Ajat Shatru and Others vs The State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Yadunandan Sharma, his son Ajat Shatru and Rajendra Hada friend of Ajat Shatru were tried by the court of Additional Sessions Judge (Fast Track) No. 1, Bundi, for committing murder of Sabir by sharing common intention.

The case of the prosecution is that on 15.3.2005 at about 8:00 PM, Ajat Shatru on exhortation given by his father Yadunandan Sharma and friend Rajendra Hada had committed murder of Sabir by firing a shot from a .12 bore gun, owned and possessed by his father, in the abdomen of Sabir.

The trial court vide impugned judgment dated 13.1.2011 held the appellant Ajat Shatru guilty of offences under Section 302 IPC and Section 3/25 of the Arms Act. Appellants Yadunandan Sharma and Rajendra Hada were convicted for the offence under Section 302/114 IPC. Having convicted the appellants for the above said offences, the trial court vide a separate order of even date sentenced them as under:-

"U/s 302 or 302/114 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo three months S.I.

U/s 3/25 Arms Act- to undergo three years R.I. and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month S.I."

During the pendency of the appeal, appellant Yadunandan Sharma died on 12.9.2014. An application (11028/2014) was filed by the legal representatives of the appellant Yadunandan Sharma praying that as per proviso to Section 394 Cr.P.C., they be permitted to continue with the appeal. On 3.3.2015, a co-ordinate Bench had ordered that the said application so filed shall be decided with the main appeal.

On the prayer made by widow, five daughters of Yadunandan Sharma and son Ajat Shatru, we allow the application and instead of disposing the appeal as having abated, we proceed to decide the appeal preferred by Yadunandan Sharma along with the two other connected appeals.

Since in all the three appeals common judgment has been assailed, we shall decide these appeals together.

Yadunandan Sharma was practicing lawyer at Bundi. As per the complainant, he was primarily dealing with the case pertaining to labour laws. Smt. Kariman (P.W. 5) was working in a Bidi factory. Her services were retrenched due to old age and she had approached the labour court by engaging Yadunandan Sharma as counsel. Dissatisfied with the services rendered by Yadunandan Sharma, Sabir in order to pursue the case of this mother had misbehaved with Yadunandan Sharma. The case of the prosecution in short is that being offended due to the conduct of deceased with father Yadunandan Sharma, Ajat Shatru appellant on the asking of the appellants Yadunandan Sharma and Rajendra Hada, had fired a shot at Sabir in front of his house resulting into his death.

We will give the facts in detail later, but at this juncture we want to reinforce long pending demand and need of the hour that the role of the police to investigate the crime and maintain law and order should be separated by the State at the earliest. This is a case where due to shot fired by son of a Advocate, the matter had flared up. Accused and deceased belong to two separate communities. After the information of death of Sabir was relayed communal tension had built up. The entire might of the police and the District administration immediately after the murder was deployed to avoid any kind of untoward incident and prevent communal clash resultantly investigation of the case which ought to have taken top priority became secondary. Resultantly, the defence counsel was provided in his arsnel many arguments to pick many holes in the investigation. Therefore, we have appreciated the evidence and the arguments raised before us taking into consideration prevailing ground realities on the night of the occurrence discernible from the evidence on the record. Having said so, now we shall revert to the bare facts of the case.

Mohammad Amin (P.W. 2) on 15.3.2005 at 9:00/10:00 PM, submitted a written report (Exhibit-P/3) at Government Hospital, Bundi before Sedu Ram (P.W. 13), who was then posted as Sub-Inspector at Kotwali, Bundi. He at relevant time was In-charge of the police station. At about 8:45 PM, he received a telephonic information from an anonymous person that one person has suffered fire arm injury in Lohar Gali at Bundi. On receipt of information, by constituting police party he reached hospital. The dead body of the person who suffered gun shot injury was already received at the hospital. At Hospital, Mohammad Amin (P.W. 2), presented a written report (Exhibit-P/3) and the said report through Constable Ashok Kumar (P.W. 2) was sent to the police station where formal FIR (Exhibit-P/13) bearing No. 132/05 was registered at police station Kotwali, Bundi for the offences under Section 302 and 341 IPC.

In written report (Exhibit-P/3) Mohammad Amin (P.W. 2) stated that his mother was working in a bidi factory and her case in labour court was with Yadunandan Sharma Advocate. In that case, the Advocate engaged was not following the case. Her mother had sent brother Sabir to talk with Advocate. Three/four days ago Advocate had turned out his brother from his house after insulting him. The Advocate further stated that neither he will return the fee nor will do anything. After this, his brother had gone to Kota and from there had returned. Yesterday, on 15.3.2005, in the evening at about 7:30 PM, Ajat Shatru S/o. Yadunandan Sharma and Rajendra Hada both resident of Lohar Gali came to the house of the complainant and his mother told that Sabir is not at home. The mother had inquired from Ajat Shatru and Rajendra Hada as to why they are searching for Sabir. They both disclosed that Yadunandan Sharma Advocate is calling him to his house for further talks. Thereafter, both the persons had left the house of the complainant. Sabir met both Rajendra Hada and Ajat Shatru in the bazar and both took him to the house of Yadunandan Sharma Advocate. All three started beating Sabir and on the noise raised by Sabir, Khadim Hussain and Waseem Qureshi who were standing nearby came running near to the house of Yadunandan Sharma Advocate. At that time, Yadunandan Sharma Advocate exhorted his son to finish Sabir by causing gun shot injury. Upon this, Ajat Shatru fired a shot in the abdomen of Sabir, due to which his brother Sabir fell at the spot in the pool of blood. At that time, Rajendra Hada was also saying that he be finished. Yadunandan Sharma, Ajat Shatru and Rajendra Hada ran away from the spot on the noise raised by Khadim Hussain, Waseem Qureshi and Zakir Hussain. The occurrence had taken place on 15.3.2005 at about 8:00 PM, and due to gun shot fired, Sabir brother of the complainant had died in the hospital at Kota.

It will be pertinent to mention here that the before the written report (Exhibit-P/3) was presented, a report (Exhibit-D/7) bearing Entry No. 963 was entered on 15.3.2005 at 8:45 PM in Rojnamcha (Daily Diary Register) maintained at Police Station Kotwali, Bundi. In the said report it was noted that an information was received through telephone that one person has received gun shot injury in Lohar Gali and the victim is lying in an unconscious condition in the street. When name of person, who made the said telephonic call was inquired, the said person hanged the phone. On receipt of information, a police party was constituted under the leadership of S.I., Sedu Ram (P.W. 13). The said police team included Constable Ashok Kumar (P.W. 12). On the night of 15.3.2005 itself, the Investigating Officer submitted an application (Exhibit-D/6) for constituting Medical Board to conduct the autopsy. On the said application, Superintendent of Police, Bundi and District Magistrate, Bundi on 15.3.2005 had appended the following note:-

"As there is large gathering belonging to the deceased has assembled outside the hospital, in order to handle the law and order situation, it is exigent to conduct PM immediately. The Board should conduct PM immediately.

S.P. Bundi

DM Bundi 11:40PM"

Resultantly, due to orders passed by the District Magistrate, on the intervening night of 15th and 16th of March, 2005, a Medical Board consisting of Dr. D.K. Gupta, Dr. O.P. Verma and Dr. Manoj Jain had conducted the autopsy on the dead body of Sabir.

Dr. O.P. Verma (P.W. 7) has proved on record the Post Mortem Report (Exhibit-P/7) and in the said report the following injuries have been noted:

"There is single rounded with ragged margin of skin perforation firearm wound present on right abdomen wall, 8cm below from costal margin at anterior axillary line border of wound is soaked with blackish powder. There is skin margin having blackening and charing from which protruges of intestine direction of firearm wounds is downward and posteriorly toward pelvic region. There is muscles and soft tissues peritoneum under the skin are ruptured with blackening. There is irregular tear at omentum of small gut, mesentary and rupture of abdominal Aorta analogic urinary bladder. The muscles beneath the abdomen are lacerated. The whole abdominal cavity and pelvic cavity full of blood with clots, there is a wound at large colon near lumen through and through.

X-ray of Abdomen, pelvis region, chest was done. There is evidence of multiple metallic pellets present at pelvic region and lower abdomen by tracking that pellets can collect three pieces of mettalic pellets. Because of rest metallic pellets present in deep tissue and bone part sic and vertibrae column in lower part there is also collected some 8 card wads from abdominal rounded 1"x1" shaped. Both metallic pellets and cord wads are taken in glass bottle sealed and sent to SHO P.S. Kotwali for needful examination from FSL. Probable time from death within 6 hours."

As per opinion of the Medical Board, the cause of death was due to hemorrhagic shock as a result of fire arm injury in the abdomen, which was ante mortem in nature and sufficient to cause death in the ordinary course of nature.

The prosecution has examined Zakir Hussain (P.W. 1), Khadim Hussain (P.W. 3) and Waseem Qureshi (P.W. 4) as eyewitnesses of the occurrence. Smt. Kariman (P.W. 5) mother of the deceased, has stepped into witness box to prove motive. The prosecution in all had examined sixteen witnesses and proved on record the documents from Exhibit-P/1 to Exhibit-P/23. Thereafter, the trial court recorded statements of the accused under Section 313 Cr.P.C. Whereas, in defence, the accused had examined two witnesses and proved on record twenty-seven documents being Exhibit-D/1 to Exhibit-D/27.

Mohammad Amin, the complainant who appeared in the witness box as P.W. 2 and had set the criminal proceedings into motion, deposed regarding background, motive and follow up action after submission of the written report. In the court, this witness stated that the deceased was his younger brother. On 15.3.2005, at about 8:00 PM, he was working at his tailor shop. This witness (P.W. 2) received telephonic call from the house that Sabir had received gun shot injury. This witness was further informed that gun shot was suffered by Sabir in front of the house of Yadunandan Sharma Advocate. This witness left his shop on the motorcycle and on the way he met his daughter in New Chudi Bazar and she also disclosed regarding receipt of gun shot injury by Sabir. This witness reached at the house of Yadunandan Sharma Advocate and found that some people were standing outside the house. The said persons disclosed that the dead body has been shifted to the hospital. This witness further stated that when he reached at the hospital pulse of the Sabir was very feeble. The doctor who examined Sabir declared him dead. After sometime, his mother, Zakir Hussain, Khadim Hussain and Waseem Qureshi also came. Zakir Hussain, Khadim Hussain and Waseem Qureshi had witnessed the occurrence. This witness further stated that he had submitted the written report (Exhibit-P/3) at the hospital and had attested inquest proceedings (Exhibit-P/4) and received the dead body vide Supurdginama (Exhibit-P/5).

Smt. Kariman (P.W. 5) deposed that Sabir is his son. She was working in bidi factory of Nizammudin Tonk Wale. About four years ago, Munim Natthu of the factory told him that she has become old and thus, she has been retired. In place of her, she can give the name of his son or daughter-in-law. She was further informed that in case she will not name son or daughter-in-law, the right to get near and dear employed in the bidi factory shall stand extinguished. This witness further stated that she was not paid any retrenchment compensation. She was advised to approach a counsel and she engaged Yadunandan Sharma Advocate. This witness stated that Yadunandan Sharma Advocate assured her that he will ensure payment of her all retrenchment compensation and pension and other reliefs. This witness identified the accused Yadunandan Sharma as the one who was engaged as counsel. This witness further stated that she had paid Rs. 3,000/- to him. This witness stated that her thumb impressions were obtained on various blank papers. After 10-15 days, she was informed by Advocate that the date will be fixed in the labour court. The Advocate had given a date and on the said date, she reached the court. She used to visit her Advocate and he always used to put her off by giving a date. This witness further stated that fifteen or twenty days before the occurrence, she had visited her counsel and he had turned her out of the house and said that he will not pursue the case and she may do whatever she likes. Five to seven days before the occurrence, Sabir had gone to meet the Advocate and thereafter, Ajat Shatru, son of Yadunandan Sharma Advocate and his friend Rajendra Hada came. They had asked about Sabir and had further said that Sabir is being called by Yadunandan Sharma Advocate. This witness further stated that at 8:30 PM, three boys came running and informed that Sabir has received gun shot injury. The said persons disclosed their names as Waseem Qureshi, Khadim Hussain and Zakir Hussain.

Now, we shall advert to the eyewitness account.

The prosecution has cited and examined Zakir Hussain (P.W. 1), Khadim Hussain (P.W. 3) and Waseem Qureshi (P.W. 4) as eyewitnesses.

Zakir Hussain (P.W. 1) in the court stated that on 15.3.2005, at about 8:00/8:15 PM, near Nagar Sagar Kund he was standing with Sabir, when Rajendra Hada and Ajat Shatru accused came. They were known to witness earlier. Ajat Shatru called Sabir to his house on the pretext that his father has to talk with him. The name of father of Ajat Shatru is Yadunandan Sharma Advocate. Ajat Shatru and Rajendra Hada took Sabir along with them towards the house of accused. They were having conversation. This witness followed them. Ajat Shatru told Zakir Hussain (P.W. 1) to stay back as he will take Sabir for a talk to his father. This witness kept on following both the accused Ajat Shatru, Rajendra Hada and Sabir. They reached in front of the house of the Advocate Yadunandan Sharma, who was standing out of the house. Yadunandan Sharma Advocate asked the witness to go as he has to talk with Sabir. Thereafter, this witness stood at a distance of 10/15 steps. This witness stated that thereafter, Ajat Shatru, Rajendra Hada and Yadunandan Sharma Advocate had an altercation and exchanged abuses. Meanwhile, Khadim Hussain (P.W. 3) and Waseem Qureshi (P.W. 4) also arrived at the spot. They asked Zakir Hussain as to why Sabir is having arguments with the accused. Meanwhile, Ajat Shatru, Rajendra Hada and Yadunandan Sharma Advocate started beating Sabir. This witness raised noise of Bachao Bachao. Then Advocate Saheb asked Ajat Shatru to bring the gun and fire a shot at Sabir. Rajendra Hada also asked Ajat Shatru to fire a gun shot at Sabir. Ajat Shatru brought the gun and fired at Sabir. The shot had hit on the right side of the abdomen of Sabir due which he fell at the spot. After firing the shot all the three accused ran away from the spot. All the three witnesses became perplexed and went to the house of Mohammad Amin, brother of Sabir to inform him about the incident. Mohammad Amin was not at his house. They met mother of the deceased and informed her about the incident. Thereafter he alone reached at the spot. Other two witnesses Waseem Qureshi and Khadim Hussain remained in the colony. This witness stated that when he reached at the spot, police had arrived. The police took Sabir to hospital. This witness also followed them to hospital. This witness remained in the hospital, where doctor declared Sabir as dead. The police went to the place of occurrence on the next day. They had inspected the spot and lifted blood stained soil in his presence.

Khadim Hussain (P.W. 3) stated that he is resident of Ghasiyara Mohalla behind Sabji Mandi at Bundi. This witness knew Sabir and the three accused. At the time of incident, he and his neighbour Waseem Qureshi were roaming. From Kotwali Sadar Bazar they went towards Lohar Gali and saw that all the three accused were having altercation with Sabir. They were exchanging abuses. They asked Zakir Hussain (P.W. 1) as to why accused are beating Sabir. Till firing of the shot and information relayed to the mother, this witness has narrated the similar facts, which had emerged in the deposition of Zakir Hussain (P.W. 1).

This witness further stated that he reached hospital and narrated the incident to Mohammad Amin, who dictated written report (Exhibit-P/3). Sabir was in the hospital where he was declared dead.

Waseem Qureshi (P.W. 4) has also deposed on the similar lines.

Rashid Khan (P.W. 6) stated that in his presence the dead body of Sabir was handed over to his brother. This witness had attested inquest proceedings (Exhibit-P/5) and memo whereby dead body was handed over to the elder brother of the Sabir.

Mohammad Hanif (P.W. 8) stated that on 20.3.2005, police came with accused Ajat Shatru to the farm house of Yadunandan Sharma Advocate and from a Kachcha house got recovered one gun of .12 bore. They had also recovered three live cartridges, one fired cartridge and one broken cartridge from the barrel of the gun.

Talib Hussain (P.W. 9) was posted as Constable at Police Station Kotwali, Bundi. This witness carried seven sealed packets for deposit to FSL, Jaipur.

Radhey Shyam (P.W. 10) Head Constable, on 16.3.2005 was posted as Incharge of Malkhana. He deposed that Sedu Ram (P.W. 13) had deposited one sealed vial containing pellets. Govind Singh (P.W. 16) on 20.3.2005, had deposited with him three sealed packets brought from the hospital. This witness stated that these articles were handed over to Talib Hussain (P.W. 9) for deposit at FSL at Jaipur.

Thus, Talib Hussain (P.W. 9) and Radhey Shyam (P.W. 10) have been examined by the prosecution to prove link evidence.

Rajendra Prasad (P.W. 11) stated that he was posted as ASI in police station Kotwali at Bundi. On 15.3.2005, at 9:25 PM, Constable Ashok Kumar (P.W. 12) had brought written report (Exhibit-P/3). The said written report was sent by Sedu Ram (P.W. 13).

Ashok Kumar (P.W. 12) carried the written report (Exhibit-P/3) from General Hospital, Bundi to Police Station Kotwali, Bundi and had presented the same before Rajendra Prasad (P.W. 11).

Sedu Ram (P.W. 13) the Investigating Officer had proved various facets of investigation.

Govind Singh (P.W. 16) was posted as SHO, Police Station Kotwali, Bundi. This witness proved signatures of the witnesses on various documents. This witness further stated that during investigation Ajat Shatru, Yadunandan Sharma and Rajendra Hada were arrested vide memo Exhibit-P/15, Exhibit-P/16 and Exhibit-P/17, respectively.

We have broadly noted the entire prosecution case.

The statements of the accused appellants were recorded under Section 313 Cr.P.C. and all incriminating circumstances were put to them. They denied the same.

Ajat Shatru the accused in his statement recorded under Section 313 Cr.P.C. stated that on the day of occurrence, his Chhoti Dadi (grand-mother) had expired and to attend ceremony held on 9th Day (Nonva) he had gone to Kapren. On the asking of family, he had stayed there. The police had brought him from Kapren. On the day of occurrence he was not at Bundi.

Yadunandan Sharma, the accused in his statement recorded under Section 313 Cr.P.C. stated that the occurrence had neither taken place inside his house nor outside the house. On that day, the electricity was not there. It was complete dark. The residents of the locality presented a complaint to the Jaipur Vidhut Vitran Nigam Ltd. at Bundi. The accused stated that the said complaint was duly entered in the complaint register. In the night, police took him alongwith his wife and four daughters to the Kotwali, on the pretext of providing security. This accused further stated that from the third floor of the house, police had recovered licensed gun, which has not been used in the occurrence. This accused further stated that he had never kept his gun at his farm house. The police on the night of the occurrence had gone to the top floor of his house and had taken away the gun.

Rajendra Hada in his statement under Section 313 Cr.P.C., took a stand that he has been falsely implicated due to grudge. He has no role and he has committed no offence.

Prithvi Raj (D.W. 1) was examined by the accused as defence witness. This witness in the court stated that he knew Zakir Hussain. Zakir Hussain had approached him on 24.10.2008 and had stated that he want to file an affidavit in the court that his statement recorded earlier in the court was not truthful statement. He had given a false statement before the court. This witness stated that Zakir Hussain had got typed the said application and the affidavit and the same was attested by the Notary. When he presented the same before the court, Zakir Hussain was with him. This witness proved on record the application (Exhibit-D/23), which was signed by Zakir Hussain. This witness further stated that the affidavit (Exhibit-D/24) was annexed with the application (Exhibit-D/23) and the same was signed by Zakir Hussain. He had presented his Vakalatnama (Exhibit-D/25) along with the application (Exhibit-D/23).

In cross-examination by the learned Public Prosecutor, this witness denied that he worked as junior counsel with the accused-appellant, Yadunandan Sharma Advocate.

Swadheen Mehta (D.W. 2) stated in the court that he is retired civil engineer. Presently he is practicing as licensed Surveyor Loss-assessor and Valuer and Technical Examiner for Income Tax Department, Insurance Company, Bank and other financial institutions. This witness had prepared a site plan of the street where Yadunandan Sharma was residing. He had presented his survey report (Exhibit-D/26) and in Exhibit-D/27 he had shown point ''X'' as house of Yadunandan Sharma and furthermore, point ''Y'' is the entry door of the house. This witness further stated that there is a 2 feet strip on the drain before approaching the road and the strip is having height of 1 1/4 or 1 1/2 feet.

We shall have a quick glance over the documents proved on record by the defence.

Exhibit-D/1 to Exhibit-D/5 are the statements of the witnesses, namely Zakir Hussain, Mohammad Amin, Khadim Hussain, Waseem Qureshi, Kariman Bai, respectively, recorded under Section 161 Cr.P.C. by the police. Exhibit-D/6 is the order obtained from District Magistrate, Bundi and Superintendent of Police, Bundi to conduct post mortem in the night due to apprehension of breach of peace. We have already referred Exhibit-D/7, the entry No. 963 made in the Daily Diary Register regarding telephonic call made by an anonymous person giving information about the murder. Exhibit-D/8 is the certified copy of FIR No. 343/98 registered at Police Station Kotwali, Bundi by Zakir Hussain (P.W. 1) against Rajendra Hada, the accused appellant. Exhibit-D/9 is the certified copy of an injury report of Zakir Hussain dated 19.8.1998 and Exhibit-D/10 is the parchabayan of Zakir Hussain (P.W. 1) pertaining to incident dated 19.8.1998 wherein he named Rajendra Hada as accused. Exhibit-D/11 is the statement of Zakir Hussain (P.W. 1) in proceedings initiated in Bar Council of Rajasthan against Yadunandan Sharma at the behest of Smt. Kariman (P.W. 5). In those proceedings, Zakir Hussain was examined as witness. In cross-examination, he admitted that he is being prosecuted for outraging the modesty of sister of Rajendra Hada. Exhibit-D/12 is a supplementary statement of Mohammad Amin (P.W. 2) recorded under Section 161 Cr.P.C. by Additional Superintendent of Police. Exhibit-D/13 to Exhibit-D/15 are the photographs. Exhibit-D/16 and Exhibit-D/17 are newspaper cuttings of Rajasthan Patrika regarding the incident. Exhibit-D/18 is the obituary message. Exhibit-D/20 to Exhibit-D/22 are again newspaper cuttings of Rajasthan Patrika. Exhibit-D/23 is an application which has been proved on record by Prithvi Raj (D.W. 1). The said application has been filed on behalf of Zakir Hussain (P.W. 1) along with the affidavit, in which a prayer was made that affidavit be taken on record. The said prayer was declined by the trial court on the ground that the statement of Zakir Hussain (P.W. 1) has already been recorded. Exhibit-D/26 is the survey report and Exhibit-D/27 is the site plan of Luhar Gali, Bundi.

We have heard the learned counsel for the parties.

Mr. S.S. Hora, the learned counsel for the appellants has contended that Zakir Hussain (P.W. 1) and Waseem Qureshi (P.W. 4) are working in the tailor shop of Mohammad Amin (P.W. 2) and whereas Khadim Hussain (P.W. 3) is the friend of Shakeel, younger brother of Mohammad Amin (P.W. 2). Thus, it is contended that all the three witnesses being closely connected with Mohammad Amin (P.W. 2), were introduced as eyewitnesses of the occurrence. Counsel for the appellants has submitted that the presence of three eyewitnesses, namely Zakir Hussain (P.W. 1), Khadim Hussain (P.W. 3) and Waseem Qureshi (P.W. 4) at the spot is highly improbable. It is canvassed that it is difficult to believe that at the nick of time, all the three witnesses were present in the street, where accused are residing only to witness the occurrence. It has been further urged that the conduct of the witnesses is highly improbable, instead of taking Sabir to the hospital, they went to the house of Mohammad Amin (P.W. 2) to relay the information. They had not intervened and had done nothing to rescue Sabir from the accused. The learned counsel for the appellants has submitted that entry No. 963 (Exhibit-D/7) registered in Daily Diary Register in the Police Station Kotwali, Bundi conclusively rule out the presence of three witnesses, as anonymous person had informed the police regarding the murder. The learned counsel further contended that Mohammad Amin (P.W. 2) in the court has stated that when he reached at the spot, the dead body was moved to the hospital by the police, whereas, Sedu Ram (P.W. 13) has deposed in the court that the dead body was not carried to the hospital by the police but the police party directly reached at the hospital.

The learned counsel further contended that the incident in the present case had taken place on 15.3.2005 at 8:00 PM. The written report (Exhibit-P/3) was submitted by Mohammad Amin (P.W. 2) on 15.3.2005 at 9:10 PM and in the said report it is written that ''Yesterday on 15.3.2005 his brother Sabir had gone to Kota. Putting much emphasis on the word in the written report, the counsel has submitted that in fact, the written report was prepared on 16.3.2005 and the same was ante dated to show that the FIR (Exhibit-P/13) was promptly lodged.

Mr. Hora, the learned counsel further submitted that since District Administration was apprehending breach of peace, as the same is clear from noting given on Exhibit-D/6 by District Magistrate and Superintendent of Police and from perusal of newspaper cuttings, the accused have been made scapegoat. The learned counsel further submitted that since it is not conclusively proved as to who removed the dead body from the spot, the prosecution has failed to prove that the occurrence had taken place in front of the house of the accused.

Mr. G.S. Shekhawat has referred to the previous litigation pertaining the year 1998, between Zakir Hussain (P.W. 1) and Rajendra Hada, to urge that he had nothing to do with the family of Yadunandan Sharma or Ajat Shatru and he has been falsely implicated to settle the old score. It is further contended by Mr. Shekhawat that as a result of consultations and deliberations, exhortation was attributed to Yadunandan Sharma and Rajendra Hada. Learned counsel further submitted that only one shot was fired and it is a handy work of one accused and allegations of exhortation has been introduced only to inflate the number of accused.

To controvert the arguments made by the learned counsel for the appellants, Mr. N.S. Dhakad, the learned Public Prosecutor has submitted that the occurrence had taken place on 15.3.2005 at 8:00 PM. At 9:10 PM on the same day, the written report (Exhibit-P/3) was presented and the case was registered at 9:25 PM. Furthermore, the said report reached the Illaqa Magistrate on 16.3.2005 at 11:50 AM. In the FIR itself, three eyewitnesses have been named. Thus, the FIR contains the spontaneous version.

We have given out thoughtful consideration to the rival submissions.

It is true that immediately when the shot was fired, and Sabir fell, in the front of the house of the accused, the information regarding firing of shot upon Sabir travelled in the city of Bundi like a fire in the jungle. The persons belonging to the community of Sabir had gathered and there was a imminent threat to public peace. This can be inferred from the police note given by District Magistrate, Bundi and Superintendent of Police, Bundi on application (Exhibit-D/6) which led to performance of post mortem late in the night. As we have earlier held that Bundi is a small town and the police force available in Bundi city is not fully equipped to deal with the law and order situation. Therefore, the time and energy of the police was to avert communal tension which had built up due to murder of Sabir, therefore, investigation in the present case was not swift and prompt enough to plug the loop holes, which have been pointed by the learned counsel for the defence. But from the preparation of the site plan and the fact that the special report reached Illaqa Magistrate on the next date and the FIR was entered in the Daily Diary Register at 8:45 PM within less than an hour i.e. at 9:25 PM, the FIR was registered, is itself sufficient to infer the presence of three witnesses at the spot. The first reaction of the witnesses may vary.

In the present case, in the street of the accused, in front of their house, shot was fired. The witnesses in given situation may feel terrorized or due to fear may run from the spot. The witnesses did the same. They went to the house of Mohammad Amin (P.W. 2), relayed the information to the members of their community. Even though, much ado has been made over the word to us it may be a bona fide error and this in itself cannot demolish the entire edifice of the prosecution case.

There is no denial of the fact that Yadunandan Sharma was a counsel of Kariman (P.W. 5). It has also come in the evidence of witnesses that earlier to the incident Yadunandan Sharma had turned the deceased, Sabir out of the house. Kariman (P.W. 5) had testified that Ajat Shatru and Rajendra Hada had come to her house to call Sabir, as Yadunandan Sharma intended to have further talks with him. Therefore, the prosecution has proved that the deceased was called and he had gone to meet Yadunandan Sharma and the occurrence had taken place in front of the house of Yadunandan Sharma.

In the present case, the gun of Yadunandan Sharma has been used. The shot fired from that gun had hit Sabir. The evidence of three eyewitnesses inspire confidence. The counsel for the appellants intended to rule out their presence on the probabilities. If the probabilities are examined, other way, they prove presence of the witnesses. The witnesses were at the hospital, they had narrated the incident to Mohammad Amin (P.W. 2) leading to lodging of the FIR. Therefore, we will place implicit reliance upon the witnesses, so far firing of shot by Ajat Shatru is concerned.

It has come in the evidence of Zakir Hussain (P.W. 1) that the accused had an altercation before the incident. Therefore, the deceased Sabir was called to sort out the issue. It has also come in evidence that between the accused and the deceased Tu-tu Mein-Mein and Gali Galoch had occurred. Therefore, it cannot be ruled out that appellant at his own volition had picked up a gun and had fired the shot. To us, allegation that Yadunandan Sharma had given an exhortation to his son to pick up the gun and fire the shot, is not a human reaction of a counsel who is a senior citizen and well trained in law. Ajat Shatru is a young lad. He having lost the temper, has acted at his own. Furthermore, it has come in evidence that that seven years before in the year 1998 Zakir Hussain and Rajendra Hada were involved in litigation. There is nothing on record from which it can be inferred that Rajendra Hada had a close association or relationship with family of Yadunandan Sharma or Ajat Shatru. Thus, it cannot be ruled out that Zakir Hussain (P.W. 1) to grind his own axe availed an opportunity in the hospital and has introduced the name of Rajendra Hada by inflating the number of accused. Even otherwise, it has come in evidence of Zakir Hussain (P.W. 1) that after Yadunandan Sharma had given an exhortation, Rajendra Hada has also said that shot be fired. To us, the allegation of exhortation is a blemish in the prosecution case and call upon us to sift grain from the chaff.

Consequently, we shall extend benefit of doubt to the appellants, Yadunandan Sharma and Rajendra Hada and their conviction and sentence for the offence under Section 302/114 IPC is set aside. They are acquitted of all the charges. Accordingly, D.B. Criminal Appeal No. 95/2011 preferred by Rajendra Hada and D.B. Criminal Appeal No. 46/2011 instituted by Yadunandan Sharma are allowed.

However, for the reasons stated above, we find no merit in the appeal D.B. Criminal Appeal No. 269/2011 instituted by Ajat Shatru and the same is dismissed by affirming the conviction recorded and sentence awarded by the trial court.