UMAR MOHAMMAD & ORS. v. STATE OF RAJASTHAN

Citation: [2007] 13 S.C.R. 273

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

UMAR MOHAMMAD & ORS. v. STATE OF RAJASTHAN.pdf

Judgment text

UMAR MOHAMMAD & ORS. ' --+ v. STATE OF RAJASTHAN DECEMBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Penal Code, 1860 - ss. 3021149, 3231149, 148 and 147 - Murder oftwo and injuries to one, over dispute between parties - ~- Conviction and sentence by Courts below - Sustainability of - Held: Number ofinjuries inflictedon deceasedpersons and injured show that large number afpersons tookpart- There was sufficient light for identification ofaccused - FIR was lodged in short time - Oral testimonies of eyewitnesses was corroborated by medical evidence - Minor contradictions in the evidence of eyewitnesses would not discredit their testimonies in entirety- Non-disclosure of certain facts in FIR and also non-recovery ofweapons ofoffence would not affect the prosecution case - Thus, orders of courts below sustainable except for one accused who is given benefit of doubt - Evidence.

According to the prosecution case, over a property dispute 12 armed persons including the appellants attacked JM, JR and M. It is alleged that IA gave exhortation to shoot JM and his brothers. Accused hit JM and JR with lathis resulting in their death and assaulted Mon his head and other parts of the body. First informant ran away from the place ofincident and went to PW-6, nephew ofJM and JR. PW-6 then lodged the FIR. He also gave his statement. Prosecution examined PW 1-M, injured witness, PW-4- first informant and PW-8. They were also eyewitnesses. Trial court convicted and sentenced the appellants under sections 148, 323/149 and 302/149 IPC. Appellants N, J, . ,,. UM, R, A and JL were also convicted and sentenced u/s 147 IPC. Aggrieved, appellants filed appeals and the same were dismissed ·-,: except appeal of D. Hence, the present appeals. Dismissing Criminal appeal Nos. 382-386 of 2004 and allowing Criminal Appeal No. 387 of2004, the Court. -t- HELD: 1.

1 The injuries inflicted on the two deceased persons, as also injured witness in details, 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. The gun shot injuries suffered by JM also establish that shot was fired from a close distance. Further, both the courts below arrived at a concurrent finding of fact that there was sufficient light for 'i identification of the accused. [Paras 23, 24 and 26) [282-G; 283- A-B] 1. 2 The evidences of the three eye witnesses, namely, PW-1, PW-4 and PW-8 are almost identical. They narrated the whole incident and described the manner in which it took place. Some minor contradictions had been pointed out but the said contradictions are not such which would discredit their testimonies in their entirety. [Para 29) [284-B) 1. 3 FIR was lodged within a short time.

It appears from the cross-examination that apart from the alleged land dispute with MJ, a dispute existed between the parties in regard to one woman, R. Further, immediately after the lodging of the FIR, the Investigating Officer came to the place ofincident. Inquest report was also prepared without any loss oftime. Even at that time, M was unconscious. Inquest reports were witnessed, by PW-2 and PW-3. Presence of the informant, was also testified by the said \ witnesses. [Paras 27 and 30) [283-B; 284-C] "i 1. 4 Oral testimonies of the said eye witnesses got corroborated by the medicalevidence. No discrepancy between the ocular evidence and medical evidence was brought to the notice: Homicidal nature of death of JM and JR and injuries suffered by M are not in dispute. Although the evidence of PW- ...

6 was not relied upon by 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 the FIR, UMARMOHAMMAD & ORS. 275 v. STATE OF RAJASTHAN there is no reason to disbelieve his statement to the effect that he scribed the FIR at about 5. 00 a. m. on 26. 10. 1996 and that at ~ the request ofPW-4 he wrote down the same. Further, the informant did not disclose the fact in the FIR that PW-1 was lying unconscious. It is now well settled that FIR need not be encyclopedic. It was a fact. It was found to be correct. [Paras 31 and 32) [284-D-G) 1. 5 There is no force in the submission that the weapons of y offences were not recovered. In any event, non-recovery of incriminating material from the accused cannot be a ground to • exonerate them ofthe charges when the eye-witnesses examined by the prosecution were found to be trustworthy. [Para 34] [285-D] Krishna Machi & Ors. v.

State ofBihar 2002 (6) SCC 81 relied on. 1. 6 As all the appellants were named in the FIR, it was also not necessary to hold a test identification parade. [Para 36) [285-G) -::1, 1. 7 The defence examined six witnesses who in their depositions alleged that some unknown persons had committed murder of JM and JR and caused injuries on the person of M. DW-6, who was a part of the investigating team, alleged that during his investigation it was found that IA, D and S did not commit the offence. Both the courts had categorically held that the testimonies ofDW-1 to DW- 5 were not reliable. So far as the statement ofDW-6 is concerned, it was based on his opinion. IA died. D was acquitted by the High Court. [Para 33) [284-H; t 285-A-C] 1. 8 In view of the fact that D was given the benefit of doubt, as J stands on the same footing, he is also entitled to similar benefit and should, thus, be accorded benefit of doubt. [Para 37] [285-H; 286-A] --... " 1.

9 It is not a case where stricto sensu the provisions of Section 311 Cr. P. C. could have been invoked. The very fact that such an application was 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 submit that he, after a period offour years and that . r-too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. Therefore, the application u/s 311 Cr. P. C. was rightly dismissed. [Para 38) [286-C-D) CRIMINALAPPELLATE JURISDICTION: Criminal Appeal Nos. 382-386 of 2004. From the Judgment and Order dated 29. 5. 2003 ofthe High Court of Judicature for Rajasthan at Jaipur Bench, in D. B. Cr!. A. Nos. 57I 1999, 810/1998, 807/1998, 138/1999 and 374/2003. WITH CRIMINAL APPEAL NO. 387 of2004 Brijender Chahar, AltafHussain and ILL. Bajaj, Ranbir Singh Yadav and Vijay K. Pandit for the Appellants.

;- Naveen Kumar Singh (for Aruneshwar Gupta), Manish Kumar and AnsarAhmad Chaudhary, for the Respondent. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1. Appellants were convicted for commission of offences under Sections 302/149, 323/149 and 148 ofthe Indian Penal Code, inter alia, for committing murder ofJharmal and Juhru and also causing hurt to Mubin on 26th October, 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 ofChhote Khan (brother ofthe deceased Jharmal andJharu). The distance between the place ofoccurrence and the police station is said to be about six kilometers. The first informant had to walk to the police station for the prnpose oflodging 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 injured were thrashing bazra, they were attacked by 12 persons, namely, Mohd. Ishaq, Sahid, Abdul Salam, Umar Mohd. , Narangi, LiyakatAli, Gernal, :i Jamalu, Alladdin, Rustam, Jamil, Mewan and Bilag. It was furthennore allegedthat Sahid and Gemal were carrying 12 Bore guns, Mohd. IshaqAbdul and the rest ofthe accused were having lathis. 4. On exhortation given by Mohd. Ishaq ordering to shoot down Jhannal and his two brothers, Sahid and Gema! allegedly fired shots ·r from their guns. 5. The infonnant ran away from the said place and climbed on nearby hill. He cried for help. Jhannal and Mubin also cried for help. They ran towards a well situated nearby. Accused killed Jhannal and Juhrubyhitting them ontheirheads with lathis and Tachia (aweapon like Farsa). Mubin was also assaulted on his head and other parts ofthe body. Presuming all the three brothers to be dead the accused ran away.

Allegedly the wooden portion ofthe gun ofSahid fell down at the place -~, ofoccurrence. 6. The motive for commission ofthe said offence is said to be that Majid had some dispute in respect ofa house with Jhannal. 7. It was also alleged that the accused persons took away sum ofRs. 1950/-from the pocket ofthe 'kurta', Juhruhad 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 ofconspiracy to murder the deceased. Sahid Ahmad, Daud Khan, Mohd. Ishaq, Abdul Salam, Narangi, Namalu, Umar Mohd. , Rustam, Alladin and Jamil were also acquitted ofthe charges levelled against them under Sections 307 and 307/149 IPC. The learned Trial Judge also acquitted Liyaqat from the charges levelled against him. "" -( 9. Charges were found to have been proved against SahidAhmad, Dau Khan, Mohd. Ishaq,Abdul Salam, Narangi, Jamalu, Umar Mohd.

, Rustam, Alladin and Jamil under Sections 148, 323/149, 302/149 IPC. Charges under Section 147were also found to have been proved against Narangi, Jamalu, Umar Mohd. , Rustam, Alladin and Jamil. They were Jsentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. I000/- for commission ofthe offence under Section 302/149 IPC; one month's rigorous imprisonment under Section 3231149 IPC as also fine ofRs. 200/-. Narangi, Jamalu, Umar Mohd. Rustam,Alladeen and Jameel were also sentenced to undergo one year 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 ofNarangi, Jamalu, Umar Mohd. Rustam,Alladeen and Jamil, Sahid, Mohd. , Ishaq and Abdul Salam, allowed the one preferred by Daud Khan. 11. Mr.

Brijender Chahar, learned counsel appearing on behalfof the appellants, in support ofthis appeal, inter alia, would submit that all the prosecution witnesses upon whom reliance h~ been placed by the ): learned Sessions Judge as also the HighCourt, being interested witnesses, the judgment ofsentence and conviction are 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 ofthe 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 ofoffence having not been recovered, the prosecution f story should not be reliedupon. The theory ofcriminal conspiracy having been discarded, it was urged, it would not be safe to uphold thejudgment ofconviction and sentence as against the appellants. 14. Mr.

Ranbir Singh Yadav, learned counsel appearing on behalf , of the appellant, Jamallu and others, also contended that the case of Jamallu being on the same footing as that ofDaud Khan and the High )- Court having acquitted Daud Khan, there is absolutely no reason as to why Jamallu would not be similarly treated. 15. Mr. Navin Kumar Singh, learned counsel appearing on behalf ~ ofthe respondent, however, supported the impugned judgment. 16. The incident, as noticed hereinbefore, took place at the dead ofnight. 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 the FIR lodged. Twelve persons were named in the 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 ofthe said statement, in all, eighteen persons were put to trial. 18.

The Trial Judge acquitted eight ofthem. One ofthe accused persons, namely, Gemal has been absconding. One ofthem, Ishaq, is said to be dead. As noticed hereinbefore, the High Court also by reason ofthe impugned judgment, acquitted one other. -1. 19. The rest eight accused are before us. 20. PW-1, Mubin was an injured witness. He was mercilessly beaten. He, although ultimately found to have suffered simple injuries, had fainted at the place ofoccurrence. Even when the first informant went to the police station to lodge the FIR, he was lying unconscious at the place ofoccurrence. Apart from Mubin, Kannu the first informant and Deena examined themselves as PW-4 and PW-8 in support ofthe prosecution case. Besides Mubin, they were aiso eye witnesses. 21. Autopsy on the body ofthe Jhannal and Juhru was conducted by Dr. Ram Swaroop Gupta who examined himselfas PW-5. We may, at the outset, notice the external injuries found on th. e dead bodies : "JUHRU (EXp-14):- . 1.

Lacerated wound with # ofscalp, over Rt. Pareito occipital -y ' area ofscalp with its tributaries mea-;uring 3'"x1/3" x bone deep and W'x 1/4"1/6"brain tissue over the surface. 2. Incised wound 3"xl/3" line deep segietal sntume. 3. Incised would 2"xl/3"x bone deepjust in front ofand to left ofinjury No. 2 over left parietal area, longitudinally; 't- 4. Lacerated wound 3" x 'l'. z" x bone deep, just to the left on parietal to injury No. 3 over left parietal area ofscalp. 5. Incised wound 1-W'xl/4" x bone deep over middle ofthe sagital suture, longituadinally. 6. Incised wound l" x W' x bone deep, obliquely over Rt. Parietal area ofscalp near interior hair lime. " JHADMAL (EX. P-15) 1. Incised wound, 4"xl" x Braindeep with cutting ofbone part ofbrain with its menings underneath it, over scalp ofRt. Parietal Eminence. Apiece ofbone l"x112" is cut separated. Brain in lacerated andexposed on surface throughthe defect in the brain. J- 2. Incised would 3"x2,1/2"x bone deep over Rt.

Parietal eminence. Aflap ofsoft tissues is separated, 2, 112" long, attached at its base. 3. Incised would 5"xl/4"x bone deep over occipital region behind and parallel to injury No. 3. 4. Incised would 4. 5"xl/4"x bone deep over occipital region behind and parallel to injury No. 3 ·. ~ l; 5. Incised would 3"xl/3" xl/8" over upper part of back of neck. 6. Incised would 1,1 /2"xl/3" bone deep over Rt. Parietal Eminence. 7. Incised would 2"x. '::l/4"x bone deep over left parietal ar~a infrontofinjury No. 7. 8. Lacerated wound 4,l/4"xl/4" x Bone deep over Rt. Side ofupper part offorehead, transversely. 9. Irregular lacerated wound 2"xl/4"x bpne deepjust left eye ~ brown, transversely. 10. Incised wound, slanting downwards, 3, 1/2'', Yi" x bone deep over face transversely from left ear to angle oflt. eye Left maxilla is fractured. 11. Incised wound I" x 1. 1. i" whole thickness oflt. angle ofmouth. 12. Lacerated wound l ''xl/4"xl/4" behind left ear. 13.

Gunshot wounds, two in number, over back oftrunk, 9" apart, onejustoutside ofangle ofLt. Scapula, another in the rnidline at L2-3 spine level, each about 4mm x 4mm in size withcharredmargins and base involving onlypartial thickness ofskin No. pallet is seen or felt in either ofthe wounds nor any pallet recovered on dissecting the wounds. Underlying tissues are healthy. -:le. 14. Incised wound l" xl/4"xl/4" over back ofupper third of lt. thigh. 15. Incised wound l"xl/4"xl/4" overback ofupperthird ofleft ·E 1" below injury No. 14. 16. Incised wound 1"xl/4"xl/4" over back ofmiddle third of leftthigh. 17. Bruise 4"x1" over front ofupper third ofleft arm. " 1- 22. Mubin (PW. I) also sustained injuries which as per injilly report (Ex. P-13) are as under :- "I. Bruise with abrasion 3"x l" over Lt. Side offront ofchest over 6th 7th ribs near costal margin. 2. Abrasion l,l/2"xl/3" over back of middle third of Lt. Forearn. "( 3. Bruise 1/. i" x W' over ulnar aspect ofwrist. 4.

Brise l,l/2"xl' over Lt. Leg daist above lateral melleolus. 5. Bruse 4"x3/4" longitudinalty over Rt. Shoulder. ~ 6. Bruse 3" x3/4" antero posteriorly over Rt. Shoulder across injury No. 5 7. Bruise 7"x3/4" over upper part ofRt. Scapula region and back ofRt. Shoulder. 8. Bruise 3"x3/4" over it Rt. Scapula area below and parallel to inj. No. 7. 9. Bruise 9" x3/4" longitudinally over Lt. Side ofback ofchest just to Rt. ofMid. Line. 10. Bruise 4-112" x %"over lower ribs on Lt. Side ofback of chest. 11. Bruise 1-112" x 1,114"just below and medial to inj. No. 11. 12. Bruise 4"x3/4" transversely across lower most ribs over Rt. ,r Blank. 13. Lacerated wound 2 - Yi cm x Yz cm x Yz cm over middle ofscalp. A lineat scare 5cm x V. cm transversely over antero lateral aspect of middle third ofRt forearm. " 23. The injury report marked as Ex. P-13 in relation to Mubin (PW-1) revealed that he suffered as many as thirteen injuries. Injury No. 13 was a lacerated wound, being 2.

5 cm x Yz cm over middle of scalp. A linear; scare 5 cm x V. cm transversely over antero lateral aspect ofmiddle third ofRt. 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 ofpersons took part therein. 25. Two gun shot injuries were suffered by Jharmal. Both the deceased had also suffered incised and lacerated wounds. UMARMOHAMMAD&ORS. v. STATE OF 283 26. Both the courts below have arrived at a concurrent finding of ~ fact that there was sufficient light for identification ofthe accused. The gun shot 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 pareito occipital area ofscalp. 27. FIR was lodged within a short time.

It appears from the trend ofcross-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 ofFulel, who was involved in a murder case, started living with the brother ofPW-I. Appellantthemselves suggested i. rt cross-examination ofthe prosecution witnesses that there had been dispute between the family ofFulel and the family ofthe accused persons qua Rehmati. 28. It will bearrepetition to state that PW-I 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 :l became unconscious, had sufficient time to notice the assaults caused by some ofthe appellants on Jharmal and Juhru. He had also disclosed the motive for commission ofthe 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 the FIR but the same by itself cannotbe a ground to discredithis testimony in its entirety. Inhis evidence, ... he gave in details the manner in which death was caused to Jharmal and r Juhru and injuries to Mubin. PW-8 was Deena. According to this witness, he, at the time ofoccurrence, did not see Liyakat and Jamallu. 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 Jamallu, brought to the notice ofthe said witnesses the statements made by him under Section 161 ofthe Code ofCriminal 'Y, Procedure where he had named Liyakat and Jamallu. An objection was taken thereto by the counsels for Liyakatand Jamallu but the same was over-ruled. It has been pointed out before us that according to the said witness exhortation was given by Md.

Ishad that Jharmal should not be left alive, whereas according to PW-1, exhortation was directed against both Jhannal and Juhru. We do not think that the said contradiction is f~ ofsuch a nature that would discredit either his testimony or that ofPW- 1. The evidences ofthe three eye witnesses, 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 theirtestimonies in their entirety. 30. Indisputably, immediately after the lodging ofthe 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 oftime. Even at that time, Mubin was unconscious. Inquest reports Exb. P-6 and P-7 were witnessed, inter alia, by PW-2 and PW-3. Presence ofKannu, the informant, has also been testified by the said witnesses. 31.

Oral testimonies ofthe said eye witnesses get corroborated by ). the medical evidence. Homicidal nature ofdeath ofJhannal and Juhru and injuries sufferedby 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 Guluhad not been relied upon by the learned Trial Judge inregard to his statement ofhatching ofa conspiracy by all the accused persons to commit the said offence as the same had not been disclosed in the FIR, there is no reason for us to disbelieve his statement to the effect that he has scribed the FIR at about 5. 00 a. m. on 26. l0. 1996 and that at f 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 the FIR that PW-1 was lying unconscious. It is now well settled that FIR need not be encyclopedic. It was a fact. It was found to be correct. 33.

The defence had examined six witnesses. DW-1 Hussaina, y DW-2 Ihsav, DW-3 Kallu, DW-4 Hafiz Mohd. , and DW-5 Alladin, in their depositions alleged that some unknown persons had committed UMARMOHAMMAD&ORS. v. STATE OF 285 murder ofJharmal and Juhru and caused injuries on the person ofMubin. ~. ' j _. , DW-6, who was a part ofthe 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 Code ofCriminal Procedure. They never volunteered to give their statement. No suggestion has been thrown to the prosecution witnesses that they were present at the time ofoccurrence or they had the occasionto acquire any authentic knowledge inregardto 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 ofthe learned counsel that the weapons ofoffences were not recovered. In any event, non-recovery ofincriminating material from the accused cannot be a -;( ground to exonerate them of the charges when the eye-witnesses examined by the prosecution are found to be trustworthy. 35. In Krishna Mochi & Ors. v. State ofBihar [(2002) 6 SCC 81], this Court held : "It has been then submitted onbehalfofthe 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 ofno incriminating material from the accused cannot alone be -t taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account ofthe 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 the FIR, it was also not necessary to hold a test identification parade. 37. We are, however, ofthe opinion that in view ofthe fact that Daud had been given the benefit ofdoubt, as Jummal stands on the same footing, he is also entitled to similarbenefit and should, thus, be accorded benefit ofdoubt. 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 ofthe Code ofCriminal Procedure was rejected by the learned Trial Judge by order dated 13. 5. 1995. Arevision petition was filed thereagainst and the High Court also rejected the said contention.

It is not a case where stricto sensu the provisions ofSection 311 ofthe Code ofCriminal Procedure could have been invoked. The veiy fact that such an application was got filed by PW-1 nine months after his deposition is itselfpointer 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-inchiefand 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 appeal Nos. 382-386 of2004 [Umar Mohammad & Ors. v. State ofRajasthan] and allow Criminal AppealNo. 387 of2004 [JamallusonofAsheen v. State ofRajasthan). IfJamallu is in custody, he shall be released forthwith unless wanted in connection with any other case. NJ. C. A. 382-386/2004 dismissed and C. A. 387 of2004 allowed.