FAKIR MOHAMMAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed by the accused-appellant against the judgment of the learned Additional Sessions Judge, Bhilwara dated April 30, 1990 by which he has been convicted under Sections 302 and 364 I.P.C. and sentenced to undergo imprisonment for life and 10 years respectively. He has also been sentenced to pay a fine of Rs. 200/- under Section 364, I.P.C. and in default of payment of fine to undergo rigorous imprisonment for four months. The prosecution case may be summarised as follows.

(2.) The co-accused Rahamatulla (already acquitted by this Court on May 3, 1986, judgment reported in Rahamatulla v. State of Rajasthan; 1986 Cr. L.R. (Raj.) 567) and the accused appellant Fakir Mohd are first cousins. The deceased Surya Prakash, aged 22 years, was the elder brother of Chandra Prakash, P.W. 18. The deceased was a photographer and was carrying on business in Jahajpur (Bhilwara) under the name and style of Mis Laxmi Photo Studio. On March 6, 1979 at about 2 p.m., both the accused came to the deceaseds Studio and requested him to take their photographs at the Fort. The deceased Surya Prakash acceded to their request and accompanied them with his camera Art. 2 and flash gun to the Fort. He was then wearing wrist watch. The accused-appellant Fakir Mohd had a bag containing one bed sheet and one nylon card. In the way, the party met some persons. Some of them also requested the deceased Surya Prakash to take their photographs and the latter told them that he would take their photograph while returning. Both the accused and the deceased reached the Shitlamata temple situated on the Fort. In the vicinity of the temple, the deceased took two photographs of the co-accused Rahamatulla and one photograph of the accused appellant Fakir Mohd. While he was taking the third photograph of the co-accused Rahamatulla, the accused appellant Fakir Mohd suddenly spread his bed sheet over the head of the deceased Surya Prakash and the co-accused Rahamatulla tied his hands and feet with the nylon cord. The accused-appellant Fakir Mohd. felled the deceased down, he sat on his chest and pressed his throat continuously till he breathed his last. The accused persons collected his camera Art. 2, flash gun Art. 3 and the wrist watch of the deceased and placed them in a corner. After sun set, they took the victim's dead body and put it in a ditch near the Fort. The camera Art. 2, Flash gun Art. 3, wrist watch Art. 4 and the said cord Art. 1 were taken away by the accused- appellant Fakir Mohd. On March 7,1979 at about 9.30 A.M., the Police constable Mohanlal P. W. 7 noticed the said dead body lying in the ditch. He submitted written report Ex. P/10 before the S.H.O., Police Station, Jahajpur. F.I.R. Ex. P/10A was registered under Sections 302 and 364, I.P.C. Usual investigation was commenced. The S.H.O. Shyam Sunder P.W. 24 came to the place where the dead body was lying and prepared the inquest report Ex. P/12 and site plan Ex. P/11. He recovered remaining piece of nylon cord Art. 9 from the place near the Shitlamatas temple. The cloth of the deceased Surya Prakash were also seized and sealed. Dr. Ram Gopal P.W. 21 conducted the postmortem examination on the dead body of the deceased and prepared postmortem report Ex. Pin. In his opinion, the cause of death was asphyxia due to throttling. On March 10, 1979, the accused appellant Fakir Mohd. was arrested through arrest memo Ex. P/21 and on March 11, 1979 the co-accused Rahamatulla was arrested through arrest memo Ex. P/34. In consequence of the information Ex. P/33 furnished by the accused appellant Fakir Mohd camera, flash gun and wrist watch were recovered from different places. The co-accused Rahamatullah also gave information and in pursuance thereof, nylon piece was recovered. Thereafter, both the accused were sent to judicial custody. On March 17, 1979, the accused Rahamatulla made confession Ex. P/32 before the Munsif cum Judicial Magistrate, Sri C.L. Bajaj P.W. 25. On March 19, 1979, the accused appellant Fakir Mohd. made confession Ex. P/28 before the Munsif cum Judicial Magistrate Shri Udai Chand Barupal P.W. 23. In the identification test, camera Art. 2, Hash gun Art. 3 and wrist watch Art. 4 were correctly identified to be of the victim Surya Prakash by his younger brother Chandra Prakash P.W. 18 and Ramesh Chandra P.W. 17. In presence of Tehsildar Ram Narayan P.W. 1 camera was opened and reel Art. 5 was removed, it was developed by the photographer Guman Singh P.W. 19 and their positive photographs Ex. P/6, P/7 and P/8 were prepared. After completing investigation, the police filed challan against the accused Rahamatulla and Fakir Mohd in the court of Munsif cum Judicial Magistrate, Jahajpur who in turn committed them to the court of sessions.

(3.) The case was transferred to the court of Additional Sessions Judge, Bhilwara for trial. He framed charge under Sections 302, 302/34 and 364, I.P.C. against both the accused persons. They did not plead guilty and claimed trial. The accused persons either denied the prosecution story or pleaded their ignorance. In their statements recorded under Section 313, Cr. P.C. they retracted from their judicial confessions Ex. P/28 and P/32 and said that they were recorded on the dictation of the police officers and their signatures were simply taken on them. The accused appellant Fakir Mohd has further stated that the Dy. S.P. Narendra Mohan P.W. 20 took them to the fort on March 11, 1979 and got their photographs taken by Shakil photographer. He has also disclosed that till his statement Ex. P/28 was not recorded, he was kept in the police station, there he was repeatedly told that he would be released if he gave statement against the co-accused Rahamatulla and for the first time he Was admitted in the jail on March 15, 1979 and the same day he was taken out. He also stated that before his arrest, Hanif P.W. 14 met him at Bhilwara on March 6,1979, he told him that he had brought a camera and he invited him to Ajmer. No witness was produced in defence by any accused.