ABDUL KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellants "A1" Abdul Khan, "A2" Motan Khan, "A3" Ali Gawar, "A4" Hanif Khan, "A5" Vali Mohd., "A6" Nijawat Khan & "A7" Beerbal Khan were put to trial on the charge of forming unlawful assembly and in prosecution of the common object committing murder of Kumbha Ram and causing injuries to other prosecution witnesses. The Learned Sessions Judge, Jaisalmer by judgment dated 25th July, 2003 having found the prosecution case proved, held the appellants guilty of offence under Section 302/149 IPC and sentenced each of them to imprisonment for life and to pay a fine of Rs.2000/- and in default, to further undergo six months' rigorous imprisonment. The appellants have further been convicted and sentenced as follows: (a) U/s.325/149 IPC : Two years' R.I. and a fine (Except Motan Khan) of Ra.500/- and in default, to undergo 3 months' R.I. (b) U/s.325 IPC : Two years' R.I. and a fine of (Motan Khan) Rs.500/- and in default, to undergo 3 months' R.I. (c) U/s.148 IPC : Two years' R.I. and a fine of Rs.500/- and in default, to undergo 3 months' R.I. (d) U/s.323/149 IPC : Six months' R.I. (e) U/s.447 IPC : Three months' R.I.

(2.) The factual scenario as emerged during the trial is that the appellants and the prosecution witnesses are the allottees of land for temporary cultivation in the colony of Rajasthan Canal Project, District, Jaisalmer. . The appellants who belonged to the Muslim community are the old allottees in the area known as Hariar Minor within the jurisdiction of Nachna Colonisation Tehsil. P.W.1 Raimal by caste Kumhar and his two brothers namely P.W.2 Koja Ram and deceased Kumbha Ram were also allotted a piece of land in Chak No.3 of Hariar Minor. All the three brothers constructed separate huts on the land allotted to P.W.1 Raimal. With the help of deceased Kumbha Ram D.W.1 Chima Ram could also get a nearby Muraba allotted in his favour. It appears that the appellants were not happy with the induction of victim party in the area as allottees. It further appears that at the instance of Kumbha Ram a proceeding under Section 107 Cr.P.C. was initiated against the appellants and their associates by the police. The untowards incident took place on 7.7.2000 in which one Kumbha Ram died and some of the prosecution witnesses sustained injuries on one side and from among the appellants Nijawat Khan was seriously injured. Two F.I.R.s of the incident came to be lodged at Police Station, Nachna, out of which the first was lodged at 2:00 P.M. by the first appellant A1 Abdul Khan stating inter alia that having come to know A6 Nijawat Khan being seriously injured as a result of thrashing by Koja Ram (P.W.2), Raimal (P.W.1) etc. he rushed to the spot alongwith A2 Motan Khan. They were also thrashed by the prosecution witnesses. He brought the injured A6 Nijawat Khan in a Jeep to the Police Station. On this information, Police registered a case being No.23/2000 for offence under Section 307 I.P.C. Both the injured Nijawat Khan and Motan Khan were sent to the Primary Health Centre at Pokran for medical examination. The Incharge of the Police Station, Nachna along with other police officials reached at the place of incident. P.W.2 Koja Ram gave narration of the incident vide Ex.P2. As per the version of incident given by him, he along with deceased Kumbha Ram, P.W.1 Raimal and Babu Ram with their families were at their place of residence on Chak No.3 HMR. At about 10-11 A.M. his neighbor D.W.1 Chima Ram approached to him. A vehicle carrying slabs and other building material jammed in the sand. There were about 15-20 labourers along with the vehicle. Chima Ram made a request to him to arrange tea for the said 15-20 labourers. Chima Ram could manage to take the vehicle to his Muraba. At that time A1 Abdul Khan, A2 Motan Khan, A4 Hanif Khan, A5 Vali Mohd. A6 Nijawat Khan and other namely Mehrab, Mohammad Khan, Magan Khan, Suleman Khan and Peer Bux (not chargesheeted) and some more persons arrived on the land of Chima Ram and took up quarrel with him. They mounted assault on them by diverse weapons like Kulhari, lathies etc. In the assault Kumbha Ram died on the spot and number of persons sustained injuries. A1 Abdul Khan took the vehicle to his own Muraba and got the slaps and other building material unloaded. They were threatened not to report the matter to anybody else they may also be killed. Out of fear they did not move from the place of incident. However, they shifted the dead body of Kumbha Ram to the Muraba of P.W.3 Multan Singh. The police recorded the statement of P.W.2 Koja Ram on the Muraba of Multan Singh. On the basis of said Parch Bayan Ex.P2 police registered a case being No.24/2000 for offence under Sections 302, 147,148, 149. 447 and 323 I.P.C. and proceeded with investigation. After usual investigation police laid charge-sheets in both the F.I.R.s i.e. F.I.R. Case No.23/2000 and 24/2000.

(3.) The counter version about the incident was given by one of the appellants namely A6 Nijawat Khan in his statement under Section 313 of the Code of Criminal Procedure. He stated that the deceased Kumbha Ram offered him to collect fodder from his Dhani instead of going elsewhere. Thus, on the date of incident, he had gone to the Dhani of Kumbha Ram for collecting fodder. However, he was pushed inside the hut wherein Kumbha Ram, Chima Ram, Koja Ram, Raimal Ram and other ladies mounted attack on him with intention to kill him. Kumbha Ram and Koja Ram inflicted injuries by giving Kulhari blows. The wives of Raimal Ram and Chima Ram also made assault on him. On account of the said injuries, mandible bone was fractured. He also sustained serious injuries on various parts of the body. He fell down and became unconscious. On gaining consciousness, he found himself admitted in the hospital at Jodhpur. He remained in the hospital at Jodhpur for more than a month for the treatment. The trial court acquitted the accused persons in F.I.R. Case No.23/2000. However, having found the prosecution case proved in F.I.R. Case No.24/2000 convicted and sentenced the appellants in the manner stated above.