{"id":97438,"date":"2010-01-12T00:00:00","date_gmt":"2010-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-kayamdeen-ors-on-12-january-2010"},"modified":"2017-10-06T09:25:08","modified_gmt":"2017-10-06T03:55:08","slug":"state-vs-kayamdeen-ors-on-12-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-kayamdeen-ors-on-12-january-2010","title":{"rendered":"State vs Kayamdeen & Ors on 12 January, 2010"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
State vs Kayamdeen & Ors on 12 January, 2010<\/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\nThe State of Rajasthan       V\/s.          Kayamdeen & Ors.\n\n\n                  CRIMINAL APPEAL No.64 of 1986\n\n\nDate of Judgment             :                   12th Jan., 2010\n\n\n                           PRESENT\n                  HON'BLE SHRI N.P.GUPTA,J.\n                  HON'BLE SHRI C.M.TOTLA,J.\n\n\n\n\nMr. AR NIKUB, PP for the State.\nMr. NIRANJAN GAUR, for the respondents.\n\n\nBY THE COURT: (Per Hon'ble Gupta, J.)<\/pre>\n
            This appeal by the State has been filed to<\/p>\n
challenge the judgment of the learned Sessions Judge,<\/p>\n
Jodhpur dated 20.8.1985, acquitting the three accused<\/p>\n
respondents Kayamdeen, Jamaldeen and Kale Khan for the<\/p>\n
offence under Section 302 and 302\/34 so also 404 IPC.<\/p>\n
            The necessary facts are, that on 10.3.1982<\/p>\n
Nasirudin P.W.1 lodged an oral report Ex.P\/1 at Police<\/p>\n
Station Phalodi, to the effect, that in the area of<\/p>\n
village Khinchan, he was grazing his herd at about 12<\/p>\n
in   the   noon   on   hearing    the   shrieks,   whereupon   he<\/p>\n
ascended the sand dune and saw that Gafoor Khan son of<\/p>\n
Mahmood    Khan   resident   of    Naneu   was   running,   being<\/p>\n
chased by Kala son of Ismile Musalman resident of
\n                                                                                2<\/span><\/p>\n
Dayakaur, riding a camel, while the other two accused<\/p>\n
Jamaldeen     and     Kayamdeen           sons    of        Mehardeen       were<\/p>\n
following    on     foot,     all    the    three       were      armed     with<\/p>\n
Farsis. Kala rushed the camel and waylaid Gafoor and<\/p>\n
stopped him, in the meanwhile Kayamdeen and Jamaldeen<\/p>\n
also   arrived,      and     all    the    three     persons         inflicted<\/p>\n
injuries on Gafoor with Farsis and fell him down and<\/p>\n
even thereafter, gave beating. Then the victim was<\/p>\n
taken up on camel, held by Kala, while Kayamdeen and<\/p>\n
Jamaldeen     took     the       camel     towards      the       south.     The<\/p>\n
witness kept sitting at that place only, after the<\/p>\n
accused persons went quite far away, he followed them,<\/p>\n
and when he ascended the sand dune, he saw the three<\/p>\n
accused     persons    going        on    the     camel       and     at    some<\/p>\n
distance, he saw the dead body of Gafoor on the sand<\/p>\n
dune. Gafoor was having injuries on the head, face and<\/p>\n
neck, and was badly smeared with blood and had died.<\/p>\n
Then   he    carried       his     herd     towards         his     Dhani    and<\/p>\n
straight-way went to the house of Mahmood, the father<\/p>\n
of the deceased, narrated the whole thing to him,<\/p>\n
whereupon Mahmood told to be old man and would be<\/p>\n
going to dead body with other persons, and the witness<\/p>\n
was sent to Police Station for lodging the report. On<\/p>\n
this report, a case for offence under Section 302 IPC<\/p>\n
was    registered,         and      after        completing          necessary<\/p>\n
investigation,       challan        was    filed       in    the     Court    of<\/p>\n
Munsiff and Judicial Magistrate, Phalodi, wherefrom<\/p>\n
the case was committed.\n<\/p>\n<\/p>\n
            The learned trial Court charged the accused<\/p>\n
Kayamdeen for the offence under Section 302, in the
\n                                                                            3<\/span><\/p>\n
alternative 302\/34 and 404 IPC, while the other two<\/p>\n
accuseds were charged with the offence under Section<\/p>\n
302, and in the alternative 302\/34 IPC.<\/p>\n
               During    trial       the    prosecution       examined   16<\/p>\n
witnesses, and tendered in evidence some 34 documents.<\/p>\n
The accused persons in the statement under Section 313<\/p>\n
adopted the stand of denial, however in defence, the<\/p>\n
accused persons examined as many as 9 witnesses. The<\/p>\n
learned        trial    Court     after         completing      the   trial<\/p>\n
acquitted all the three accused persons as above.<\/p>\n
               We have heard learned Public Prosecutor and<\/p>\n
the learned counsel for the accused, and have also<\/p>\n
gone through the record.\n<\/p>\n<\/p>\n
               A look at the record shows, that the case<\/p>\n
rests     on     the    testimony          of     solitary     eye-witness<\/p>\n
Nasiruddin P.W.1. Of course some circumstances have<\/p>\n
also    been     relied    upon       by     the      prosecution,    being<\/p>\n
recovery of the weapons of offence, and recovery of<\/p>\n
blood stained cloths of the accused persons, so also<\/p>\n
recovery of some articles belonging to the deceased<\/p>\n
from    the     possession      of    the       accused     Kayamdeen.   The<\/p>\n
learned trial Court has found it to be very doubtful<\/p>\n
that Nasiruddin has seen the incident. Then so far<\/p>\n
recovery of blood stained articles are concerned, they<\/p>\n
have not been believed by learned trial Court, and the<\/p>\n
weapons recovered from the accuseds Jamaldeen and Kale<\/p>\n
Khan    have      not     been       found       to    be    incriminating<\/p>\n
circumstance, as those weapons have not been found to
\n                                                                             4<\/span><\/p>\n
be stained with human blood. Then regarding recovery<\/p>\n
of the articles belonging to the deceased, from the<\/p>\n
possession of Kayamdeen, it has been found that the<\/p>\n
prosecution has failed to prove that at the time when<\/p>\n
the    deceased      left   the    house       of   his     father-in-law<\/p>\n
Ibrahim P.W.11 at 8 AM he had carried two articles<\/p>\n
with him. Thus it has been found, that there is no<\/p>\n
reliable evidence led by the prosecution to establish<\/p>\n
the guilt.\n<\/p>\n<\/p>\n
             In view of the above, we have again examined<\/p>\n
the evidence of P.W.1 Nasiruddin. Before proceeding to<\/p>\n
appreciate the evidence of Nasiruddin, we may remind<\/p>\n
ourselves       of    the   established         legal       position,      as<\/p>\n
repeatedly propounded by Hon’ble the Supreme Court,<\/p>\n
that    where      the   case    rests    on    the    testimony      of    a<\/p>\n
solitary     witness,       then   the     witness        has   to   be    of<\/p>\n
sterling worth, inasmuch as, even if the witness is<\/p>\n
found to be partly reliable, still no conviction can<\/p>\n
be recorded on the evidence of such witness, in case<\/p>\n
he happens to be the solitary witness.\n<\/p>\n<\/p>\n
             Coming to the statement of P.W.1, he has<\/p>\n
stated that on the date of incident it was at about 12<\/p>\n
in    the   noon     that   he   was     grazing      his   herd     in   the<\/p>\n
boundary of village Khinchan, at which time he heard<\/p>\n
the shrieks, whereupon he rushed to ascend sand dune,<\/p>\n
and saw that Gafoor Khan was running, who was being<\/p>\n
chased by Kale Khan riding on the camel, and the other<\/p>\n
two accused persons were running behind, Kale Khan<\/p>\n
overtook the victim and stopped him, in the meantime
\n                                                                     5<\/span><\/p>\n
the other two accused persons also reached there, all<\/p>\n
these    were   armed   with    Farsis,    and      they   inflicted<\/p>\n
injuries to Gafoor. He claimed to be knowing the three<\/p>\n
accused persons, however, in the court he correctly<\/p>\n
identified only Jamaldeen and Kayamdeen, but regarding<\/p>\n
the third accused Kale Khan he gave out that at the<\/p>\n
time of incident, the accused was having muffled face,<\/p>\n
and therefore, he could not definitely identify the<\/p>\n
accused. He proceeds to further depose, that as a<\/p>\n
result of beating Gafoor fell down, still the accused<\/p>\n
persons inflicted injuries on him. Then Kalu took the<\/p>\n
victim on the camel, Kalu himself also rode on the<\/p>\n
camel, while Kayamdeen and Jamaldeen carried away the<\/p>\n
camel towards the western side, then the witness kept<\/p>\n
sitting there for 15-20 minutes, then he followed the<\/p>\n
accused persons on the basis of footprints, and found,<\/p>\n
that the dead body of Gafoor was lying on a sand dune,<\/p>\n
with injuries on head and neck and was lying in the<\/p>\n
pool of blood. There was injury on the right ankle as<\/p>\n
well, right eye was destroyed on account of injury.<\/p>\n
Then looking to the injuries of Gafoor, he returned to<\/p>\n
his herd and went to the house of Mahmood Khan, by<\/p>\n
then     it   was   already    5-5.30    PM.   He    narrated    the<\/p>\n
incident to Mahmood Khan, hearing which Mahmood Khan<\/p>\n
became    unconscious,    and    after    regaining        conscious,<\/p>\n
Mahmood Khan told to be going to dead body with other<\/p>\n
persons, and the witness was sent to lodge report at<\/p>\n
Police Station Phalodi. Then he carried his herd to<\/p>\n
his own house and went Phalodi, where he reached at<\/p>\n
about 12-1 in the night and lodged oral report, which<\/p>\n
he has proved to be Ex.P\/1. According to him Police
\n                                                                 6<\/span><\/p>\n
went to dead body in the night also and reached there<\/p>\n
at   about   2-2.30,     at   which   time   Mahmood   Khan   and<\/p>\n
Mehadra were also there. Then on the next morning<\/p>\n
inquest report was prepared, which has been proved to<\/p>\n
be Ex.2, site plan Ex.3 was prepared, site inspection<\/p>\n
note Ex.4 was also prepared. In cross-examination on<\/p>\n
behalf of accused Kale Khan he has maintained, that he<\/p>\n
could not identify the third accused on account of his<\/p>\n
face being muffled, but he described Kale Khan in his<\/p>\n
first report, as other accused Kamal was telling as<\/p>\n
Kalu should move the camel faster to stop Gafoor. Then<\/p>\n
he has maintained that this was not narrated by him to<\/p>\n
Mahmood, as to how he identified the accused Kalu.<\/p>\n
According to him the occurrence occurred at about 12<\/p>\n
in the noon and he reached Mahmood at about 5 in the<\/p>\n
evening. Then he was asked about many more Kalus in<\/p>\n
the village, to which he deposed ignorance. Then he<\/p>\n
has stated that when he disclosed the name of Kalu to<\/p>\n
the SHO, the police persons standing there told the<\/p>\n
father’s     name   of   Kalu   being   Ismile.   Then   he   was<\/p>\n
suggested the names of different Kalus with different<\/p>\n
fathers names, but the witness did not depose to be<\/p>\n
knowing them. However, he has maintained that he was<\/p>\n
not knowing Kalu since before. He has also stated that<\/p>\n
he did not inform the SHO about his naming Kalu on the<\/p>\n
ground of Kamal telling Kalu to move the camel faster<\/p>\n
and stop Gafoor. According to him he does not know as<\/p>\n
to whether Daya Kaur village comprises of 1500 houses,<\/p>\n
while his house is at a distance of 15-20 kms. there-<\/p>\n
from. Then in cross-examination on behalf of other two<\/p>\n
accused persons, he has stated to be having 100 cattle
\n                                                                                  7<\/span><\/p>\n
heads, being 90 sheep and 10 she-goat. He was asked<\/p>\n
various questions in order to test his reliability<\/p>\n
about there being any occasion for him to be there at<\/p>\n
the place of incident with the cattle heads, he was<\/p>\n
asked        few       questions         about      the     distance      between<\/p>\n
different ways going to different villages near the<\/p>\n
place, where he was alleged to be grazing the cattle.<\/p>\n
He has stated that the place, where dead body was put,<\/p>\n
is the field of Moola Ram Bhambhi, and that the place<\/p>\n
where beating was given was also field of somebody. He<\/p>\n
had shaken on the aspect about on what place i.e. on<\/p>\n
which way, the incident occurred, but then purported<\/p>\n
to be sure that the incident occurred on the way of<\/p>\n
Agore    at        a   distance          of     3-3\u00bd-4    kms.     from   village<\/p>\n
Khinchan. He has admitted that at the place, where<\/p>\n
incident occurred, there are high sand dunes, and has<\/p>\n
admitted that a man riding camel on the other side of<\/p>\n
the dune is also not visible. He is not aware as to in<\/p>\n
whose field he was grazing the cattle. However, in the<\/p>\n
vicinity       of      that        place,     the   crop     of    Taramera   was<\/p>\n
existing, that field might be of around 200 bighas.<\/p>\n
Likewise       at       the    time       when      the    incident       occurred<\/p>\n
Taramera crop was there in the fields, though it was<\/p>\n
not     in     the       field          where     the     incident     occurred.<\/p>\n
Regarding grazing of cattle, he has deposed that he<\/p>\n
grazes it in the vicinity of Naneu also, but normally<\/p>\n
he grazes it in the boundary of village Khinchan. He<\/p>\n
has   claimed          to     be    7    siblings,        others    being   doing<\/p>\n
labour, and that other inhabitants of Dhani at Naneu<\/p>\n
also graze cattle in the boundary of village Khinchan.<\/p>\n
He has denied the suggestion about there being no
\n                                                                      8<\/span><\/p>\n
water    body    in    the    village    Naneu,     rather    he   has<\/p>\n
maintained      that   there     is    one   Mokanadi,    which    was<\/p>\n
having water at that time also, which was sufficient<\/p>\n
to feed the cattle, and which water body is at a<\/p>\n
distance of about 3 kms. from his Dhani. Then he has<\/p>\n
stated that Mokanadi is in the boundary of village<\/p>\n
Khinchan, and in Naneu also there is another water<\/p>\n
body, which is at a distance of 1 km. from his Dhani.<\/p>\n
He has also deposed that the day of incident was the<\/p>\n
day following Holi, and therefore, other persons did<\/p>\n
not go to graze the cattle, but he had gone even<\/p>\n
before the day break, and at a distance of about 3-4<\/p>\n
kms. from his Dhani. According to him his other family<\/p>\n
members had gone to attend marriage of son of Jai<\/p>\n
Singh, he did not take any food in the day, he also<\/p>\n
stated that the place, where the dead body was lying<\/p>\n
is the field of Moola Ram Bhambhi in which Taramera<\/p>\n
crop was standing, but the dead body was not lying<\/p>\n
amidst the crop, but was lying in the side.                   Then he<\/p>\n
has stated that in between the place, where he was<\/p>\n
grazing the cattle and beating was given, there are 2-<\/p>\n
3 sand dunes, on hearing the shrieks he ascended the<\/p>\n
first sand dune, and even thereafter, he heard 2-3<\/p>\n
shrieks and had seen beating on ascending the first<\/p>\n
dune itself, and he stopped there. He claims to be<\/p>\n
hiding himself, and to have not raised the cry, being<\/p>\n
frightened      with   the    incident,      and   apprehending    the<\/p>\n
injury   to     himself      also.    According    to   him   accused<\/p>\n
persons did not see him, he is unable to give distance<\/p>\n
in between the two dunes. He has denied the suggestion<\/p>\n
about Gafoor having fallen down in the process of
\n                                                                               9<\/span><\/p>\n
running. The witness claims to have seen infliction of<\/p>\n
one blow on the head, other on the right leg and then<\/p>\n
Gafoor fell down, and even thereafter injuries were<\/p>\n
inflicted. However he is not able to depose, as to how<\/p>\n
many   injuries         were      caused    after      Gafoor     had    fallen<\/p>\n
down. However, one injury was inflicted on the right<\/p>\n
forehead, other on the face, third near the neck, the<\/p>\n
beating continued for 2-3 minutes. According to him<\/p>\n
after he descended the dune, accuseds were not visible<\/p>\n
to   him    and    he       did    not   follow   the     accused       persons<\/p>\n
either. He has not been able to show any reason as to<\/p>\n
why did he not narrate the details of the injuries<\/p>\n
seen   by    him       to    be    inflicted      to    the     victim.    Then<\/p>\n
according         to        him      accused          persons     Jamaldeen,<\/p>\n
Kayamdeen’s brother Yar Mohd. was murdered by Laldeen,<\/p>\n
Hazi Khan and Nihaldeen, who all are sons of Mahendra.<\/p>\n
He has denied the suggestion about proceedings having<\/p>\n
been initiated against the witness at the instance of<\/p>\n
Mehardeen after the murder of Yar Mohd. He has deposed<\/p>\n
ignorance about 107 proceedings having been initiated<\/p>\n
against Dabar son of Jagmal, Raniya son of Mehariya.<\/p>\n
According       to      him       near   his    field     there     is    Oran<\/p>\n
measuring about 500-550 bighas, but therein cattle are<\/p>\n
not grazed because of dearth of grass, and existence<\/p>\n
of stones. According to him in village Naneu there is<\/p>\n
a water tank, and small water bodies are there for<\/p>\n
providing drinking water to the cattle. According to<\/p>\n
him both the accused persons Kayamdeen and Jamaldeen<\/p>\n
earlier lived in village Naneu, and it is only after<\/p>\n
murder     of     Yar    Mohd.,      that      they    started    living    in<\/p>\n
village Mohra. He has maintained that when the police
\n                                                                                   10<\/span><\/p>\n
went on the spot he did not show the police the place<\/p>\n
where the accused persons had given beating to Gafoor.<\/p>\n
However, in the next morning it was shown. Then he has<\/p>\n
also stated that he had shown the police persons the<\/p>\n
place, where he was grazing the cattle, and the place,<\/p>\n
where-from he had seen the incident. Then he was asked<\/p>\n
questions about the garments being worn by the accused<\/p>\n
and the victim, and he stated that Gafoor was wearing<\/p>\n
a white head garment, white shirt and white Tahmad,<\/p>\n
but    he    could       not     narrate       the     garments       of    accused<\/p>\n
persons, purportedly on the ground, that he was under<\/p>\n
trauma.           Then     he    has     denied      suggestion        about     his<\/p>\n
having not gone on the place of incident on the date<\/p>\n
of    incident,       rather       to     be    busy      in   sale    of    cattle<\/p>\n
stock, and to have not seen the incident. This is the<\/p>\n
whole evidence of P.W.1.\n<\/p>\n<\/p>\n
                  From a reading of this evidence this much is<\/p>\n
clear,       that     in        F.I.R.     Ex.P\/1       he     has    given      the<\/p>\n
description of accused Kale Khan including parentage<\/p>\n
and place of residence, but then, while in the Court<\/p>\n
he has stated to have not been able to identify him<\/p>\n
properly, on account of the accused being with muffled<\/p>\n
face, and also states that the father’s name of the<\/p>\n
accused was given out by some police person available<\/p>\n
in the Police Station at the time when he lodged the<\/p>\n
report. It is also clear, that brother of the two<\/p>\n
accused       persons       Jamaldeen          and     Kayamdeen      being      Yar<\/p>\n
Mohd.       had    been     murdered,          and   it      has   come     in   the<\/p>\n
evidence of P.W.8 Mahmood Khan father of the deceased,<\/p>\n
that    4    years       ago     Yar     Mohd.    son     of   Mehardeen,        the
\n                                                                           11<\/span><\/p>\n
brother of accused Jamaldeen and Kayamdeen had been<\/p>\n
murdered, in which Gafoor was also one of the accused,<\/p>\n
and all the five accused persons in that case had been<\/p>\n
convicted      and   sentenced        to   8    years      imprisonment,<\/p>\n
against which conviction and sentence appeal had been<\/p>\n
filed in the High Court, which is pending, however,<\/p>\n
Gafoor was released on bail, and thereafter, Gafoor<\/p>\n
had    submitted     an   application        before       the   SDO    about<\/p>\n
danger    of    life      at   the     hands        of    Jamaldeen     and<\/p>\n
Kayamdeen, which does show that there was a motive<\/p>\n
available.\n<\/p>\n<\/p>\n
            In these circumstances, in our view, it is<\/p>\n
well    nigh   possible,       that    the     two       accused     persons<\/p>\n
Jamaldeen and Kayamdeen may have committed the murder<\/p>\n
of Gafoor. This is one aspect of the matter, but then<\/p>\n
it is established law, that motive by itself cannot<\/p>\n
furnish a ground for conviction, and the guilt of the<\/p>\n
accused    should    be    established         on    record     by    legal,<\/p>\n
reliable, admissible evidence, and it is also well-<\/p>\n
nigh possible, that Gafoor may have been murdered, and<\/p>\n
in view of the fact that Gafoor was already facing<\/p>\n
conviction on account of murder of the brother of the<\/p>\n
accuseds Kayamdeen and Jamaldeen, entertaining strong<\/p>\n
suspicion, Nasiruddin P.W.1 may have been introduced<\/p>\n
as eye-witness, to find support to the prosecution<\/p>\n
story, and then all necessary padding up may have been<\/p>\n
done. From a close reading of the entire record, in<\/p>\n
our view, this great suspicion, looming large in our<\/p>\n
mind is not cleared. In this background, a look at the<\/p>\n
statement of D.W.7 Krishna Saraswat would show, that
\n                                                                         12<\/span><\/p>\n
at   the    relevant     time    he   was        posted   as    Revenue<\/p>\n
Inspector, and had appeared in the witness-box along<\/p>\n
with the cattle census register, wherein the number of<\/p>\n
cattle heads with particular person is recorded, and<\/p>\n
according to that register, Nasiruddin was not having<\/p>\n
any herd of cattle heads, rather he was having only 6<\/p>\n
goat.   This    census   is     deposed     to    be   complete       upto<\/p>\n
15.4.83. This, coupled with the fact, that in the site<\/p>\n
inspection, the requisite marks which are expected to<\/p>\n
be available on spot of Nasiruddin grazing the cattle<\/p>\n
heads there, have not been found. Then the reasoning<\/p>\n
given by learned trial Court about Nasiruddin being<\/p>\n
not able to depose the garments, which the accused<\/p>\n
Kayamdeen and Jamaldeen were wearing, or even their<\/p>\n
colour,    becomes     very    significant,       inasmuch      as,    the<\/p>\n
incident is said to have occurred in the broad day<\/p>\n
light in the noon, and the witness claims to have seen<\/p>\n
the incident from the top of the sand dune. In this<\/p>\n
very sequence, the conduct of the witness is also<\/p>\n
significant, inasmuch as, he is grown up 31 years<\/p>\n
young man, and it is too much to believe that despite<\/p>\n
being there at a distance of 3 sand dunes, he would<\/p>\n
keep waiting there only till the accused persons go<\/p>\n
away with the corpse, then would see the location of<\/p>\n
the dead body, and would then come along with the herd<\/p>\n
to Mahmood Khan, and narrate the story to him. Since<\/p>\n
the occurrence is said to be in the broad day light,<\/p>\n
natural instinct would have been to immediately rush<\/p>\n
to   Mahmood     Khan,   and     inform     about      the     incident.<\/p>\n
Obviously      the   accused    and   the    dead      body    could   be<\/p>\n
traced even in that event with the footprint track. In
\n                                                                            13<\/span><\/p>\n
this sequence, further significantly the FIR has been<\/p>\n
lodged after a long delay, say at 1 in the night. It<\/p>\n
is also significant to note, that the day of incident<\/p>\n
admittedly is the day following the festival of Holi,<\/p>\n
and even according to P.W.1 on account of it being a<\/p>\n
festive day, other shepherds did not go to graze their<\/p>\n
cattle,     even    according     to   him   he    did       not    see   any<\/p>\n
shepherds grazing the cattle. This also shows that it<\/p>\n
is   only    an    excuse    projected       by    him       to    show   his<\/p>\n
presence on the spot.\n<\/p>\n<\/p>\n
             Then a combined reading of the statement of<\/p>\n
P.W.1 and P.W.16, the I.O. Jalam Singh, does show,<\/p>\n
that the possibilities are not ruled out about the<\/p>\n
witness being not in a position to see the incident in<\/p>\n
view of the intervening couple of high sand dunes, as<\/p>\n
according to the I.O. even the person riding a camel<\/p>\n
on the other side of the sand dune is not visible.<\/p>\n
This coupled with the fact, that despite the fact that<\/p>\n
witness P.W.1 deposed to have shown to the Police the<\/p>\n
place, where-from he has seen the incident, it is not<\/p>\n
so mentioned in the site plan, Ex.3, and P.W.16, I.O.,<\/p>\n
has clearly stated, that the place was not shown to<\/p>\n
him. Admittedly when P.W.1 was there at the time of<\/p>\n
preparation of site plan, if the witness had seen the<\/p>\n
incident,     the    place    where-from          he    had       seen,   was<\/p>\n
required to be shown in the site plan, at least to<\/p>\n
enable      the    Court     to   appreciate           the    reliability<\/p>\n
thereof. Thus, in our view, agreeing with the reasons<\/p>\n
given by learned trial Court it cannot be said, that<\/p>\n
P.W.1 is a witness of sterling worth, so as to place
\n                                                                             14<\/span><\/p>\n
reliance on any part of his evidence, by involved<\/p>\n
reasoning and the process of eliminating unreliable<\/p>\n
part of his evidence.\n<\/p>\n<\/p>\n
               Then after discarding the evidence of P.W.1,<\/p>\n
so far as circumstantial evidence produced on record<\/p>\n
is concerned, the reasoning given by learned trial<\/p>\n
Court     are    duly       supported      by    record,     and    a     mere<\/p>\n
recovery of weapon of offence from Kayamdeen is not<\/p>\n
itself sufficient, circumstance on the basis of which<\/p>\n
conviction can be recorded, as the law in regard to<\/p>\n
circumstantial         evidence      is    settled     by    Hon’ble       the<\/p>\n
Supreme Court, to the effect, that each circumstance<\/p>\n
relied     upon      by      prosecution        should;     (i)    indicate<\/p>\n
towards    the       guilt    of   the    accused,     (ii)       should    be<\/p>\n
established by legally admissible reliable evidence,<\/p>\n
(iii) all such circumstances, so established should<\/p>\n
form a complete chain establishing the guilt of the<\/p>\n
accused    and       (iv)    being      most    significant,       that    the<\/p>\n
chain     so    framed,       should      at    the   same    time,       also<\/p>\n
negative innocence of the accused on all reasonable<\/p>\n
hypothesis.\n<\/p>\n<\/p>\n
               In the present case, even if believing, the<\/p>\n
recovery        of    weapon       of     offence     is      a    solitary<\/p>\n
circumstance, on which no conviction can be recorded.<\/p>\n
               Thus, the result is that we do not find any<\/p>\n
sufficient ground to interfere with the judgment of<\/p>\n
the     learned       trial     Court      acquitting        the    accused<\/p>\n
persons.\n<\/p>\n
                                                           15<\/span><\/p>\n
          The   appeal   thus,   has   no   force   and   is<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
( C M TOTLA ),J.                       ( N P GUPTA ),J.\n\n\/tarun\/\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur State vs Kayamdeen & Ors on 12 January, 2010 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 […]<\/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-97438","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nState vs Kayamdeen & Ors on 12 January, 2010 - 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\/state-vs-kayamdeen-ors-on-12-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Kayamdeen & Ors on 12 January, 2010 - 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