IMRAN AND OTHERS Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) Application No. 391/2018 has been filed by accused-applicants Imran, Ashfak and Mushtu and Application No. 355/2018 has been filed by accused-applicants Rahees and Rafiq seeking suspension of sentence awarded to them by the trial court.

(2.) Learned counsel for the accused-applicants argued that the trial court has convicted co-accused Shakeel for offence under Section 302 IPC simplicitor whereas all other accused have been convicted for offence under Section 302 IPC with the aid of Section 149 IPC. Learned counsel referred to statements of Fakira (P.W.1); Muddin (P.W.2); Rahees (P.W.4); Mammu (P.W.5); Mustkeem (P.W.8) and Muheed (P.W.11), eye witnesses, who have supported the case of the prosecution and submitted that except Fakira (P.W.1); Muddin (P.W.2); Rahees (P.W.4), whose statements under Section 161 Cr.P.C. were recorded on the very next day of the incident i.e. on 11.11.2010, statements of Mammu (P.W.5) was recorded belatedly on 18.11.2010; Mustkeem (P.W.8) on 22.11.2010; Muheed (P.W.11) on 23.11.2010. These three witnesses, whose statements were subsequently recorded, have by way of improvement alleged that after the first blow of 'dhariya' was caused on the head of the deceased by Shakeel, Rahees and Rafiq also inflicted injuries to the deceased on his head by lathies. When Fakira (P.W.1); Muddin (P.W.2); Rahees (P.W.4) were confronted with their previous statements under Section 161 Cr.P.C. in the Court, they could not dispute this fact that therein they did not state so. Learned counsel submitted that accused-applicants were on bail pending trial, therefore, mere pendency of criminal cases prior to the incident in the present case should not be a reason for not extending them benefit of suspension of sentence pending appeal, hearing of which is likely to take a long. It is argued that three injuries were shown on the person of the deceased when his MLR (Exhibit P-7) were prepared by Dr. Dashrath Singh (P.W.3). As per post mortem report (Exhibit P-23), injury no. 3 has been opined to be grievous and sufficient to cause death in ordinary course of nature and other injuries were opined to be simple in nature.

(3.) Learned Public Prosecutor and learned counsel for the complainant opposed the applications and submitted that allegation of causing first injury with 'dhariya' on the head of the deceased is made against Shakeel, but all the aforementioned eye witnesses are consistent in saying that Rahees thereafter caused second head injury by lathi followed by Rafiq, who caused third head injury again by lathi. Learned Public Prosecutor submitted that there is no injury by 'dhariya' on the person of the deceased whereas prosecution witnesses are consistent in alleging that it was Shakeel, who caused first injury but at the same time all the eye witnesses are also consistent in saying that second and third injuries were caused on the person of the deceased by Rahees and Rafiq and there are three injuries on head by blunt weapon. Mushtu opened fire too. It is alleged that rest of the accused intimidated the members of complainant party. Learned Public submitted that accused-applicants Ashfak and Mushtu have number of previous criminal cases of similar nature registered against them.