HAKIM ALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) PETITIONERS Hakimali, Mohammed Ali and Asgar Ali have preferred this revision petition against the judgment of the Additional Sessions Judge, Ganganagar, dated January 1, 1975 whereby conviction of petitioner Hakimali under Section 307 and 27 Indian Arms Act was upheld and the conviction of Mohammed Ali and Asgar Ali was altered from Section 307/114 and 307/109 IPC

(2.) THE fact according to the prosecution were these. Maternal grandfather of Gulam Kadir Dula had agricultural land in Chak 20 PTP. Dula died about one year before the incident. In connection with this land a dispute arose between Mst. Amira mother of Gulam Kadir and wife of injured Wazir khan. On 30 -9 -1970 at about 6 p.m Gulamkadir was returning from his field to his house. When he has reached near the Mosque he saw the three appellants standing near the house of jalaluddin He heard appellants Mohammed Ali and Asgar Ali exhorting Hakimali to open fire. He then heard a gun fire report Gulamkadir reached his house and there his brother Lakhan came running and informed him that Wazirkhan has been shot dead. Gulamkadir went to the site and found his father Wazirkhan lying injured Immediately thereafter Gulamkadir left for police station Sadulshahar and lodged the FIR of the incident there at 8 p.m. The SHO Lal Chand police station Sadulshahar registered a case under Section 307 and rushed to the scene of incident. The injured was removed to primary health centre, Sadulshahar where he was medically examined by Dr. S.N. Goel at 9.45 p.m. Hakimali was arresed on 4 -10 -1970 and the licenced rifle was recovered from his possession. After completing the usual investigation the police filed a charge sheet against appellant Hakimali only Under Section 307 IPC and Section 27 Arm3 Act. Gulam Kadir filed a private complaint in the court of Munsif Magistrate, Hanumangarh On 30 -11 -1970 on this complaint cognizance was also taken against the three appellants who were committed after preliminary enquiry to the court of Sessions Judge, Ganganagar. It was transferred to learned Assistant Sessions Judge, Hanumangarh who convicted the appellants and an appeal was taken to the court of Additional Sessions Judge, Gangana -gar who maintained the conviction in the manner stated above.

(3.) I was argued on behalf of petitioners Mohammed Ali and Asgar Ali that the learned trial court and the appellate court committee gross error in convicting them. The prosecution case is sought to be built up on the basis of interested testimony and no independent evidence was forthcoming to support the prosecution case. The learned appellate court misread the evidence in as much as it observed 'I have made a careful scrutiny of the evidence of the three eye -witnesses Wazirkhan, Hamirnissa and Lakhan and find no hesitation in concurring with the learned trial court that the evidence of these three witnesses is sufficient and cogent to bring the guilt home to the accused.' A careful scrutiny of the testimony of the three witnesses would clearly point out that at least two of them were not the eye witnesses of the incident. I have considered the argument carefully which has substantial force. The learned Counsel for the complainant and the learned APP argued that the finding of the trial court and the appellate court was not perverse and, therefore, this Court in its revisional jurisdiction should not upset or alter the finding of fact. In my opinion this argument has no force because the trial court and the appellant court has misread the evidence in coming to a finding that lakhan was an eye witness. PW 4 Lakhan stated that he and Mohammed Sarwar intended to go to Matili for seeing Ramlila They came with their aunt Hamir Nissa on the shop of Mukan. Hakimali and Ors. came from towards the Mosque and abused them and also threatened. He went away to his house. Hamirnissa asked them to go to the house. They started and came in front of the house of Mohammed Saddique. His father Wazir khan then came there. He then saw that the three petitioners came from their house. Hakam Ali was armed with a gun and the two other with lathis Mohammed Ali and Asgar Ali exhorted Hakimali to fire and Hakimali fired which hit his father. Curiously enough the statement of the witness in the police Ex.D -10 is to the contrary and he did not afford any explanation for the omissions made therein In Ex. D -10 the witness did rot state about the fact of exhortation by the two petitioners and also the fact of filing by petitioner Hakimali. He rather stated in the polices statement - -'my father came and bade us to go to our house. As soon as we entered the street a gun fire was made from behind. We saw that my father had fallen down on the ground.' In view of the earlier police statement of the witness where he had not claimed to be an eye witness, in my opinion the learned lower courts made a gross error in holding him as an eye witness of the incident. This witness did not see petitioner Hakimali firing nor the witness is reliable on the point that he heard the other two petitioners exhorting Hakimali to fire.