MOHAMMED ISMAIL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Rafiq Khan son of Saddiq Khan aged 18 to 20 years, resident of Mathiram-kacda, Maura-ka-chowk, Jodhpur had on the evening of November 17, 1971 gone to attend the period of English language in Lucky College, Jodhpur and he did not return alive to his home and was found dead within the compounds of Ravan-ka-chabutra by Rameshwar Singh Food Constable No. 1289 of Police Chowki Masuria at about 7 A.M. while Rameshwar Singh was going to case himself. He found the dead body lying in backward position and burnt on the upper half of the body with blood spreading around on the ground. He also noticed the prints of tyres of two cycles going upto and coming back from that place and also foot prints of persons. He immediately went to Police Station Shastrinagar Jodhpur and got recorded a report Ex P. 2 in Roznamcha-aam of the Police Station at 7.30 A.M. 011 the basis of the report made by Rameshwar Singh the Station House Officer of the said Police Station recorded the first information report Ex. P. 50 and registered a case under section 302, IPC. Narpat Singh, who was Officer-in-charge of the Police Station, immediately proceeded to the place where the dead body was lying and prepared an inquest report Ex. P. 13 in the presence of Bhauram and Jatharam Panchas. He prepared a site plan Ex. P. 51 and seized blood smeared and plain sand from the place of occurrence. He noticed prints of tyres of cycles and showed the movements of the cycle in the site plan prepared by him. The site inspection note Ex. P. 12 was also prepared. He also noticed foot prints at the place of occurrence. Narpat Singh prepared moulds of cycle tyre prints and foot prints after preparing a compound of Plaster of Paris and by fixing a frame. The pant and the bush shirt which the deceased was wearing were seized and sealed. The dead body was shifted to Mahatma Gandhi Hospital Jodhpur. At the hospital Sharif Khan, uncle of the deceased, handed over a report Ex. P. 5 along with a document Ex. P. 4 to Narpat Singh. During investigation one Deen Mohammed met Narpat Singh and told the latter that Anwar Ali and Saddiq Khan appellants in D.S. Criminal Appeal No. 329 of 1981 had made an extra judicial confession of the crime before him. After having been so told, the Investigating Officer went to the house where these two accused persons were living and arrested them on November 20, 1977 under arrest memo as Ex. P. 40 and Ex. P. 41 and also seized their Chhapals Articles 20, 21, 24 and 25. Both those accused persons were living in the house of Saddiq Khan, father of the deceased, as his tenants. Narpat Singh also arrested Mohammed Ismail appellant in D.B. Criminal Appeal No. 327 of 1981 on the same date at 9 P.M. under the arrest memo Ex. P. 42 and seized clothes and Chappals of Mohammed Ismail.

(2.) It was the prosecution case that Mohammed Saddiq got recovered cycle Art. 32 from the house in which he was living. Mohammad Ismail gave information to the Investigating Officer that he had taken a cycle Art. 4 from the shop of Abdul Majid P.W. 6. Narpat Singh seized that cycle Art. 4 and separated its wheels Art. 5 and also seized the cycle hire register Ex. P. 7 from the shop of Abdul Majid. The Investigating Officer also applied to the Judicial Magistrate No. 1, Jodhpur for taking specimen handwriting of Mohammed Ismail appellant for the purpose of comparison of his specimen handwriting with the handwriting on the document Ex. P.4 which had been handed over to the Investigating Officer by Sharif Khan PW 4 uncle of the deceased at Mahatma Gandhi Hospital Jodhpur and on this application the specimen handwriting of Mohammed Ismail Ex. P. 14/1 to Ex. P. 14/12 were taken by Judicial Magistrate No.1, Jodhpur. It is alleged that on November 26, 1977 Anwar Ali accused while in custody gave information to Narpat Singh that he had thrown a copy after tearing off its cover in Grounda Baodi and on this information and at the instance of Anwar Ali appellant, Copy Art. 2, which was floating in the Baodi, was recovered and seized by him. It was identified, that copy Art. 2 was of deceased Rafiq Khan and he had taken it to Lucky College on November 17, 1977 when he had gone there to attend the period of English language. Mohammed Saddiq appellant also gave information on the same day regarding a glass bottle and on the basis of that information glass bottle Art. 7 was recovered from inside the bushes near a bobool tree at Ravan-ka chabutra. This bottle was seized and sealed by the Investigating Officer. The Investigating Officer also took finger prints plain and rolled of all the three appellants. It is further alleged that Anwar Ali and Mohammed Ismail appellants had made application Ex. P. 60, Ex. P. 61 and Ex. P. 64 for making them approvers in the case and their applications were dismissed by the Judiciai Magistrate, Jodhpur by his order Ex. P.65. On November 28, 1977 Mohammed Ismail is stated to have given information to Gom Singh Sub-Inspector Police, Police Station Shashtrinagar PW 28 regarding a knife being hidden in a pit near Ravan-ka-chabutra and on the basis of this information Ex. P. 49 and at the instance of Mohammed Ismail appellant knife Art. 1 was recovered from the place pointed out by Mohammed Ismail and was seized under the seizure memo Ex.P.48. The autopsy on the dead body of Rafiq Khan was conducted by Dr. N.S. Kothari Medical Jurist PW 1 on November 18, 1977 at 2.10 P.M. and his post mortem report is Ex. P. 1. He found ten stab wounds and one incised wound on the dead body of Rafiq Khan. According to Dr. N.S. Kothari death of Rafiq Khan was a result of internal haemorrhage and injury to his both lungs and lever. The specimen handwriting of Mohammed Ismail Ex. P. 14/1 to Ex. P.14/12 and the writing on document Ex. P.4 were sent to the Forensic Science Laboratory Jaipur for comparison. Dr. D.C. Sethi PW 12 examined the questioned documents Ex. p. 4 and compared the handwriting from Standard writings Ex. P. 14/1 to Ex. P. 14/12 of Mohammed Ismail appellant and he submitted his report Ex. P. 16 to the effect that both the questions and the standard writings had been written by one and the same person. Chance prints on glass bottle seized were sent to Finger Print Bureau Rajasthan Jaipur for examination and the Bureau sent its report Ex: P. 26. The report mentioned that chance print photographs marked 0.1 was similar and identical with the specimen, thumb print marks of Mohammed Saddiq appellant. Chance print marked Q. 2(a) was also similar and identical with the specimen right index finger marks 5. 1 of Mohammed Saddiq appellant so also chance print marked Q. 2,b). Chance print marked C. 2(c) was unfit for comparison. Chance shop impression moulds lifted from the scene of the occurrence along with Chappals of Mohammed Ismail and Mohammed Saddiq appellants were also sent to Rajasthan Finger Print Bureau Jaipur for comparison and the report given by the said Bureau is Ex. P. 31. The opinion was given that the chance shoe impressions marked 1 to 3 were similar and identical with the sole of the original Chappal respectively and left and right feet of Mohammed Ismail. The chance shoe impression marked Nand L were reported to be similar with the original left and right Chappal's respectively of Mohammed Saddiq. No opinion could be given on the chance shoe impressions moulds marked M N o P in the absence of specimen prints or original shoes. However, when original sandle and Chappal pairs of Anwar Ali appellant and Refiq Khan deceased were sent, the opinion Ex. P. 36 was sent by the Finger Print Bureau stating that chance shoe impressions mould M and N were similar and identical with the left and right soles of the sandles of Anwar Ali appellant. The moulds marked O and P were found to be of the Chappals on Rafiq Khan deceased. The chance tyre impressions were G and H lifted from the seeds of the occurrence with two rim of cycle wheels with tyres fitted thereon were also sent for expert's opinion and the opinion Ex. P. 39 was given that the chance tyre impressions were similar to the tyres of cycle wheel rimes Arts. 5 and 6. The glass bottle seized was sent to Forensic Science Laboratory and it was reported by Ex. p. 71 that the bottle possessed smell similar to that of petroleum product. However, no definite opinion could be given as the bottle was empty. Pant, bush shirt, blood smeared soil and two Chappls were found to be stained with human blood. The blood group of a pant was 8 group. The original of blood group of bush shirt, blood smeared soil, two Chappals could not be determined. Blood stains on remaining five articles including the knife were stated to be disintegrated and their origin could not be determined.

(3.) The motive of the crime, according to the prosecution was that a document Ex. P. 4 found to have been written in the handwriting of Mohammed Ismail appellant was found by Sharif Khan P,W. 4, of deceased Rafiq Khan, at the door of his house on the morning of November 18, 1977. Sharif Khan read the contents of Ex. P.4. The contents were that if you want to see Rafiq alive, reach at the gate of Nehru Park to night at 9 P.M. with Rs. 10,000/-, other wire Rafiq would killed. The amount was to be brought in a black thali and they will understand. It was warned that no cleverness or shrewdness should be shown. Contents of Ex. P.4 on comparison with subsequent writing of Mohammed Ismail were found to be that of Mohammed Ismail. Saddiq Khan father of deceased Rafiq Khan, after telling his brother Sharif Khan PW 4 in the morning of November 18, 1977 that Rafiq Khan had not returned to house in the night had left the house in search of Rafiq Khan. When Saddiq had returned to his house in the noon, Sharif Khan shown the document Ex. P. 4 to his brother Saddiq Khan. Saddiq Khan was horrified to read the contents of Ex. P. 4. He told his brother Sharif Khan that while he had gone in search of Rafiq Khan he had heard that a dead body brought from Ravan-ka-chabutra was lying in Mahatma Gandhi Hospital Jodhpur. Both Saddiq Khan PW 26 and Sharif Khan PW 4 then went to Mahatma Gandhi Hospital and Sharif Khan submitted a report along with original document Ex. P. 4 at the hospital to Narpat Singh Investigating Officer. As already stated, Narpat Singh arrested the petitioner on November 20, 1977 when Deen Mohammed informed him that Anwar Ali and Saddiq Khan appellants had made an extra-judicial confession before him regarding their murdering Rafiq Khan. The Police after the above investigation filed a charge sheet against the three appellants and they were committed by the Chief Judicial Magistrate, Jodhpur for trial to the court of Sessions. The Sessions Judge charged all the three appellants with offence under section 302 and in the alternative under section 302 read with sections 34, 120-B 364 IPC. After trial the Sessions Judge, Jodhpur by his judgment dated April 16, 1981 found the three appellants guilty under section 302 IPC and in the alternative under section 302 read with section 34, IPC and sentenced each of them to imprisonment for life. All the three convicts have filed the present two criminal Appeal before this Court.