S.B Sinha, J.— The appellants were convicted for commission of offences under Sections 302/149, 323/149 and 148 of the Penal Code, 1860 inter alia, for committing murder of Jharmal and Juhru and also causing hurt to Mubin on 26-10-1991 at about 1.00 a.m
2. The first information report in relation to the said incident was lodged at about 7.00 a.m on the same day by Kannu, son of Chhote Khan (brother of the deceased Jharmal and Juhru). The distance between the place of occurrence and the police station is said to be about six kilometres. The first informant had to walk to the police station for the purpose of lodging the first information report.
3. In the said first information report, it was alleged that when at about 1.00 a.m on the previous night the deceased and the injured were thrashing bajra, they were attacked by 12 persons, namely, Mohd. Ishaq, Sahid, Abdul Salam, Umar Mohd., Narangi, Liyakat Ali, Gernal, Jamalu, Alladdin, Rustam, Jamil, Mewan and Bilag. It was furthermore alleged that Sahid and Gernal were carrying .12 bore guns, Mohd. Ishaq, Abdul and the rest of the accused were having lathis.
4. On exhortation given by Mohd. Ishaq ordering to shoot down Jharmal and his two brothers, Sahid and Gernal allegedly fired shots from their guns.
5. The informant ran away from the said place and climbed on a nearby hill. He cried for help. Jharmal and Mubin also cried for help. They ran towards a well situated nearby. The accused killed Jharmal and Juhru by hitting them on their heads with lathis and tachia (a weapon like farsa). Mubin was also assaulted on his head and other parts of the body. Presuming all the three brothers to be dead the accused ran away. Allegedly the wooden portion of the gun of Sahid fell down at the place of occurrence.
6. The motive for commission of the said offence is said to be that Majid had some dispute in respect of a house with Jharmal.
7. It was also alleged that the accused persons took away a sum of Rs 1950 from the pocket of the “kurta” Juhru had then been putting on.
8. The learned Sessions Judge, while holding the appellants guilty of commission of the said offences, acquitted Majid, Umrao, Akhe Singh, Nooru, Kehar, Risal from the charge of conspiracy to murder the deceased. Sahid Ahmad, Daud Khan, Mohd. Ishaq, Abdul Salam, Narangi, Jamalu, Umar Mohd., Rustam, Alladdin and Jamil were also acquitted of the charges levelled against them under Sections 307 and 307/149 IPC. The learned trial Judge also acquitted Liyakat from the charges levelled against him.
9. Charges were found to have been proved against Sahid Ahmad, Daud Khan, Mohd. Ishaq, Abdul Salam, Narangi, Jamalu, Umar Mohd., Rustam, Alladdin and Jamil under Sections 148, 323/149, 302/149 IPC. Charges under Section 147 were also found to have been proved against Narangi, Jamalu, Umar Mohd., Rustam, Alladdin and Jamil. They were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs 1000 for commission of the offence under Sections 302/149 IPC; one month's rigorous imprisonment under Sections 323/149 IPC as also a fine of Rs 200. Narangi, Jamalu, Umar Mohd. Rustam, Alladdin and Jamil were also sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs 500 for commission of an offence under Section 148 IPC.
10. On appeals having been preferred by the accused, the High Court, while dismissing the appeals of Narangi, Jamalu, Umar Mohd. Rustam, Alladdin and Jamil, Sahid, Mohd. Ishaq and Abdul Salam, allowed the one preferred by Daud Khan.
11. Mr Brijender Chahar, learned counsel appearing on behalf of the appellants, in support of this appeal, inter alia, would submit that all the prosecution witnesses upon whom reliance has been placed by the learned Sessions Judge as also the High Court, being interested witnesses, the judgment of sentence and conviction is not sustainable.
12. It was pointed out that the prosecution case being based on the alleged motive in regard to land dispute by and between Majid and the deceased for commission of the offence and the State having failed to prove the same, the impugned judgment cannot be sustained.
13. It was contended that the “farsa” and “guns” which were said to be the weapons of offence having not been recovered, the prosecution story should not be relied upon. The theory of criminal conspiracy having been discarded, it was urged, it would not be safe to uphold the judgment of conviction and sentence as against the appellants.
14. Mr Ranbir Singh Yadav, learned counsel appearing on behalf of the appellant, Jamalu and others, also contended that the case of Jamalu being on the same footing as that of Daud Khan and the High Court having acquitted Daud Khan, there is absolutely no reason as to why Jamalu would not be similarly treated.
15. Mr Naveen Kumar Singh, learned counsel appearing on behalf of the respondent, however, supported the impugned judgment.
16. The incident, as noticed hereinbefore, took place in the dead of night. Two persons died and one was injured in the incident. The first informant went to Bhullu, PW 6, for getting the report written down. He immediately proceeded to the police station and got FIR lodged. Twelve persons were named in FIR.
17. Bhullu, PW 6, however, at a later stage disclosed that all the accused persons entered into a conspiracy for committing the murder. On the basis of the said statement, in all, eighteen persons were put to trial.
18. The trial Judge acquitted eight of them. One of the accused persons, namely, Gernal has been absconding. One of them, Ishaq, is said to be dead. As noticed hereinbefore, the High Court also by reason of the impugned judgment, acquitted one other.
19. The rest eight accused are before us.
20. PW 1, Mubin was an injured witness. He was mercilessly beaten. He, although was ultimately found to have suffered simple injuries, had fainted at the place of occurrence. Even when the first informant went to the police station to lodge FIR, he was lying unconscious at the place of occurrence. Apart from Mubin, Kannu the first informant and Deena examined themselves as PW 4 and PW 8 in support of the prosecution case. Besides Mubin, they were also eyewitnesses.
21. Autopsy on the body of the Jharmal and Juhru was conducted by Dr. Ram Swaroop Gupta who examined himself as PW 5. We may, at the outset, notice the external injuries found on the dead bodies:
“Juhru (Ext. P-14)
1. Lacerated wound with (sic) of scalp, over right pareito-occipital area of scalp with its tributaries measuring 3″ × 1/3″ × bone-deep and ½″ × ¼″ × 1/6″ brain tissue over the surface.
2. Incised wound 3″ × 1/3″ line deep segietal sntume (sic sagittal suture).
3. Incised wound 2″ × 1/3″ × bone-deep just in front of and to left of Injury 2 over left parietal area, longitudinally.
4. Lacerated wound 3″ × ½″ × bone-deep, just to the left on parietal to Injury 3 over left parietal area of scalp.
5. Incised wound 1½″ × ¼″ × bone-deep over middle of the sagittal suture, longitudinally.
6. Incised wound 1″ × ¼″ × bone-deep, obliquely over right parietal area of scalp near interior hair line.”
“Jharmal (Ext. P-15)
1. Incised wound 4″ × 1″ × brain-deep with cutting of bone part of brain with its meninges underneath it, over scalp of right parietal eminence. A piece of bone 1″ × ½″ is cut separated. Brain is lacerated and exposed on surface through the defect in the brain.
2. Incised wound 3″ × 2½″ × bone-deep over right parietal eminence. A flap of soft tissues is separated, 2½″ long, attached at its base.
3. Incised wound 5″ × ¼″ × bone-deep over occipital region behind and parallel to Injury 3.
4. Incised wound 4.5″ × ¼″ × bone-deep over occipital region behind and parallel to Injury 3.
5. Incised wound 3″ × 1/3″ × 1/8″ over upper part of back of neck.
6. Incised wound 1½″ × 1/3″ bone-deep over right parietal eminence.
7. Incised wound 2″ × ¼″ × bone-deep over left parietal area in front of Injury 7.
8. Lacerated wound 4¼″ × ¼″ × bone-deep over right side of upper part of forehead, transversely.
9. Irregular lacerated wound 2″ × ¼″ × bone-deep just left eye, brown, transversely.
10. Incised wound, slanting downwards, 3, ½″, ½″ × bone-deep over face transversely from left ear to angle of right eye left maxilla is fractured.
11. Incised wound 1″ × ¼″ whole thickness of left angle of mouth.
12. Lacerated wound 1″ × ¼″ × ¼″ behind left ear.
13. Gunshot wounds, two in number, over back of trunk, 9″ apart, one just outside of angle of left scapula, another in the midline at L 2-3 spine level, each about 4 mm × 4 mm in size with charred margins and base involving only partial thickness of skin. No pallet is seen or felt in either of the wounds nor any pallet recovered on dissecting the wounds. Underlying tissues are healthy.
14. Incised wound 1″ × ¼″ × ¼″ over back of upper third of left thigh.
15. Incised wound 1″ × ¼″ × ¼″ over back of upper third of left, 1″ below Injury 14.
16. Incised wound 1″ × ¼″ × ¼″ over back of middle third of left thigh.
17. Bruise 4″ × 1″ over front of upper third of left arm.”
22. Mubin (PW 1) also sustained injuries which as per injury report (Ext. P-13) are as under:
“1. Bruise with abrasion 3″ × 1″ over left side of front of chest over 6th, 7th ribs near costal margin.
2. Abrasion 1½″ × 1/3″ over back of middle third of left forearm.
3. Bruise ¼″ × ¼″ over ulnar aspect of wrist.
4. Bruise 1½″ × 1” over left leg just above lateral melleolus.
5. Bruise 4″ × ¾″ longitudinally over right shoulder.
6. Bruise 3″ × ¾″ anteroposteriorly over right shoulder across Injury 5.
7. Bruise 7″ × ¾″ over upper part of right scapula region and back of right shoulder.
8. Bruise 3″ × ¾″ over right scapula area below and parallel to Injury 7.
9. Bruise 9″ × ¾″ longitudinally over left side of back of chest just to right of mid line.
10. Bruise 4½″ × ¾″ over lower ribs on left side of back of chest.
11. Bruise 1½″ × 1¼″ just below and medial to Injury 11.
12. Bruise 4″ × ¾″ transversely across lower most ribs over right blank.
13. Lacerated wound 2½ cm × ½ cm × ½ cm over middle of scalp. A linear scar 5 cm × ¼ cm transversely over anterolateral aspect of middle third of right forearm.”
23. The injury report marked as Ext. P-13 in relation to Mubin (PW 1) revealed that he suffered as many as thirteen injuries. Injury 13 was a lacerated wound, being 2.5 cm × ½ cm over middle of scalp. A linear scar 5 cm × ¼ cm transversely over anterolateral aspect of middle third of right forearm.
24. We have referred to the injuries inflicted on the two deceased persons, as also injured Mubin, in details, only with a view to show that having regard to number of injuries inflicted on them, it may safely be assumed that a large number of persons took part therein.
25. Two gunshot injuries were suffered by Jharmal. Both the deceased had also suffered incised and lacerated wounds.
26. Both the courts below have arrived at a concurrent finding of fact that there was sufficient light for identification of the accused. The gunshot injuries suffered by Jharmal also establish that shot was fired from a close distance. Juhru also suffered a lacerated wound as also an incised wound in the parieto-occipital area of scalp.
27. FIR was lodged within a short time. It appears from the trend of cross-examination that apart from the alleged land dispute with Majid, a dispute existed between the parties in regard to one woman, Rehmati by name. According to the prosecution, Rehmati, the wife of Fulel, who was involved in a murder case, started living with the brother of PW 1. The appellant themselves suggested in cross-examination of the prosecution witnesses that there had been dispute between the family of Fulel and the family of the accused persons qua Rehmati.
28. It will bear repetition to state that PW 1 was an injured witness. He narrated the whole incident and described the manner in which it took place in some details. He was assaulted by lathis. He, although became unconscious, had sufficient time to notice the assaults caused by some of the appellants on Jharmal and Juhru. He had also disclosed the motive for commission of the said offence by the appellants.
29. PW 4 Kannu was the first informant. He, of course, in his statement before the police as also before the Court implicated a few persons who had not been named in FIR but the same by itself cannot be a ground to discredit his testimony in its entirety. In his evidence, he gave in detail the manner in which death was caused to Jharmal and Juhru and injuries to Mubin. PW 8 was Deena. According to this witness, he, at the time of occurrence, did not see Liyakat and Jamalu. We have noticed hereinbefore that the High Court had acquitted Liyakat. We may furthermore place on record that the counsel for the appellants other than Liyakat and Jamalu, brought to the notice of the said witnesses the statements made by him under Section 161 of the Code of Criminal Procedure where he had named Liyakat and Jamalu. An objection was taken thereto by the counsel for Liyakat and Jamalu but the same was overruled. It has been pointed out before us that according to the said witness exhortation was given by Md. Ishaq that Jharmal should not be left alive, whereas according to PW 1, exhortation was directed against both Jharmal and Juhru. We do not think that the said contradiction is of such a nature that would discredit either his testimony or that of PW 1. The evidences of the three eyewitnesses, namely, PW 1, PW 4 and PW 8 are almost identical. Some minor contradictions like the one which has been noticed by us heretobefore had been pointed out but the said contradictions, in our opinion, are not such which would discredit their testimonies in their entirety.
30. Indisputably, immediately after the lodging of FIR, the investigating officer came to the village. They went near the farm where the incident took place. Inquest report was also prepared without any loss of time. Even at that time, Mubin was unconscious. Inquest reports, Exts. P-6 and P-7 were witnessed, inter alia, by PW 2 and PW 3. Presence of Kannu, the informant, has also been testified by the said witnesses.
31. Oral testimonies of the said eyewitnesses get corroborated by the medical evidence. Homicidal nature of death of Jharmal and Juhru and injuries suffered by Mubin are not in dispute. No discrepancy between the ocular evidence and medical evidence has also been brought to our notice. It may further be placed on record that although the evidence of PW 6 Bhullu had not been relied upon by the learned trial Judge in regard to his statement of hatching of a conspiracy by all the accused persons to commit the said offence as the same had not been disclosed in FIR, there is no reason for us to disbelieve his statement to the effect that he had scribed FIR at about 5.00 a.m on 26-10-1996 and that at the request of PW 4 he wrote down the same.
32. Our attention has been drawn to the fact that Kannu did not disclose in FIR that PW 1 was lying unconscious. It is now well settled that FIR need not be encyclopaedic. It was a fact. It was found to be correct.
33. The defence had examined six witnesses. DW 1 Hussaina, DW 2 Ihsav, DW 3 Kallu, DW 4 Hafiz Mohd. and DW 5 Alladdin, in their depositions alleged that some unknown persons had committed murder of Jharmal and Juhru and caused injuries on the person of Mubin. DW 6, who was a part of the investigating team, alleged that during his investigation it was found that Mohd. Ishaq, Daud and Salam did not commit the offence. Both the courts had categorically held that the testimonies of DW 1 to DW 5 were not reliable. They were not examined by the police. Their statements had not been recorded under Section 161 of the Code of Criminal Procedure. They never volunteered to give their statement. No suggestion has been thrown to the prosecution witnesses that they were present at the time of occurrence or they had the occasion to acquire any authentic knowledge in regard to the incident. So far as the statement of DW 6 is concerned, it was based on his opinion. Ishaq has died. Daud has already been acquitted by the High Court.
34. We also do not find any force in the submission of the learned counsel that the weapons of offences were not recovered. In any event, non-recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the eyewitnesses examined by the prosecution are found to be trustworthy.
35. In Krishna Mochi v. State of Bihar (2002) 6 SCC 81 this Court held:
“37. It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them, which goes to show that they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable.”
36. Furthermore, as all the appellants before us were named in FIR, it was also not necessary to hold a test identification parade.
37. We are, however, of the opinion that in view of the fact that Daud had been given the benefit of doubt, as Jamalu stands on the same footing, he is also entitled to similar benefit and should, thus, be accorded benefit of doubt.
38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application of 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed.
39. We, therefore, dismiss Criminal Appeals Nos. 382-86 of 2004 (Umar Mohammad v. State of Rajasthan) and allow Criminal Appeal No. 387 of 2004 (Jamalu v. State of Rajasthan). If Jamalu is in custody, he shall be released forthwith unless wanted in connection with any other case.