MOHAMMAD IBRAHIM AND ANR. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been preferred against the judgment dated 5.9.2002 passed by the learned Addl. District and Sessions Judge, No. 5 Kota in Sessions Case No. 159/2000 whereby he has convicted and sentenced the accused appellants for commission of offence under Sec. 302 of Indian Penal Code. Prosecution story in brief is that Mohammad Hussain submitted a written report on 27.1.1992 at about 9.30 AM at Bada Hospital, Kota to the Station House Officer, Police Station Vigyan Nagar, Kota who had come to the hospital for getting conducted post mortem of the deceased Mohammad Saleem. He has stated therein "that he and his elder brother came to open the shop situated in Motor Market styled as Kureshi Autometer Repair. The deceased Saleem sent the complainant to bring broom for cleaning the shop from the opposite shop. While his brother Saleem was just to open the Shop, Ikram son of Mohammad Ibrahim, Afzal son of Mohammad Ibrahim, Ibrahim son of Khwaja Buksh, Farooq son of Chhote Khan, Bhaya @ Sabbir and three -four persons armed with Knives, Gupti and Lathies came on the spot with a common intention and attacked the deceased Mohammad Ibrahim inflicted knife injury on the back of deceased Ikram inflicted knife injury on the right side near the shoulder and Afzal inflicted injury with Gupti on the right side of the rib, Farooq inflicted knife on the left side of the rib of the deceased. His brother fell down despite that they continued beating and ran away. He, due to fear, did not interfere and watched the occurrence from distance. This occurrence was witnessed by Mohammad Saddique, son of Usuf Ali, Mohammad Jahoor son of Mohammad Bashir and Kalu son of Mohammad Saddique and many other. As his brother became unconscious, he took him to Bada Hospital by an Auto -Rikshaw. He was examined by the Doctor in the hospital and declared brought as dead. The deceased has been beaten by the accused persons because of the old enmity with them and caused the injuries with common intention to murder the deceased. He has been declared dead and kept in the post mortem room." On the basis of this written report, First Information Report No. 39/92 came to be registered in Police Station Vigyan Nagar, Kota at 10.40 AM. In the FIR, the names of the accused have also been shown. The investigation was started and during Investigation, Investigating Officer recorded the statements of eye witnesses Mohammad Saddique, Mohammad Jahoor and Mohammad Hussain complainant. He prepared site plan which has been exhibited as Exhibit P -8. Blood stained soil along with a soil was collected from the spot of occurrence and was sent to Forensic Science Laboratory for chemical examination which has been exhibited as Exhibit. P -9. The FIR has been exhibited as Exhibit P -14. The weapons of offence i.e. three knives and one Gupti has been recovered at the instance of the accused on the basis of their disclosure statements. They have been exhibited as Exhibits -P -15, P -17, P -18 and P -19. The prosecution filed challan to prove the guilt relying upon the statements of eye witnesses and other connected evidence collected during investigation. The trial court framed the charge against the accused Farooq son of Chhote Khan, Ikram son of Mohammad Ibrahim, Mohammad Afzal son of Mohammad Ibrahim and Mohammad Ibrahim son Khwaja Bux for commission of offence under Sec. 147, 148 & 302/149 IPC and 4/25 of Arms Act, 1959 whereas accused Bhaya @ Mohammad Sabbir and Farooq were charge sheeted for commission of offence under Ss. 147, 148 & 302/149 IPC. They pleaded not guilty and were put to trial. Prosecution led the evidence before the trial court. PW -1 Mohammad Jahoor, an eye witness was declared hostile. The Investigating Officer could not be examined. On appreciation of the evidence led by the prosecution, the trial court came to the conclusion that prosecution has made out a case beyond shadow of doubt and recorded conviction and sentence against accused appellants to suffer life imprisonment. The trial court acquitted the accused Farooq son of Chhote Khan and Bhaya @ Sabbir son of Rafiuddin of the charge under Sec. 147, 148 & 302/149 IPC and 4/25 of Arms Act, 1959 whereas accused Afzal son of Mohammad Ibrahim has absconded and his trial is pending

(2.) Appeal has been preferred by the accused appellants on the ground that the trial court has not appreciated the evidence legally the accused though as per prosecution story inflicted grievous injuries with knives and Gupti but the recovery made from them do not support the prosecution version as the weapons of offence were not found tainted with blood. PW -1 Mohammad Jahoor, an eye witness has been declared hostile whereas another eye witness PW -6 Mohammad Saddique, whose name finds place in the FIR as an eye witness has not supported the prosecution story and had stated that he heard about the incident and is thus a hearsay witness. The accused Afzal has been named by the complainant in the FIR but has not been dealt with by the Investigating Officer. An eye witness Kalu mentioned in the written report of the complainant has not been cited in the challan. The prosecution story is suffering from probabilities and loopholes, therefore, the judgment of the trial court is not sustainable.

(3.) Heard learned counsel for the parties and perused the record.