ASHRAF Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellants Salim, Ashraf, Raees, Anis Kalu Rafiq, alongwith Peelu and Bhura were indicted before the learned Special Judge, Communal Riots casescum Additional Sessions Judge, Tonk, for having committed murder of Mohammad Arshad in Sessions Case No. 11/1993 (49/92). The learned Additional Sessions Judge after finding them guilty vide judgment dated 4/8/1995, convicted and sentenced them as under: - Kalu alias Rafiq, Ashraf, Salim, Raees and Anis, u/s. 302 r/w 149 IPC to suffer imprisonment for life and a fine of Rs. 3,000/- each in default to further undergo six months simple imprisonment. Under Sec. 148 IPC to suffer six months rigorous imprisonment. The accused Bhura was acquitted whereas accused Peelu had absconded during the trial. Against this judgment of conviction that the present action for filing the appeal has been resorted to by the appellants.

(2.) The prosecution story is like this. On the basis of Parcha Bayan Ex. P/22 of Mohammad Arshad (now deceased) Ex. P 122, the Police Station Kotwali Tonk, registered a case u/ss. 147-307. IPC and investigation commenced. Injured. Mohammad Arshad was referred to S.M.S. Hospital, where he died at 10.00 a.m. on 6/6/1992. Autopsy on the body of Mohammad Arshad was conducted vide Ex. P/8, according to which the deceased sustained as many as six ante mortem injuries. Therefore, the case was converted u/s. 302 IPC. Statements of witnesses u/s. 161 Cr. P.C. were recorded. Accused were arrested and weapons of offence were recovered at the instance of accused persons. Site was inspected. Site plan was drawn and on conclusion of investigation, charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge. Tonk. Charges u/ss. 147, 148, 302, in the alternative 302/149 IPC were framed. The accused denied the charges and claimed trial. As many as 21 witnesses were examined in support of the prosecution. In their explanation u/s. 313 Cr. P.C. the accused claimed innocence. Five witnesses in defence were examined by the accused. The learned trial Judge on hearing the final submissions convicted and sentenced the accused appellants as herein above.

(3.) We have heard learned counsel appearing for the appellants as well as learned Public Prosecutor and learned counsel for the complainant and closely scanned the record. The eyewitnesses Jeewat Ram PW-1 Raghuvir Songar PW-2, Khalid PW-3, Parvez Ali PW-4, Naved Shami Khan PW-5, Nizamudin PW-6, Aziz PW-7 and Mohammad Ayub PW-12 did not support the prosecution case and were declared hostile. The case of the prosecution rests on the dying declaration of the deceasedMohammad Arshad and the statement of Roopa Ram Choudhary. S.1. PW-18, who recorded the said dying declaration therefore, we proceed to analysis the truthfulness of the dying declaration Ex. P/22. The dying declaration of Mohammad in the form of parchabayan was recorded by Roopa Ram Choudhary S.I., on 5/6/1992 at 2.00 p.m. in the Sahadat Hospital Tonk. In his deposition Mohammad Arshad stated that around 1.30 p.m. when he was coming out from the shoes shop after purchasing the shoes. 15-20 persons armed with sword dharia and knives assaulted him. Ashraf inflicted sword blow on his head. Raees inflicted knife blow on his chest. Bhura Mewati, Anis Satoria, Salim Mewati, Kalu Mewati and 10-15 other persons caught hold of him and beat him indiscriminately. Naved Samim and others had seen the occurrence. Bystanders intervened and saved his life. Mohammad Arshad put his signatures on the said Parcha Bayan as Arshad KesriT. At this juncture we would like to refer the injuries sustained by the deceased. A look at the postmortem report Ex. P/8 demonstrates that the deceased sustained as many as six injuries thus: (1) stitched wound 3 cms long having 3 stitches on dorsomedial surface of left thumb at its proximol part. (2) Incised wound 4 cm into 1 cm into muscle deep placed obliquely on first web space between right thumb and right index finger with dried clotted blood. (3) Stitched wound 5 cm long having 5 stitches on Left Temporal area upper part placed transversely. (4) Stitched wound 1.5 cm long having 2 stitches on area 4 cm left lateral to left nipple placed obliquely. (5) Stitched wound 24 cm long having 24 stitches placed transversely and a little oblique upto left lateral side of chest extending from left side sternum. This stitched wound is at the level 5 cm below left nipple. On dissection underneath muscles at the level of 5th inter costal space found stitched on the inner aspect of chest wall probably done surgically for surgical treatment. (6) Incised wound 1 cm long placed obliquely at left 7th inter costal space probably done surgically for putting inter costal drainage tube. All injuries were ante mortem in nature. The cause of death was shock as a result of the injury to heart. The injuries to heart were sufficient to cause death in the ordinary course of nature. Evidently the deceased sustained injuries on the surface of left thumb and between right thumb and right index finger.