ABDUL WAHID Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Through this appeal, appellant Hazi Mukhtiyar Ali (since dead) and Abdul Wahid have called in question their conviction recorded by the learned Sessions Judge, Jodhpur vide judgment dated 17th July, 1993 in Sessions Case No. 207/91 whereby Hazi Mukhtiyar Ali was convicted under Sec. 302, IPC and Abdul Wahid under Sec. 302/34, IPC. Both of them were sentenced to undergo imprisonment for life. Hazi Mukhtiyar Ali (to be referred to as 'Hazi' hereinafter) has died during the pendency of the appeal. His appeal has abated.

(2.) The facts, in short, are that Devendra Singhvi and many others were tenants in the premises of Hazi known as 'Hazi Building'. There was dispute between the landlord and the tenants. On the fateful day i.e. on 23rd of August, 1991 some repair work was undertaken on the roof. He, followed by Devendra went on the roof of the shop where they saw both the accused quarrelling with the labourers. After some talks. Hazi accused told Anil Kumar and Devendra to come to his shop for talks. Anil Kumar and Devendra got down of the roof and sat in their shop. After some time accused Abdul Wahid went there and told that his father was calling them. On this, Devendra and Anil Kumar proceeded towards the shop of accused Hazi along with accused Abdul Wahid. Dalpatrai Bhansali, a relation of Anil Kumar, who was sitting there in the shop, and Mahesh Baheti, a neighbour also accompanied them. The prosecution case is that as they reached the shop of the accused, Abdul Wahid told his father Hazi that these persons incited the other tenants and told them not to pay rent; they be shot dead. On this, accused Hazi, who was already having a gun in his hand, fired a shot hitting Devendra on upper portion of his chest. Devendra fell down and died at the spot. The first information report of the occurrence (Ex. P/1) was lodged by Anil Kumar at 5.15 PM before Chain Singh, ASI, who had reached his shop on some message. Shri Chain Singh sent the FIR to the police station through Nathu Singh, FC, for registration of the case and he started investigation. before Chain Singh reached the site, Hari Singh SHO, PS Sardarpura, had already reached there on receiving information about the incident. He saw accused Hazi armed with gun. He, therefore, asked him to surrender. At his direction, Hazi Mukhtiyar Ali surrendered his fire arm. He, therefore, arrested both the accused. During investigation, the police held the inquest, interrogated the witnesses and seized the blood stained clothes of Vagtu Ram. The autopsy was held by Dr. N. S. Kothari (PW 12) who prepared the post-mortem report Ex. P/22. After the completion of the investigation, a challan was submitted.

(3.) A charge under Sec. 302, IPC was framed against Hazi. Accused Abdul Wahid was charged under Sec. 302/34. They pleaded not guilty. The prosecution examined 19 witnesses. Accused in their statements under Sec. 313, Cr.P.C. denied accusation. Accused Abdul Wahid states in his statement that Devendra, Anil, Lalit, Dalip and Nand Kishore had attacked him when he was in the shop and at that time his father was sitting in a Jeep to proceed for realisation of the outstandings. He further states that Anil tried to snatch the gun of his father and in that attempt the gun went off. Same was the statement of accused Hazi. The accused did not examine any witness in defence.