STATE OF RAJASTHAN Vs. SADDIQ

JUDGEMENT

(1.) THE respondents Saddiq, Mohammed, and Dayam were prosecuted for the offence under Section 307, IPC, and the other two respondents, namely, Sumer and Mana were presecuted for the offence under Sec. 307/302 , IPC . The learned Additional Sessions Judge No. l, Jodhpur, after trial, acquitted all the five accused -respondents of the said offences by his judgment dated 20 -2 -1974.

(2.) THE prosecution case, in brief, is that a police party consisting of Head Constable Jugat Singh, Gaimer Singh, Chatar Singh and Shaitan Singh proceeded for patrolling in the night of 19 10 -1972 at about 10.00, p.m At about 10.30, p.m. near the crossing of Satto Mayajalar, they concealed themselves behind the sand dune and they spotted at about 11 or 11.30, p.m , 12 persons on the camels' back They were proceeding in the direction, in which the police party was laying ambush. They were spotted when the police party was at a distance of about 300 steps from them. When the accused party was at a distance of 100 'Paundas', the police party stopped them by making a call exhorting that they are smugglers. It is alleged that three persons, namely, the accused persons ayam, Saddiq and Mohammed got down from the camels and they opened firing at the police party. In defence the police party also opened fire. Head Constable Jugat Singh and Guimer Singh also identified the respondents Mana and Surroaria and two Pak national Ridia and Ratania. Thereafter the accused party made good their escape leaving two camels and same goods. The police party followed them and at a distance of about 1 1/2 miles they caught held of one camel and goods and at a further distance they seized ten bags of Bidi leaves and ten bags of Ilayachi, Jugat Singh sent a written report, through foot constable Girdhargar to the S.H.O., Police Station, Sam. The same was recorded in the Rojnamcha, as the S.H O. was not present at the Police Station and and on arrival of the S.H.O., case was registered and investigation was commenced. Spot investigation was done and in the course of spot investigation 6 empties, found at the spot, were recovered, From the side of the police party 44 rounds were fired. Their empties were also recovered. The accused Dayam was arrested on 26 -10 -1972, Sumar was arrested on 27 -10 -1972. Mohammed on 12 -11 -1972, Saddiq on 10 -12 -1972 and Mana on 28 -12 -1972. After completion of investigation, a challan was put up against the five accused persons and the five accused persons were ultimately tried by the learned Additional Sessions Judge No. 1, Jodhpur, Saddiq, Mohammed and Dayam were charged of the offence under Section 307, IPC. and Sumar and Mana were charged of the offence under Section 307/34, IPC. They, however, pleaded not guilty to the charge and claimed to be tried. At the trial, the prosecution examined nine witnesses, namely, Jugat Singh (PW 1), Darsanlal (PW 2), Inder Singh (PW 3), Gaimer Singh (PW 4), Shaitan Singh (PW 5), Dhir Singh (PW 6), Nakhat Singh (PW 7), Mohan Maghnani (PW 8) and Chatter Singh (PW 9). The accused persons, in their statements, denied the prosecution case. The accused persons examined DW 1 Allah Bux, DW 2 Nakhat Mal, and DW 3 Sangram, in defence. The learned Additional Sessions Judge did not place reliance on the testimony of the main prosecution witnesses relating to identification of the accused persons and consequently, acquitted the accused persons. Hence, this appeal by the State.

(3.) THE most material question in this case, is regarding the identifcation of the accused persons. The learned Public Prosecutor, on behalf of the State, vehemently urged that the accused persons were known to Jugat Singh, Head Constable, and to Gaimer Singh. It was a moon -lit night, when the encounter took place. The police party, that is, these two police personnel, grasped the identity of the accused persons, when they had concealed themselves behind the sand dune and after such concealing the accused party proceeded in the direction, in which the police party was concealing itself. The names of the accused persons, along with their parentage, finds mention in the first information report and the parentage of only the accused Dayam, is not stated. The very fact that the names of the accused persons appeared in the first information report, indicates that Jugat Singh and Gaimer Singh had grasped the identity of the accused persons. If the identity would not have been grasped, their names would not have found mention in the first information report. So, according to Mr. Niyazuddin Khan, the finding of the learned Additional Sessions Judge that the police party could not identify the accused persons, is wrong and this observation of the learned trial judge is unfiunded that in the facts and circumstances of the case, identification parade was a must.