Sharfududin And Ors vs State Of Rajasthan

This criminal appeal has been preferred against the judgment & order dated 09.09.1985, passed by learned Sessions Judge, Ajmer, in Sessions Case

No.31/1983, whereby learned trial court convicted the appellants - Sharfududin, Ikbal Hussain and Fahimuddin for offences u/s 302 read with section

34 of Indian Penal Code for committing death of Kutubudeen and sentenced each of them to imprisonment for life with fine of Rs.1000/-; in default of

payment thereof, to undergo six months' rigorous imprisonment.

During pendency of this appeal, appellants- Sharfududin and Fahimuddin have died and appeal preferred by them stands abated.

Brief facts of the case are that on 25.12.1982 at about 6.00 PM, Kutubuddin along with his friend Nawab Khan had gone to watch a movie in

Prabhat Cinema, Ajmer. At the time of interval, they were going to Chunni Lal's hotel where all the accused surrounded them. Accused Fayum and

Sharfu (since expired) caught hold of Kutubuddin and the other co- accused Mahesh stabbed him with a knife. Accused Iqbal who was standing at

the back side, also kicked Kutubuddin. Nawab Khan came in between them to rescue Kutubuddin.

Nawab Khan, at that time, took injured Kutubuddin to the Hospital at Ajmer by rickshaw and got him admitted for treatment. Dr. V.D. Kaviya

inspected injuries at 9.00 PM and found one stab wound caused by sharp edged weapon on Kutubuddin's body. After x-ray report, doctor operated

him. Nawab Khan remained in the Hospital for the entire night and on second day submitted a report at Police Station Sadar Kotwali Ajmer at about

8.15 AM.

All the accused appellants were charged for the offence punishable u/s 302, 302/34 IPC and Section 4 / 25 and 27 of the Arms Act. Accused

appellants pleaded not guilty. Prosecution examined 12 witnesses and exhibited 26 documents. Statements of the appellants were recorded u/s 313

Code of Criminal Procedure, wherein the appellants stated that the evidence adduced by prosecution is false and further stated that they had been

falsely implicated due to enmity. The accused appellants examined 5 witnesses in their defence and exhibited 6 documents.

After hearing the arguments of the rival parties, learned Sessions Judge convicted and sentenced the appellants vide impugned judgment dated

09.09.1985 as stated hereinabove.

Learned counsel for the appellant - Ikbal Hussain submitted that no reliance can be placed on the statement of Nawab Khan (PW-1) because on 5

th and 6th of June, 1984, he had supported the prosecution story. After that, on 10 th June, 1984 he had filed an affidavit in the trial court stating

therein that earlier statements were incorrect and he wanted to make his statement afresh. Therefore, his statement was recorded on 4.2.1985 and he

had not supported the prosecution case, at all, and was not declared hostile.

Learned counsel for the appellant further submitted that Liyakat Ali (PW-3) and Chunni Lal (PW-6) had not supported the prosecution story. They

deposed that neither had they seen anyone nor any incident. Learned counsel for the appellant submitted that the presence of accused Ikbal Hussain

had not been shown in the site plan (Ex.P-14). It clearly shows that accused Ikbal Hussain was not present at the alleged spot. He submitted that no

reliance could be placed on the statement of deceased Kutubuddin that was taken by Babu Lal (PW-8), i.e., statement u/s 161 Ex.P-15. At that time,

Kutubuddin was not in a position to give statement because he was under the effect of sedation. Learned counsel further submitted that Babu Lal

(PW-8) had not taken permission of the concerned doctor whether the deceased Kutubuddin was fit to give statement.

Learned counsel for the appellant further submitted that as per statements of Nawab Khan (PW-1) and Kutubuddin (deceased), appellant Ikbal

Hussain had kicked deceased Kutubuddin while he was lying. But, as per medical report (Ex.P-17) only one stab wound was found on the body of the

deceased Kutubuddin. So, the ocular evidence of Nawab Khan (PW-1) is not corroborated by the medical evidence.

Learned counsel for the appellant further submitted that Nawab Khan (PW-1) had not informed the police immediately. He had lodged FIR on the

next day. As per his statement, police had come to the hospital at night. At that time, no FIR was lodged. It shows that the report was lodged after

manipulation. Therefore, the appeal be allowed and the conviction of the appellant be quashed and set aside.

Per contra, learned Public Prosecutor supported the prosecution and submitted that the accused appellant Ikbal Hussain had been rightly punished

for the alleged offences. He submitted that the learned trial court had not committed any error in punishing the accused appellant Ikbal Hussain.

We have given thoughtful consideration to the rival submissions and gone through impugned judgment & order and entire material available on

record.

Learned trial court in its judgment and order partly relied upon the statement of Nawab Khan (PW-1). Statement of Nawab Khan (PW-1) was

taken again by the learned trial court wherein he had not supported the prosecution story. Therefore, no reliance can be placed on the statement of

Nawab Khan (PW-1) and the statement of Nawab Khan does not inspire confidence. Babu Lal (PW-8) had taken the deceased Kutubuddin's

statement u/s 161 Cr.P.C. At that time, the deceased Kutubuddin was admitted in the hospital and he was operated. Babu Lal (PW-8) had not

consulted the doctor that the deceased Kutubuddin was fit to give statement or not. Therefore, no weightage can be given to the statement of

deceased Kutubuddin. Liyakat Ali (PW-3) and Chunni Lal (PW-6) had not supported the prosecution story. As per prosecution story, appellant Ikbal

Hussain had kicked the deceased Kutubuddin while he was lying, but as per injury report (Ex.P-17) there was only one stab wound on the body of the

deceased. Therefore, the ocular evidence does not corroborate the medical evidence. The Investigating Officer, Shri Shambhu Singh had not shown

the presence of Ikbal Hussain in the site plan (Ex.P-14). Therefore, the prosecution failed to prove that the appellant Ikbal Hussain was present at the

time of the alleged incident. Therefore, the prosecution miserably failed to prove the offence punishable u/s 302/34 of the Indian Penal Code against

accused Ikbal Hussain beyond reasonable doubt.

In the result, the appeal is allowed. Appellant Ikbal Hussain is acquitted for the offence punishable u/s 302/34 of the Indian Penal Code. The

impugned judgment & order dated 09.09.1985 are quashed and set aside. The accused appellant is on bail as his sentence had been suspended vide

order dated 25.9.1985. He need not surrender. His bail bonds shall stand discharged.

Keeping in view, however, the provisions of section 437-A of the Code of Criminal Procedure, accused appellant Ikbal Hussain is directed to

forthwith furnish a person bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Registrar (Judicial) of this Court, which shall

be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the

said appellant, on receipt of notice thereof, shall appear before the Supreme Court.