Mohammad Noor And Ors vs State Of Rajasthan

Appellants had faced trial qua offence punishable under Section 341, 323, 323/34, 302, 302/34 Indian Penal Code, 1860 (hereinafter referred to as 'IPC') in FIR No. 24 dated 22.01.2012 registered at Police Station Kotwali, District Jhunjhunu.

Prosecution case was set in motion on the basis of the statement of the complainant Mohammad Aarif. Prosecution story, in brief, was that on 22.01.2012 at about 6.00 p.m. Salim, brother of paternal aunt of the complainant, had been inflicted injuries by Mohammad Noor, Hasan and Syed Ashraf Farooqi and one unknown person with iron rods, sticks etc. He alongwith Wahid had intervened to rescue him and the assailants fled away from the spot. Wahid had also suffered injuries. Salim was taken to the hospital, but he succumbed to his injuries after sometime.

After completion of investigation and necessary formalities, challan was presented against the appellants.

So far as accused Javed is concerned, he was a juvenile and his case was sent for trial before the Juvenile Justice Board.

Appellants did not plead guilty to the charges framed against them and claimed trial.

Prosecution in order to prove its case, examined thirteen witnesses. Appellant Syed Ashraf Farooqi when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') prayed that he was innocent and had been falsely involved in this case. So far as appellants Mohammad Noor and Hasan are concerned, they pleaded that on 21.01.2012 Salim had thrown earth in the passage. They had objected to this and had told Salim not to do so. Due to this grievance Salim, Shahid, Wahid and Aarif armed with sticks and iron rods, came on 22.01.2012 at about 6.00 p.m., near their house and inflicted injuries to them. While they were inflicting injuries to them, Salim fell on the stones. They had not inflicted injuries to Salim. They were innocent and had been falsely involved in this case.

Trial court vide judgment/order dated 3.7.2015 ordered the conviction and sentence of the appellants under Section 341, 323, 302 IPC. Hence, the present appeal by the appellants.

Learned counsel for the appellants have submitted that occurrence in the present case was not in dispute as appellants Mohammad Noor and Hasan had admitted in their plea under Section 313 Cr.P.C. that the same had taken place on 22.01.2012 at about 6.00 p.m. near their house. However, the manner of occurrence had been wrongly projected by the prosecution. In-fact, the complainant party was the aggressor and had come to the spot armed with weapons and had inflicted injuries to appellants Mohammad Noor and Hasan. Deceased had fallen on the stones lying near the spot, as was evident from the site plan Exhibit D-1. In the alternative, learned counsel for the appellants have submitted that it could be said to be a case of free fight. Appellants had no intention to commit the murder of Salim.

Learned state counsel has opposed the appeal and has submitted that the prosecution had been successful in proving its case. From the statements of the eye-witnesses, it was established that the appellants had committed the murder of Salim in conspiracy with each other.

Present case relates to murder of Salim and injuries suffered by PW-4 Mohammad Wahid and PW-5 Mohammad Shahid. Thus, prosecution case rests on eye-witness account.

PW-1 Mohammad Aarif has deposed that his house was near the house of Salim. There was an open place in front of the house of the Salim. On 21.01.2012 Salim was trying to clear the earth from the passage. Mohammad Noor, Javed, Ashraf and Hasan Noor objected to this and quarreled with Salim. The said passage was government land but the accused proclaimed it as their own land. While leaving, accused threatened Salim with dire consequences. On the next day at about 6.00 p.m., Salim was taking bath. All the said accused called Salim outside and abused him and pushed him around and took him near the gate of the Dargah. He alongwith Wahid and Shahid went to rescue Salim. As a result, Shahid and Wahid suffered injuries on their hand and waist. He was pushed aside and he fell on the heap of earth. Then Mohammad Noor gave a baseball blow on the head of the Salim. Hasan gave stick blow on the head of Salim. Syed Ashraf Farooqi tried to give an iron rod blow on the head of the Salim but it hit him near his eye. As a result, Salim fell down and was removed to the hospital. However, at about 8.00 p.m., Salim died. He lodged the report Exhibit P-1 with the police.

PW-4 Mohammad Wahid (injured) and PW-5 Mohammad Shahid (injured) have corroborated the statement of the complainant.

PW-12 Mushtak Ali has also corroborated the statements of the complainant and the injured.

PW-7 Dr. Girdhari Lal Sharma has proved the postmortem examination report of the deceased as Exhibit P34. He deposed that the deceased had suffered an abrasion on his right arm and had suffered an abrasion on his left leg. Salim had suffered two injuries on his head and had suffered one lacerated wound near his left eye. Cause of the death of the deceased was ante-mortem head injury caused by blunt weapon. He also deposed that on 23.01.2012 he had medically examined Mohammad Wahid who had suffered one simple injury on his left forearm. On the same day, he had also examined Shahid and he had suffered two simple injuries on his back and finger. In his cross-examination, he deposed that on the same day, he had also medically examined Mohammad Noor and had found five injuries on his person. He proved the medico legal examination report of the said injured as Exhibit D-5. He further deposed that on the same day he had medically examined Hasan Noor and has found six injuries on his person. He proved his medico legal examination report as Exhibit D-6.

The other witnesses have deposed with regard to the investigation conducted in the present case.

Occurrence in the present case is not in dispute. It is also not in dispute that the occurrence had taken place in a passage. It is the case of the complainant party that they were removing the earth from the public passage, whereas, it is the plea of the accused party that the complainant party were throwing earth in the passage which fell in front of the Dargah of the accused.

The question that requires consideration in the present case is as to whether the accused had come to the spot in conspiracy with each other and had inflicted injuries to the deceased as well as the injured or that it was a case of sudden fight. Admittedly, there was a dispute between the parties with regard to passage-in-question. The occurrence had also taken place in the passage. Appellants Mohammad Noor and Hasan Noor had also suffered injuries in the incident. From the complainant side Salim, Mohammad Wahid and Mohammad Shahid had suffered injuries. Salim had, however, succumbed to his injuries. All the appellants are attributed one injury on the person of the deceased. It appears that as there was a dispute between the parties relating to the passage, we can safely infer that mutual conflict developed between the parties at the spot and it was a case of sudden and free fight. Both the sides had suffered injuries. Since, it can be said to be a case of sudden/free fight, all the accused would be responsible for their own act/injury caused by them.

Cause of death of Salim in the present case is the head injury. Head injuries on the person of Salim are attributed to Mohammad Noor and Hasan Noor. Both had given one blow to the deceased with their respective weapon. Thus, it could be said that appellants Mohammad Noor and Hasan Noor had no intention to commit the murder of Salim but they had the knowledge that the injury inflicted by them could result in the death of Salim. Hence, appellants Mohammad Noor and Hasan Noor are guilty of offence under Section 304 part II IPC and are liable to be acquitted qua charge framed against them under Section 302 IPC. Appellants Mohammad Noor and Hasan Noor are also guilty of the offence under Section 323 IPC visà-vis injuries inflicted by them to Mohammad Wahid and Mohammad Shahid respectively.

So far as Syed Ashraf Farooqi is concerned, injury attributed to him on the person of the deceased is a simple injury. Although, during trial, the prosecution witnesses PW-1, PW-4 and PW-5 projected that appellant Syed Ashraf Farooqi intended to inflict a head injury to Salim but the blow had landed near his eye but it appears to be an exaggerated version because the said witnesses in their statements under Section 161 Cr.P.C. had not stated to this effect as is evident from Exhibit D-2, Exhibit D-3 and Exhibit D-4 (statements of the said witnesses recorded under Section 161 Cr.P.C). The said witnesses were duly confronted that their statements recorded under Section 161 Cr.P.C. Hence, so far as appellant Syed Ashraf Farooqi is concerned, he is held guilty of offence punishable under Section 323 IPC and is liable to be acquitted qua charge framed against him under Section 302 IPC.

Accordingly, appellants are acquitted of the charges framed against them under Section 302, 302/34 IPC. Appellants Mohammad Noor and Hasan Noor are convicted qua offence punishable under Section 304 part II IPC and are sentenced to undergo rigorous imprisonment for ten years with fine of Rupees five thousand. In default of payment of fine, they shall further undergo rigorous imprisonment for three months. Appellants Mohammad Noor and Hasan Noor are convicted qua offence punishable under Section 323 IPC and are sentenced to undergo rigorous imprisonment for one year with fine of Rupees one thousand and in default of payment of fine, they shall further undergo rigorous imprisonment for one month. Both the sentences shall run concurrently.

Appellant Syed Ashraf Farooqi is convicted qua offence punishable under Section 323 IPC and is sentenced to undergo rigorous imprisonment for one year with fine of Rupees one thousand and in default of payment of fine, he shall further undergo rigorous imprisonment for one month.

Appeal stands disposed of accordingly.