SATTAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 29/08/2003 passed by learned Additional District and Sessions Judge (Fast Track No.1 Kota in Sessions Case No.70/2003 whereby, the accused appellants were convicted and sentenced in the following manner: all the accused appellants Sattar, Sonu @Mohd.Aasif and Sultan convicted for offence u/S.302 IPC sentencing them to life imprisonment with fine of Rs.5,000/ each and in the event of failure to pay fine, they were to further undergo simple imprisonment of one month, convicted for offence u/S.450 IPC sentencing them to rigorous imprisonment of ten years with fine of Rs.1,000/ each and in the event of failure to pay fine, they were to further undergo simple imprisonment of six months and convicted for offence u/S.4/25 of the Arms Act sentencing them to imprisonment of two years with fine of Rs.1,000/ each and in the event of failure to pay fine, they further were to further undergo simple imprisonment of six months. All the sentences were ordered to run concurrently.

(2.) BRIEF facts of the case are that a 'written report' (Exb.P/12 was lodged by complainant Abdul Hakim (PW12 to SHO Police Station Kotwali Kota on 24/02/2003 on the basis of which first information report was chalked out and registered vide FIR No.83/2003 (Exb.P/13 with Police Station Kotwali Kota for offence u/Ss.302 and 450/34 IPC. The investigation commenced and the accused were arrested. After conclusion of investigation, the challan was filed against them. Charges were framed for offence u/Ss.302, 302/34 and 450 IPC and Section 4/25 of the Arms Act, which the accused denied and claimed to be tried. Prosecution produced twenty four witnesses and exhibited fifty two documents. Defence produced three witnesses and exhibited seven documents. Upon conclusion of the trial, trial court convicted and sentenced the accused appellants in the manner indicated above.

(3.) SHRI Suresh Chand Goyal, learned counsel for accused appellants Sonu @Mohd.Aasif and Sultan argued that none of the witnesses relied on by the trial court in recording the finding of conviction and sentence were in fact the eye witnesses. They were all planted witnesses and they falsely claimed to have witnessed the incident. Learned counsel submitted that Mubina (PW10 , mother of deceased Sanu has stated that deceased left the house for hair cut for the barbour shop situated in the market. After some time, she also went to the market for purchasing vegetables from the street vendor adjacent to the temple of Bhaironji. At that time, she witnessed that accused appellants were fighting with her son Sanu in the shop of barbour Radheyshyam. Accused caused injuries in the chest of her son Sanu. She cried for help. Sharif was also inside the shop. He was smeared in blood when he came out of the shop. She made a phone call to her husband on the shop, where he was employed. Her husband immediately came there. Learned counsel submitted that in cross examination, she has stated that she made phone call from the house of Fatima and at the same time, she stated that she did not inform Fatima about the incident. Her husband was employed only about a month in the shop where she made phone call. She is an illiterate lady and how could she remember the phone number of her husband is surprising. Her husband Abdul Hakim (PW12 has also claimed that he received the information from the phone call made to his shop by his wife. He was employed with tailoring shop of one Mr.Jain, who picked up the phone and asked him to take to her (his wife . He left the shop immediately with Dilip, son of Mr.Jain, who dropped him on his scooter. Even though, both these witnesses have narrated the incident as if they witnessed the incident, whereas the fact is that they both reached the place of occurrence much after the incident had taken place and accused had left. Learned counsel submitted that neither Mr.Jain nor his son Dilip, who is said to have dropped Abdul Hakim (PW12 , was produced. In cross examination, Mubina (PW10 has stated that the police had come to their house on the next day of incident. There was no explanation why her statement was not recorded on the next day. Learned counsel submitted that distance of the shop in which Abdul Hakim (PW12 was employed from the place of occurrence has not been proved. By no stretch of imagination, it can be believed that both Mubina (PW10 and Abdul Hakim (PW12 reached the place of incident immediately when the accused started beating the deceased, which clearly show that they have falsely claimed to be eye witnesses. In fact, they did not see the incident. Other witnesses are also highly interested witnesses. They are Abdul Hakim S/o Abdul Sattar (PW16 , real brother of Mubina (PW10 and Fajlu Ahmed (PW18 , husband of Mubina's elder sister, who are though ostensibly shown as chance witnesses but in fact are planted witnesses. They had no business to be in the market at that point of time. Therefore, their presence is doubtful. It would be highly unsafe to believe their testimony. Learned counsel in this connection submitted that though incident had taken place on 24/02/2003, but statement of Mubina (PW10 was recorded by the police u/S.161 Cr.P.C. on third day of incident on 26/02/2003 and statements of Abdul Hakim (PW12 , Abdul Hakim (PW16 and Fajlu Ahmed (PW18 were recorded much thereafter on 02/03/2003. There was every chance of these witnesses making concoction in their version.