The State of Rajasthan Vs. Kayamdeen and ors. - Court Judgment

Excerpt:
- n.p. gupta, j.1. this appeal by the state has been filed to challenge the judgment of the learned sessions judge, jodhpur dated 20.8.1985, acquitting the three accused respondents kayamdeen, jamaldeen and kale khan for the offence under section 302 and 302/34 so also 404 ipc.2. the necessary facts are, that on 10.3.1982 nasirudin p.w.1 lodged an oral report ex. p/1 at police station phalodi, to the effect, that in the area of village khinchan, he was grazing his herd at about 12 in the noon on hearing the shrieks, whereupon he ascended the sand dune and saw that gafoor khan son of mahmood khan resident of naneu was running, being chased by kala son of ismile musalman resident of dayakaur, riding a camel, while the other two accused jamaldeen and kayamdeen sons of mehardeen were following on foot, all the three were armed with farsis. kala rushed the camel and waylaid gafoor and stopped him, in the meanwhile kayamdeen and jamaldeen also arrived, and all the three persons inflicted injuries on gafoor with farsis and fell him down and even thereafter, gave beating. then the victim was taken up on camel, held by kala, while kayamdeen and jamaldeen took the camel towards the south. the witness kept sitting at that place only, after the accused persons went quite far away, he followed them, and when he ascended the sand dune, he saw the three accused persons going on the camel and at some distance, he saw the dead body of gafoor on the sand dune. gafoor was having injuries on the head, face and neck, and was badly smeared with blood and had died. then he carried his herd towards his dhani and straight-way went to the house of mahmood, the father of the deceased, narrated the whole thing to him, whereupon mahmood told to be old man and would be going to dead body with other persons, and the witness was sent to police station for lodging the report. on this report, a case for offence under section 302 ipc was registered, and after completing necessary investigation, challan was filed in the court of munsiff and judicial magistrate, phalodi, wherefrom the case was committed.3. the learned trial court charged the accused alternative 302/34 and 404 ipc, while the other two accuseds were charged with the offence under section 302, and in the alternative 302/34 ipc.4. during trial the prosecution examined 16 witnesses, and tendered in evidence some 34 documents. the accused persons in the statement under section 313 adopted the stand of denial, however in defence, the accused persons examined as many as 9 witnesses. the learned trial court after completing the trial acquitted all the three accused persons as above.5. we have heard learned public prosecutor and the learned counsel for the accused, and have also gone through the record.6. a look at the record shows, that the case rests on the testimony of solitary eye-witness nasiruddin p.w. 1. of course some circumstances have also been relied upon by the prosecution, being recovery of the weapons of offence, and recovery of blood stained cloths of the accused persons, so also recovery of some articles belonging to the deceased from the possession of the accused kayamdeen. the learned trial court has found it to be very doubtful that nasiruddin has seen the incident. then so far recovery of blood stained articles are concerned, they have not been believed by learned trial court, and the weapons recovered from the accuseds jamaldeen and kale khan have not been found to be incriminating circumstance, as those weapons have not been found to be stained with human blood. then regarding recovery of the articles belonging to the deceased, from the possession of kayamdeen, it has been found that the prosecution has failed to prove that at the time when the deceased left the house of his father-in-law ibrahim p.w. 11 at 8 am he had carried two articles with him. thus it has been found, that there is no reliable evidence led by the prosecution to establish the guilt.7. in view of the above, we have again examined the evidence of p.w. 1 nasiruddin. before proceeding to appreciate the evidence of nasiruddin, we may remind ourselves of the established legal position, as repeatedly propounded by hon'ble the supreme court, that where the case rests on the testimony of a solitary witness, then the witness has to be of sterling worth, inasmuch as, even if the witness is found to be partly reliable, still no conviction can be recorded on the evidence of such witness, in case he happens to be the solitary witness.8. coming to the statement of p.w. 1, he has stated that on the date of incident it was at about 12 in the noon that he was grazing his herd in the boundary of village khinchan, at which time he heard the shrieks, whereupon he rushed to ascend sand dune, and saw that gafoor khan was running, who was being chased by kale khan riding on the camel, and the other two accused persons were running behind, kale khan overtook the victim and stopped him, in the meantime the other two accused persons also reached there, all these were armed with farsis, and they inflicted injuries to gafoor. he claimed to be knowing the three accused persons, however, in the court he correctly identified only jamaldeen and kayamdeen, but regarding the third accused kale khan he gave out that at the time of incident, the accused was having muffled face, and therefore, he could not definitely identify the accused. he proceeds to further depose, that as a result of beating gafoor fell down, still the accused persons inflicted injuries on him. then kalu took the victim on the camel, kalu himself also rode on the camel, while kayamdeen and jamaldeen carried away the camel towards the western side, then the witness kept sitting there for 15-20 minutes, then he followed the accused persons on the basis of footprints, and found, that the dead body of gafoor was lying on a sand dune, with injuries on head and neck and was lying in the pool of blood. there was injury on the right ankle as well, right eye was destroyed on account of injury. then looking to the injuries of gafoor, he returned to his herd and went to the house of mahmood khan, by then it was already 5-5.30 pm. he narrated the incident to mahmood khan, hearing which mahmood khan became unconscious, and after regaining conscious, mahmood khan told to be going to dead body with other persons, and the witness was sent to lodge report at police station phalodi. then he carried his herd to his own house and went phalodi, where he reached at about 12-1 in the night and lodged oral report, which he has proved to be ex. p/1. according to him police went to dead body in the night also and reached there at about 2-2.30, at which time mahmood khan and mehadra were also there. then on the next morning inquest report was prepared, which has been proved to be ex. 2, site plan ex.3 was prepared, site inspection note ex.4 was also prepared. in cross-examination on behalf of accused kale khan he has maintained, that he could not identify the third accused on account of his face being muffled, but he described kale khan in his first report, as other accused kamal was telling as kalu should move the camel faster to stop gafoor. then he has maintained that this was not narrated by him to mahmood, as to how he identified the accused kalu. according to him the occurrence occurred at about 12 in the noon and he reached mahmood at about 5 in the evening. then he was asked about many more kalus in the village, to which he deposed ignorance. then he has stated that when he disclosed the name of kalu to the sho, the police persons standing there told the father's name of kalu being ismile. then he was suggested the names of different kalus with different fathers names, but the witness did not depose to be knowing them. however, he has maintained that he was not knowing kalu since before. he has also stated that he did not inform the sho about his naming kalu on the ground of kamal telling kalu to move the camel faster and stop gafoor. according to him he does not know as to whether daya kaur village comprises of 1500 houses, while his house is at a distance of 15-20 kms. therefrom. then in cross-examination on behalf of other two accused persons, he has stated to be having 100 cattle heads, being 90 sheep and 10 she-goat. he was asked various questions in order to test his reliability about there being any occasion for him to be there at the place of incident with the cattle heads, he was asked few questions about the distance between different ways going to different villages near the place, where he was alleged to be grazing the cattle. he has stated that the place, where dead body was put, is the field of moola ram bhambhi, and that the place where beating was given was also field of somebody. he had shaken on the aspect about on what place i.e. on which way, the incident occurred, but then purported to be sure that the incident occurred on the way of agore at a distance of 3-31/2-4 kms. from village khinchan. he has admitted that at the place, where incident occurred, there are high sand dunes, and has admitted that a man riding camel on the other side of the dune is also not visible. he is not aware as to in whose field he was grazing the cattle. however, in the vicinity of that place, the crop of taramera was existing, that field might be of around 200 bighas. likewise at the time when the incident occurred taramera crop was there in the fields, though it was not in the field where the incident occurred. regarding grazing of cattle, he has deposed that he grazes it in the vicinity of naneu also, but normally he grazes it in the boundary of village khinchan. he has claimed to be 7 siblings, others being doing labour, and that other inhabitants of dhani at naneu also graze cattle in the boundary of village khinchan. he has denied the suggestion about there being no water body in the village naneu, rather he has maintained that there is one mokanadi, which was having water at that time also, which was sufficient to feed the cattle, and which water body is at a distance of about 3 kms. from his dhani. then he has stated that mokanadi is in the boundary of village khinchan, and in naneu also there is another water body, which is at a distance of 1 km. from his dhani. he has also deposed that the day of incident was the day following holi, and therefore, other persons did not go to graze the cattle, but he had gone even before the day break, and at a distance of about 3-4 kms. from his dhani. according to him his other family members had gone to attend marriage of son of jai singh, he did not take any food in the day, he also stated that the place, where the dead body was lying is the field of moola ram bhambhi in which taramera crop was standing, but the dead body was not lying amidst the crop, but was lying in the side. then he has stated that in between the place, where he was grazing the cattle and beating was given, there are 2- 3 sand dunes, on hearing the shrieks he ascended the first sand dune, and even thereafter, he heard 2-3 shrieks and had seen beating on ascending the first dune itself, and he stopped there. he claims to be hiding himself, and to have not raised the cry, being frightened with the incident, and apprehending the injury to himself also. according to him accused persons did not see him, he is unable to give distance in between the two dunes. he has denied the suggestion about gafoor having fallen down in the process of running. the witness claims to have seen infliction of one blow on the head, other on the right leg and then gafoor fell down, and even thereafter injuries were inflicted. however he is not able to depose, as to how many injuries were caused after gafoor had fallen down. however, one injury was inflicted on the right forehead, other on the face, third near the neck, the beating continued for 2-3 minutes. according to him after he descended the dune, accuseds were not visible to him and he did not follow the accused persons either. he has not been able to show any reason as to why did he not narrate the details of the injuries seen by him to be inflicted to the victim. then according to him accused persons jamaldeen, kayamdeen's brother yar mohd. was murdered by laldeen, hazi khan and nihaldeen, who all are sons of mahendra. he has denied the suggestion about proceedings having been initiated against the witness at the instance of mehardeen after the murder of yar mohd. he has deposed ignorance about 107 proceedings having been initiated against dabar son of jagmal, raniya son of mehariya. according to him near his field there is oran measuring about 500-550 bighas, but therein cattle are not grazed because of dearth of grass, and existence of stones. according to him in village naneu there is a water tank, and small water bodies are there for providing drinking water to the cattle. according to him both the accused persons kayamdeen and jamaldeen earlier lived in village naneu, and it is only after murder of yar mohd., that they started living in village mohra. he has maintained that when the police went on the spot he did not show the police the place where the accused persons had given beating to gafoor. however, in the next morning it was shown. then he has also stated that he had shown the police persons the place, where he was grazing the cattle, and the place, where-from he had seen the incident. then he was asked questions about the garments being worn by the accused and the victim, and he stated that gafoor was wearing a white head garment, white shirt and white tahmad, but he could not narrate the garments of accused persons, purportedly on the ground, that he was under trauma. then he has denied suggestion about his having not gone on the place of incident on the date of incident, rather to be busy in sale of cattle stock, and to have not seen the incident. this is the whole evidence of p.w.1.9. from a reading of this evidence this much is clear, that in f.i.r. ex. p/1 he has given the description of accused kale khan including parentage and place of residence, but then, while in the court he has stated to have not been able to identify him properly, on account of the accused being with muffled face, and also states that the father's name of the accused was given out by some police person available in the police station at the time when he lodged the report. it is also clear, that brother of the two accused persons jamaldeen and kayamdeen being yar mohd. had been murdered, and it has come in the evidence of p.w. 8 mahmood khan father of the deceased, that 4 years ago yar mohd. son of mehardeen, the brother of accused jamaldeen and kayamdeen had been murdered, in which gafoor was also one of the accused, and all the five accused persons in that case had been convicted and sentenced to 8 years imprisonment, against which conviction and sentence appeal had been filed in the high court, which is pending, however, gafoor was released on bail, and thereafter, gafoor had submitted an application before the sdo about danger of life at the hands of jamaldeen and kayamdeen, which does show that there was a motive available.10. in these circumstances, in our view, it is well nigh possible, that the two accused persons jamaldeen and kayamdeen may have committed the murder of gafoor. this is one aspect of the matter, but then it is established law, that motive by itself cannot furnish a ground for conviction, and the guilt of the accused should be established on record by legal, reliable, admissible evidence, and it is also well- nigh possible, that gafoor may have been murdered, and in view of the fact that gafoor was already facing conviction on account of murder of the brother of the accuseds kayamdeen and jamaldeen, entertaining strong suspicion, nasiruddin p.w.1 may have been introduced as eye-witness, to find support to the prosecution story, and then all necessary padding up may have been done. from a close reading of the entire record, in our view, this great suspicion, looming large in our mind is not cleared. in this background, a look at the statement of d.w. 7 krishna saraswat would show, that at the relevant time he was posted as revenue inspector, and had appeared in the witness-box along with the cattle census register, wherein the number of cattle heads with particular person is recorded, and according to that register, nasiruddin was not having any herd of cattle heads, rather he was having only 6 goat. this census is deposed to be complete upto 15.4.83. this, coupled with the fact, that in the site inspection, the requisite marks which are expected to be available on spot of nasiruddin grazing the cattle heads there, have not been found. then the reasoning given by learned trial court about nasiruddin being not able to depose the garments, which the accused kayamdeen and jamaldeen were wearing, or even their colour, becomes very significant, inasmuch as, the incident is said to have occurred in the broad day light in the noon, and the witness claims to have seen the incident from the top of the sand dune. in this very sequence, the conduct of the witness is also significant, inasmuch as, he is grown up 31 years young man, and it is too much to believe that despite being there at a distance of 3 sand dunes, he would keep waiting there only till the accused persons go away with the corpse, then would see the location of the dead body, and would then come along with the herd to mahmood khan, and narrate the story to him. since the occurrence is said to be in the broad day light, natural instinct would have been to immediately rush to mahmood khan, and inform about the incident. obviously the accused and the dead body could be traced even in that event with the footprint track. in this sequence, further significantly the fir has been lodged after a long delay, say at 1 in the night. it is also significant to note, that the day of incident admittedly is the day following the festival of holi, and even according to p.w.1 on account of it being a festive day, other shepherds did not go to graze their cattle, even according to him he did not see any shepherds grazing the cattle. this also shows that it is only an excuse projected by him to show his presence on the spot.11. then a combined reading of the statement of p.w.1 and p.w.16, the i.o. jalam singh, does show, that the possibilities are not ruled out about the witness being not in a position to see the incident in view of the intervening couple of high sand dunes, as according to the i.o. even the person riding a camel on the other side of the sand dune is not visible. this coupled with the fact, that despite the fact that witness p.w.1 deposed to have shown to the police the place, where-from he has seen the incident, it is not so mentioned in the site plan, ex. 3, and p.w.16, i.o., has clearly stated, that the place was not shown to him. admittedly when p.w.1 was there at the time of preparation of site plan, if the witness had seen the incident, the place where-from he had seen, was required to be shown in the site plan, at least to enable the court to appreciate the reliability thereof. thus, in our view, agreeing with the reasons given by learned trial court it cannot be said, that p.w.1 is a witness of sterling worth, so as to place reliance on any part of his evidence, by involved reasoning and the process of eliminating unreliable part of his evidence.12. then after discarding the evidence of p.w.1, so far as circumstantial evidence produced on record is concerned, the reasoning given by learned trial court are duly supported by record, and a mere recovery of weapon of offence from kayamdeen is not itself sufficient, circumstance on the basis of which conviction can be recorded, as the law in regard to circumstantial evidence is settled by hon'ble the supreme court, to the effect, that each circumstance relied upon by prosecution should; (i) indicate towards the guilt of the accused, (ii) should be established by legally admissible reliable evidence, (iii) all such circumstances, so established should form a complete chain establishing the guilt of the accused and (iv) being most significant, that the chain so framed, should at the same time, also negative innocence of the accused on all reasonable hypothesis.13. in the present case, even if believing, the recovery of weapon of offence is a solitary circumstance, on which no conviction can be recorded.14. thus, the result is that we do not find any sufficient ground to interfere with the judgment of the learned trial court acquitting the accused persons.15. the appeal thus, has no force and is dismissed.