilla was cut through and through from left ear<\/p>\n
to     right    ear.       Even    on       the   broad   commonsense,       it    is<\/p>\n
required to be comprehended that on receiving such injury<\/p>\n
she would lead profusely and an ordinarily built person<\/p>\n
may even loose senses and in any case cannot speak. Thus,<\/p>\n
this aspect also cast a serious dent in the reliability of<\/p>\n
the     three    witnesses         as       eye-witnesses.     Then    there      are<\/p>\n
contradictions in their evidence inter se, inasmuch as,<\/p>\n
P.W.5 chosen to introduce 5-6 villagers and Natha Kumhar<\/p>\n
but then none of them have been produced in the trial. AT<\/p>\n
this    place,        we   may    also      observe   the    over     anxiety     and<\/p>\n
unreliability of the three witnesses when they chose to<\/p>\n
depose    their        garments        to    have   not   received     any     blood<\/p>\n
stains, whether while putting the victim in the cot or<\/p>\n
putting her in the jeep, or handling her from here and<\/p>\n
there. Looking to the nature, dimension and location of<\/p>\n
the three injuries, this again is wholly impossible to<\/p>\n
believe that any person(s) handling such a victim would<\/p>\n
not receive any blood stains on the garments.<\/p>\n
               Much has been said by learned trial Court about<\/p>\n
this having not been suggested to the three witnesses that
\n                                                                        15<\/span><\/p>\n
at the house of Hasan Khan they were informed about the<\/p>\n
victim     lying in the riverbed by the children or that they<\/p>\n
having gone there at 3 to 4 P.M. or the like. It would<\/p>\n
suffice to observe that the cross-examination is directed<\/p>\n
in the direction of discrediting the presence of these<\/p>\n
witnesses on the spot at the time of incidence i.e. their<\/p>\n
being eye-witnesses and positive question has been put to<\/p>\n
them     about   their   having   not      seen   incident   and   there<\/p>\n
deposing on the basis of what they heard by the villagers.<\/p>\n
In our view, in the peculiar circumstances of the present<\/p>\n
case, this cross-examination cannot be discarded on the<\/p>\n
question of the witnesses having not been appropriately<\/p>\n
cross-examined.\n<\/p>\n<\/p>\n
            Coming to the recovery of the weapon; this again<\/p>\n
is a very interesting aspect, inasmuch as, the prosecution<\/p>\n
has sought to record        information under Section 27 and to<\/p>\n
recover the weapon pursuant thereto. The information memo<\/p>\n
is Ex.19, wherein he said to have given out that while<\/p>\n
running away from the place he has concealed the Kunt in<\/p>\n
the fencing of the field of Sohan Singh Ranawat known as<\/p>\n
Talab Wali Jameen, which he can get recovered. At this<\/p>\n
place, we may refer to the statement of P.W.11, who is the<\/p>\n
husband    of    the   victim   and   he    has   admitted   in    cross-<\/p>\n
examination that the children of the school have told him<\/p>\n
about the incident and that when he went to the spot, the<\/p>\n
victim was lying there, the weapon was not there and was<\/p>\n
seen by him lying in the fencing duly stained with blood.<\/p>\n
This makes it obvious that this witness has reached the<\/p>\n
spot before the victim was removed therefrom and at that<\/p>\n
time itself, he had seen the blood stained Kunt lying in
\n                                                                             16<\/span><\/p>\n
the fencing. In this background, if the site plan Ex.3<\/p>\n
regarding the incident and the site plan Ex.11 showing the<\/p>\n
place where the weapon was recovered are read together,<\/p>\n
this leaves no manner of doubt that the Kunt was recovered<\/p>\n
from the fencing near the place of incident itself, which<\/p>\n
fencing is of the field of Sohan Singh. It is established<\/p>\n
law that in such circumstances when the weapon of offence<\/p>\n
is already found, it might be recovered but then there is<\/p>\n
no discovery pursuant to the information said to have been<\/p>\n
given by the accused so as to be admissible under Section<\/p>\n
27 and to constitute as incriminating circumstance against<\/p>\n
the    accused.   Thus,       this    circumstance     also    is    of    no<\/p>\n
relevance.\n<\/p>\n<\/p>\n
            Then the next circumstance relied upon by the<\/p>\n
learned trial Court being the garment of the accused being<\/p>\n
stained   with    blood   of    the    same   group    as   that     of    the<\/p>\n
deceased is concerned, the accused in his statement under<\/p>\n
Section 313 has clearly deposed that he did not produce<\/p>\n
any shirt rather the shirt is of P.W.1 Han Muhammad, which<\/p>\n
has been shown to have been recovered from the accused. It<\/p>\n
would suffice to say that if the basic evidence of the<\/p>\n
eye-witnesses is found to be not reliable by finding the<\/p>\n
witnesses    to   be    not     eye-witnesses,       for    the     sake   of<\/p>\n
argument even if it were to be believed that the garments<\/p>\n
were   recovered,      that    by    itself   cannot   be     said    to    be<\/p>\n
constituting sufficient evidence to record conviction of<\/p>\n
the accused for a capital offence.\n<\/p>\n<\/p>\n
            Thus, in our view, the finding recorded by the<\/p>\n
learned trial Court are not at all sustainable and are
\n                                                                   17<\/span><\/p>\n
required to be set aside.\n<\/p>\n<\/p>\n
          Accordingly, the appeal is allowed. The impugned<\/p>\n
judgment is set aside, and the accused is acquitted of all<\/p>\n
the   charges.   He   be   set   at   liberty   forthwith   if   not<\/p>\n
required in any other case.\n<\/p>\n
( KISHAN SWAROOP CHAUDHARI ),J.                  ( N P GUPTA ),J.<\/p>\n
\/tarun\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Ayyub Khan vs State on 15 December, 2008 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-167504","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nAyyub Khan vs State on 15 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ayyub-khan-vs-state-on-15-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ayyub Khan vs State on 15 December, 2008 - 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