- (1.) JAVED Masood and Syed Najib Hasan, appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) Tonk, who vide judgment dated July 25, 2003, convicted and sentenced them as under:- U/s.302 IPC: Both to undergo imprisonment for life and fine of Rs.100/- in default to further suffer three months simple imprisonment. U/s.201 IPC: Both to undergo three years rigorous imprisonment and fine of Rs.100/- in default to further suffer three months simple imprisonment. U/s.148 IPC: Both to undergo three years rigorous imprisonment and fine of Rs.100/- in default to further suffer three months simple imprisonment. The substantive sentences were ordered to run concurrently. Facts and Rival Submissions :
(2.) PUT briefly the prosecution case is that on May 25, 1999 at 1 PM Sub Inspector of Police Station Kotwali Tonk recorded Parcha Bayan (Ex.P- 12) of Chuttu @ Nizamuddin (P.W.5) wherein he stated that on the said day around 12.15 to 12.30 AM he in the company of Saleem and Noor, was getting his truck repaired at Rajasthan Tyrewala near Roadways Depot Tonk. At that time Mohammad Deen @ Mulla came at the shop of Ayub Bhai, suddenly 10-12 persons equipped with arms came over there and surrounded Mohammad Deen @ Mulla. Out of those persons Javed, Khalid, Nazeeb, Ashraf and Aziz were armed with Gupties, Mehmood, Iqbal, Nasir, Matin, Rashidullah were equipped with swords and knives. Gullo @ Arif, Saddique and some other unknown persons had Gandasa. Javed Masood inflicted blow with Gupti on the chest of Mohammad Deen @ Mulla. Khalid, Nazib, Ashraf and Aziz inflicted blows on neck, face and back. Ashraf also gave a blow on the temporal region and Mehmood, Iqbal, Nasir, Matin, Rashidulla gave blows on other parts of the body. Gullo & Saddique gave blows with sword on back and hands of Mullaji. Believing Mullaji to be dead the assailants fled away. Meanwhile police vehicle reached to the spot and removed Mullaji to hospital where he was declared as dead. On that parcha bayan case under Sections 302, 324, 326, 147, 148 and 149 IPC was registered and investigation commenced. Statements of witnesses were recorded, accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under Sections 148, 302, 323, 324, 326/149 and 201 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 33 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. It was stated that on July 25, 1998 Chhuttu, Noor, Salim, Raees assaulted them and FIR was registered as 219/1998 and charge sheet was filed against them. In that case Nazeed Hasan was a witness. Therefore Chhotu, real brother of deceased, falsely implicated the appellants in the instant case. Three witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard learned counsel for the appellants, learned Public Prosecutor and learned counsel for the complainant and with their assistance scanned the material on record. The death of Mohammaddin @ Mulla was undeniably homicidal in nature. As per post mortem report (Ex.P-43) following ante mortem injuries were found on the dead body:- "1. Incised wound 1" x 1/2" sub cut deep right parietal posterior part, elliptical 2. Incised wound 1" x 1/2" phanyngeal cavity deep elliptical vertical bleeding + Rt. carotid region ant. to ear lobule. 3. Incised wound 1/2" x 1/4" muscle deep on Rt. parotid region anterior to injury No.2 vertical elliptical. 4. Contusion 3" x 2" lt. forehead above lt. eye brow with black eye. 5. Incised wound 1" x 1/8" sub cut elliptical 11/2" lateral to eye on face right vertical. 6. Incised wound elliptical 11/2" x 1/2" muscle deep on upper 1/3rd forearm Lt. vertical. 7. Incised wound elliptical 11/2" x 1/2" muscle deep on lt. arm upper 1/3 vertical. 8. Penetrating incised wound 11/2" x 1/2" Rt. chest cavity deep 2" above & 1/2" medial to right nipple on anterior right chest wall elliptical, directing down & medial aspect. 9. Penetrating incised wound 11/2" x 1/2" chest cavity deep elliptical, oblique 11/4" medial to injury No.8 giving downward & laterally on ant. chest wall (Rt.) 10. Incised wound 11/2" x 3/4" muscle deep elliptical oblique direction medial & lateral aspect Rt. lower chest mammary line interiorly. 11. Penetrating Incised wound 11/2" x 1/2" abdominal cavity deep on left hypochondrium on abdominal wall elliptical obliquely placed 2" below sub costal Lt. marg & 2" lt. lateral to mid line. 12. Incised wound 1/2" x 1/8" sub cuticle 41/2" below left nipple transverse elliptical. 13. Abrasion 3 No. 21/2", 2", 1" linear oblique each parallel to each other 4" lat. & above to umblicus on lt. Ant. abdominal wall. 14. Incised wound 4" x 1/2" muscle oblique above down 2" lateral to (Rt. nipple, on Rt. chest anterior lat.) 15. Incised wound 11/2" x 1/4" muscle deep elliptical horizontally in mid axillary region (right). 16. Penetrating Incised wound 11/2" x 1/2" chest cavity deep Rt. mid axillary region 1/2" below injury No.15, elliptical vertical bleeding. 17. Incised wound 11/2" x 1/2" x scapular deep horizontal elliptical Rt. back chest inter scapular region. 18. Incised wound 11/4" x 1/4" muscle deep left to mid line of back on chest vertical elliptical 19. Incised wound 11/4" x 1/4" muscle deep transverse 1/2" right medial to mid line on Rt. back of chest 20. Incised wound 1/2" x 1/4" muscle deep on left lower to chest back in lower part elliptical horizontal. 21. Abrasion (three) 1/4" x 1/4" each three no. number Rt. knee joint. 22. Abrasion (two) 1/4" x 1/4" on left knee joint." In the opinion of the members of the Medical Board the cause of death was shock due to excessive hemorrhage on account of injury to right lung and Liver by penetrating chest injuries. Mr. S.R. Bajwa, learned Senior Counsel appearing for the appellants canvassed that the testimony of Mohammad Ayub (P.W.6) directly stands in conflict with the testimony of informant Chhuttan (P.W.5), Noor (P.W.13) and Raees (P.W.14). Mohd. Ayub categorically stated that where deceased was assaulted no one was present at the spot. In such a situation, the presence of informant Chhuttan (P.W.5), Noor Mohammad (P.W.13) and Raees (P.W.14) at the relevant time on the place of incident becomes highly suspect. In his deposition Mohd.Ayub (P.W.6) stated that while he was on his Tyre-shop Mohammadin @ Mulla came alone to his shop on Motor cycle around 12.30 PM to pay a sum of Rs.15,000/- a part of money outstanding against him. Mulla wanted to purchase more tyres on credit but he declined. Thereafter they had a discussion and he agreed to arrange for old tyres. He left Mulla sitting on the shop and went inside of Godown in search of old tyres. When he came back to his shop he did not find Mulla at his shop. Soon thereafter he heard noise and saw few persons passing in the nearby street. He also rushed to the street and found Mulla lying dead in the pool of blood. He informed the police about the incident. Police arrived within 5-10 minutes and took the dead body of Mulla in a Gypsi. After about 10-15 minutes Chhuttan and Noor Bhai came over there and asked about the incident. He then narrated the incident to them. In his cross examination Mohd. Ayub categorically stated that at the time of incident Chhuttan, Noor, Salim and Raees were not there.
(3.) CHHUTTAN (P.W.5) deposed that around 12.15 PM he along with Noor and Salim had gone for getting the Truck belonging his elder brother, repaired. His elder brother Mulla ji followed them on motor cycle. Mulla ji told Noor to accompany him to the shop of Ayub Bhai Tyre wala since Mulla ji would to pay some money to Ayub Bhai. Mullaji and Noor went to the shop of Ayub Bhai and he (CHHUTTAN) and Salim stayed near the truck. After 5-7 minutes he heard the noise of quarrel. Salim went near the place of quarrel and saw 10-12 persons, who were armed with weapons, surrounded Mullaji. Javed Masood inflicted blow with Gupti on the chest of Mullaji while Nazeeb gave blow with knife on his abdomen and chest. Khalid and other 10-12 persons were inflicting blows indiscriminately on his back. After Mullaji fell down the assailants fled away. In the meanwhile police jeep of white colour arrived and Mullaji was removed to Hospital. The incident was witnessed by Hussain, Raees, Ayub Bhai Tyre wala. CHHUTTAN's Parcha Bayan (Ex.P-12) was recorded by the police. Noor Mohammad (P.W.13) deposed that around 12.30 PM he had gone to Chungi Naka to get the truck of Mulla Teen band repaired. As soon as he reached there Mullaji came from behind. He took Noor Mohammad with him and went to Ayub Bhai Tyre wala and paid a sum of Rupees fifteen hundred to him. In the meanwhile Javed Masood and Nazib arrived. Altercations ensued between them. Noor Mohammad called CHHUTTAN and Salim who were standing near the truck. Javed then inflicted blow with Gupti on the chest and abdomen of Mullaji, thereafter Nazib gave blow with Chhurra on his chest. Mullaji fell down. Finding police Gupsy arrived the assailants fled away. The police with their help put Mullaji in the jeep and rushed to the Hospital. They also followed the Gupsy and went to the hospital. Raees (P.W.14) in his deposition stated that around 12.15 PM while he was coming from Shaboo's shop, he saw crowd near the shop of Ayub Tyre wala. Ten-twelve persons surrounded Mulla. Javed gave blow with Gupti on the chest of Mulla. Nazib also inflicted Chhurra blow on the chest of Mulla. Other also caused injuries. In the meanwhile police arrived and Mulla was removed to the hospital. According to learned Senior Counsel, the testimony of informant Chhuttan (P.W.5), Noor Mohammad (P.W.13) and Raees (P.W.14) does not get corroboration from any independent source and it calls for very stringent and close scrutiny, as they happen to be highly partisan witnesses. None of these witnesses can be placed on pedestal of a wholly reliable witness. It is further contended that the prosecution story as divulged by the informant in Parcha Bayan, has not found approval from Investigating Agency, which is reflected from the fact that investigation qua all other accused persons has been kept open under Section 173(8) CrPC. Learned Senior Counsel vociferously urged that since the incident occurred near the shop of Mohd. Ayub Tyre wala (P.W.6), his testimony ought to have been relied upon and the testimony of Chhuttan, Noor Mohammad and Raees should have been discarded out rightly. Learned Public Prosecutor however contended that Mohd. Ayub (P.W.6) was examined as eye witness but he did not support the prosecution story and he ought to have been declared hostile. If prosecutor at the trial did not choose to do so, the appellants could not get benefit because the public Prosecutor shirked his duties and responsibilities. Role of Public Prosecutor : ;