MOHD IRSHAD ALIAS DILSHAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant (hereinafter described as `accused') was placed on trial before the learned Special Judge (Sati Nivaran) Rajasthan and Additional Sessions Judge, Jaipur City, Jaipur in Sessions Case No. 79/1997. Learned Judge vide judgment dated September 26, 2000 convicted and sentenced the accused for the offence under Section 302 IPC to suffer Imprisonment for life and fine of Rs. 10,000/ -. in default to further suffer Rigorous Imprisonment for One Year.

(2.) PUT briefly the prosecution case is that the informant Mohd. Shafiq @ Babu (PW. 6) submitted a written report at 7. 00 PM of February 28, 1996 at the Police Station Ramganj, Jaipur with the averments that around 5 PM on the said day when he was standing near Nagina Mandi, Irshad, Ashfaq and Guddu suddenly caught hold of Siraj (now deceased) and Dilshad inflicted blow on the left armpit of Siraj. The police station Ramganj Jaipur registered a case for the offences under sections 307, 341 and 34 IPC and investigation commenced. Injury sustained by Siraj got examined, which was described in the injury report (Ex. P-10) as under:- " Stab Incised wound of size 3 x 1cm x depth? Placed at Lt. side lower part of chest at Ant. Axillary line. The wound margins are regular and clean cut well defined with fresh bleeding. " Since Siraj succumbed to the said injury the case was converted under Section 302 IPC. Post Mortem on the dead body was performed vide Post Mortem Report (Ex. P-13), according to which deceased sustained following ante mortem injuries:- " (1) Stitched wound of size 28cm with 25 stitches over Rt. Para medial place of front of abdomen. (2) Stitched wound of size 24 cm with stitch over left side front of chest, 3cm below nipple from mid stemal line to left inter part of Axilla. (3) Stitched wound of size 3, 3/4cm over left side lower part of chest laterally in 8th (Eighth) Inter Costal Space. (4) Stitched wound of size 2cm with dranage tube in left 7th (Seventh) Inter Costal Space aid thoresic cavity deep. On dissection: The stitched wound over abdomen has 25 stitches with tensear sukurs aid underneath muscles are also found stitched peritoneal is found stitched and peritoneal cavity containing about 300cc haemorrhagic fluid. Further examination shows there is stitching in area 5cm obliquely left done of diaphagne with tissue staining is present. On dissection of chest: The stitched wound injury No. 2 is injurious part of chest to left Axilla in 6th Inter Costal space and further exploration shows there is Inter Costal muscles are found partial stitches at place in 6th Inter Costal space and stitched wound of size 2cm with dranage tube is lying in 7th Inter Costal space with one stitched aid b/o thorasic cavity deep (Probably done surgically ). On further exploration of injury No. 3 which is in 8th Inter Costal space externally. There is Incised wound of size 3cm x 1cm x though and though Inter Costal muscles and plura in 8th Inter Costal area margins are clear cut regular well defined. Further wound reached upto left lung lower lobe antuid laterally where the wound is stitched of size 5cm long with haematoma formation wound cut. There is about 300cc of the blood is present in left plura cavity. The lower side of 7th rib underneath wound is found cut in area of 1/2 x 1/4cm x though and though with tissue staining and haematoma formation around it are muscular haematoma present in Inter Costal area underneath. The cause of death was shock and haemorrhage brought about as the result of injuries to vital organs. The injury was sufficient to cause death in the ordinary course of nature. "

(3.) RELIANCE was also placed on Husna vs. State of Punjab (4), wherein their Lordships of Supreme Court indicated as under:- (Para 6) "as already noticed in the FIR the names of both the appellants were found missing. They were only named in the supplementary statements of PW. 1 recorded during the investigation and in our opinion that statement, which was recorded during the investigation was hit by Section 162 Cr. P. C. and the Trial Court could not have relied upon the same as a part of the FIR. All the three appellants are brothers. No over act has been ascribed to Rupa, appellant during the entire occurrence. It seems rather improbable that if PW. 1 had allegedly snatched away a pistol from Rupa, appellant before Husna fired a shot at Satish Kumar, he would not have fired the same to prevent Husna from firing the shot. Besides no empty recovered from the spot has been connected by the ballistic expert with the pistol allegedly recovered from Rupa, appellant. After carefully analysing the evidence on the record, we are of the opinion that the prosecution has not been able to satisfactorily establish the case against the appellant Rupa beyond a reasonable doubt. The possibility that he was named being the brother of Husna cannot be ruled out. His presence at the time of occurrence has not been satisfactorily proved. His conviction and sentence for the various offences as recorded by the Trial Court therefore cannot be sustained.