SUBHAN KHAN Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment passed by the learned Sessions Judge, Jodhpur By the judgment dated April 10, 1978 the learned Sessions Judge convicted the appellant for the offences under sections 302/34. 307/34, 436/34 and 429/34 of the Indian Penal Code and sentenced him to imprisonment for life on the first count and five years R.I. each for the remaining three counts with an order that all the sentences shall run concurrent.

(2.) Briefly stated, the facts of the case giving rise to this appeal are as under: About seven or eight years prior to the present incident, which took place on Jan. 4, 1964, Mubarak Khan father of Umrao Khan, a suspect in the present case was murdered. Gafoor Khan (P.W. 1) was a suspect in the murder case of Mubarak Khan and had to face a trial. He was acquitted in the case. Umrao Khan hatched enmity with Gafoor Khan for that reason and he and his companions were in search of an opportunity to take revenge from Gafoor Khan Amria, brother of the appellant, another suspect in the present ease had been married in village Bucheti the residence of the appellant and Umraokhan For seven or eight years Umraokhan was absconding, but he with his companions at a number of items had gone to the village to wreck vengeance from Gafoor Khan and had committed dacoity at certain houses When Gafoor Khan knew about the activities of Umraokhan, he, out of fear started sleeping at the house of his father Farid Khan situate at a distance of about one mile from the village-Bucheti. There were two 'padwas' and one 'Pakki Sal' in the house of Farid Khan. 'Dhani' of Gafoor Khan was at a distance of 60-70 paradas' from the house of Farid Khan. On Jan. 4, 1964 Gafoor 10an and his father Farid Khan left the house together. Farid Khan was going to he well to find out why his younger son Umar Din had not returned home in the previous night. The well was at a distance of 400 to 500 'Panudas' from the Dhani', of the appellant. The appellant went to his 'Dhani', opened of the house and brought the utensil to milch the buffalow. When he was milching the buffalow, he heard the report of three gun shots. Those shots hit the slabs affixed outside the 'jhumpa' of the appellant. The appellant stood up to find out who was firing the shots. He saw Umria. Amria, Subhana and on unknown person standing a' his field at a distance of 20 to 25 'paundas' away. The unknown person is said to have lathi with him and the remaining three were armed with guns. The appellant went to his 'jhunapa' and took his muzzle loading gun and went to his father's 'Dhani'. The four miscreants came in front of him and fired the shots but none hit him By that time Farid Khan had also returned from the well. When he was at a distance of 60 'paundas' from the 'Dhani' of the appellant. two shots hi; him in the joint field of Shera P.W. 2 and Gafoor Khan Gafoor Khan along with his muzzle loading gun went inside the 'sal' of his father. Ilam Din, brother-in-law of Gafoor Khan, whose house was nearby, also came out of the house and was asked by Garoor Khan to go inside the 'sal'. Ilam Din and Shera went inside the 'sal'. The miscreants continued firing the guns towards the 'sal'. Some of the shots hit the wall of the 'sal'. The mi creants set fire to the two 'padwas' of Farid Khen. They also set fire to the 'bada' for keeping grass. The t camels belonging to Farid Khan also sustained gun shots injuries and died. The she-goats of Farid Khan also died because of setting of the fire by the miscreants. On hearing about the incident, the police from Ram Chowki at a distance of about one mile rushed there and fired the gun shots towards the miscreants. The miscreants took to heals. Thereafter Gafoor Khan (P.W. 1), Shera (P.W 2) and Ilam Din came out of the 'sal' and found Farid Kan lying dead in the field. The articles lying in the 'padwas' were also found burnt. Gafoor Khan went to his 'Dhani' and found missing one cloth bad, one dagger, one golden nose-pin and currency notes worth one thousand rupees. Gafoor Khan went to Police Station, Kherapa and lodged the report Ex P 1. On the basis of that information, S H.O. Poonam Chand (P.W. 6) registered the case under sections 302 and 436 I.P.C. and left for village-Bucheti for investigation.He found the dead body of Farid Khan lying there having gun shots injuries. The she-goats and the household articles were found burnt. Two camels were also found dead. There were marks of gun shots on the house of Gafoor Khan also. 34 empty cartridges of 303 gun were found at the site which were taken in possession. The site inspection memo Ex. P. 2 and the site plan Ex. P. 17 were prepared, At a distance of five feet from the crops of Farid Khan, one empty cartridge of 303 gun was found which was taken in possession. The S.H.O. prepared the 'panchayatnama' of the dead body of Farid Khan and prepared the memos relating to the dead bodies of animals etc. Dr. P.R. Talukdar (P.W. 7), at the request of the police, went to the site and conducted the autopsy over the dead body of Farid Khan on Jan. 5, 1964 and prepared the report Ex. P. 18. The Doctor noted the following injuries on the dead body:-

(3.) On opening the dead body, the Doctor noted as under:-