SULEMAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) These two appeals arise out of the same judgment of the Allahabad High Court. Suleman, Kamal Khan and Rehman are the Appellants in the first appeal and Mallas and Jom Khan are the Appellants in the other appeal i.e. Appeal No. 424 of 1984. These five Appellants, along with Fauju, Nasim Khan and several others numbering 15 were tried for offences punishable under Ss. 302/149, 307/149, IPC. Fauju and Nasim Khan were also tried under Ss. 148 and 302, IPC. The prosecution case is that there was a bitter enmity between the group belonging to Fauju and Iliyas and their family members and associates. There were a number of incidents earlier. On the day of occurrence, i.e. 7/3/78, these accused formed into an unlawful assembly and attacked the other group. Fauju said to have shot at Illiyas. Nasib Khan shot at Sedu, who fell down and died. Iliyas and Sedu are the two deceased persons in these appeals. Further case of prosecution is that Suleman and Jom Khan were also armed with fire arms which they used as a result of which P.Ws. 2, 3 and 4 received injuries. For the said offences, the accused were also punished under Ss. 307, 307/149, IPC. Before the trial Court, the Assistance Public Prosecutor withdrew cases against eight accused. The remaining seven accused faced the trial. The trial Court convicted Fauju and Nasib Khan under Ss. 302 and 148 IPC. Simpliciter whereas the remaining five were convicted under Ss. 302, 302/149 and 147, IPC. Since the injured witnesses turned hostile, the charges under Ss. 307, 307/149 were not held proved. Two separate special leave petitions were filed and the same were dismissed as against Fauju and Nasib Khan.

(3.) The High Court relied on the evidence of PWs. 14, 15, 16 and 17 who are not injured witnesses. We have gone through their evidence. So far as overt acts in respect of Suleman and Jom Khan are concerned, their evidences is to the effect as if Suleman and Jom Khan fired at the witnesses, while Kamal and Mallas supplied cartridges. So far as Rehman is concerned, no overt acts has been attributed. Under the circumstances, the question is whether all these five Appellants in these two appeals can be roped in by application of Sec. 149, I.P.C. The High Court itself has pointed out in the course of judgment that the prosecution evidence as given by P.Ws. 14 to 17 that Mallas and Kamal were supplying cartridges is somewhat exaggerated. Having made such an observation, yet the High Court proceeded to convict them also by applying Sec. 149, I.P.C. merely because their presence was spoken to by these witnesses, we think by itself, may not be a ground to rope them in since the case is the same as against the other eight accused against whom it was withdrawn. Now, coming to Rehman. No overt acts have been attributed against him. Therefore, his case falls in the same category. Then we are left with Suleman and Jom Khan. No doubt, the witnesses-P.Ws. 14 to 17 have deposed that they fired at the witnesses. But as mentioned above, these witnesses who were alleged to have received injuries did not attribute any overt acts to them and they were treated hostile. Further, no weapons were recovered from these accused nor there is any substantial evidence which shows the presence of cartridges. On the other hand, the High Court observed the prosecution case against Mallas and Kamal is an exaggerated version. Suleman and Jom Khan are alleged to have fired the guns by using cartridges supplied by these two accused and the Injured witnesses themselves do not say anything against these accused and when once a charge under Sec. 307/149, I.P.C. is held not proved, then the question of applying Sec. 302/149, I.P.C. on the basis of their presence is highly unsafe. In the result, both the appeals are allowed. If the Appellants are on bail, they need not surrender. Their bail bonds stand cancelled.