Partly allowed

Yakoob and Anr. v. State of Rajasthan through Pp

Rajasthan HC12 Nov 2018CRLA/177/2016

Case brief

AI extract

What is this about?

This appeal challenges convictions and sentences for riot, murder, attempt to murder, and possession of arms. The High Court acquitted some appellants due to lack of evidence linking them to the specific overt act or weapons, while affirming convictions for others who actively participated in firing.

What did the court decide?

Conviction and sentence set aside against some accused; upheld against others; pending investigation against two released on bail.

Yakoob and Anr. Vs State of Rajasthan through… — Murder and Culpable Homicide | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

D.B. CRIMINAL APPEAL NO.79/2016

¶3

Heere Khan S/o Chahat Khan,

¶4

Abbas S/o Heere Khan,

¶5

Saddiq S/o Hari Singh,

¶6

Sahib S/o Mulla @ Hakmuddin,

¶7

Sakrulla S/o Gaini,

¶8

Mahboob S/o Dumla,

¶9

Gaini S/o Sunpat,

¶10

Rahish S/o Hari Singh,

¶11

Asib S/o Gulla @ Hukmuddin,

¶12

Sajid S/o Asu @ Aas Mohammad,

¶13

Asu S/o Heere Khan,

¶14

Ghuttu S/o Heere Khan,

¶15

Yakoob S/o Gaini,

¶16

All by caste Mev, residents of Nagla Dubokar, Police Station, Jurhara, Distt. Bharatpur (Raj.)

¶17

(At present confined in Central Jail, Bharatpur)

¶18

-----Accused-Appellants

¶19

Versus

¶20

State of Rajasthan through Public Prosecutor.

¶21

-----Respondent

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Connected with

¶23

D.B. Criminal Appeal No.177/2016

¶24

Yakoob S/o Shri Saudan

¶25

Pappy S/o Shri Saudan

¶26

Both accused are by caste Mev, residents of Nagla Dubokar,

¶27

Police Station, Jurhara, Distt. Bharatpur (Rajasthan)

¶28

(2 of 19)

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[CRLA-79/2016]

¶30

(At present confined in Central Jail, Bharatpur.)

¶31

-----Accused Appellants.

¶32

Versus

¶33

State of Rajasthan through Public Prosecutor.

¶34

-----Respondent

¶35

D.B. Criminal Appeal No.229/2016

¶36

Mohammad Khan S/o Dhup Khan, by caste Mev, resident of Nangla Dubokar, P.S. Jurehara, Distt. Bharatpur.

¶37

(At present lodged in Central Jail, Bharatpur)

¶38

----Accused-Appellant

¶39

Versus

¶40

State of Rajasthan through its Public Prosecutor

¶41

-----Respondent

¶42

For Appellant(s)	: Mr. Rajesh Goswami with Mr. Yash Vardhan Nandwana Mr. DS Bagadia Mr. Sriram Yadav
For Respondent(s)	: Mrs. Sonia Shandilya – PP Mr. Harendra Singh Sinsinwar with Mr.Rajesh Choudhary – for complainant/s

¶43

HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Judgment

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12/11/2018

¶46

This bunch of criminal appeals has been filed against the order dated 9^th December, 2015 passed by the Court of Additional Sessions Judge, Kaman, District Bharatpur (Raj.) in Session Case No.34/13, convicting and sentencing the accused-appellants as under:

¶47

(3 of 19) [CRLA-79/2016]

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Accused-appellants-Heere Khan, Abbas, Saddiq, Sahib, Sakrullah, Mehboob, Gaini, Mohammad Khan, Rahish, Asib, Yakoob S/o Saudan, Sajid, Asu, Ghuttu, Pappi, Yakoob S/o Gaini:

¶49

For offence under Section 148 IPC – Two years rigorous imprisonment with fine of Rs.2000/-, in case of default to pay fine, to further undergo three months additional rigorous imprisonment.

¶50

Accused-appellants-Heere Khan, Abbas, Saddiq, Sahib, Sakrullah, Mehboob, Gaini, Mohammad Khan, Rahish, Asib, Yakoob S/o Saudan, Sajid, Asu, Ghuttu, Pappi, Yakoob S/o Gaini:

¶51

For offence under Section 302/149 IPC – Life imprisonment with fine of Rs.5000/-, in case of default to pay fine, to further undergo six months additional rigorous imprisonment.

¶52

Accused-appellants- Pappi, Sakrullah, & Ghuttu:

¶53

For offence under Section 307 IPC – Seven years rigorous imprisonment with fine of Rs.3000/-, in case of default to pay fine, to further undergo four months additional rigorous imprisonment.

¶54

Accused-appellants-Heere Khan, Abbas, Saddiq, Sahib, Mehboob, Gaini, Mohammad Khan, Rahish, Asib, Yakoob S/o Saudan, Sajid, Asu, Yakoob S/o Gaini:

¶55

For offence under Section 307/149 IPC – Seven years rigorous imprisonment with fine of Rs.3000/-, in case of default to pay fine, to further undergo four months additional rigorous imprisonment.

¶56

Accused-appellants-Pappi & Asu:

¶57

For offence under Section 324 IPC: - Two years rigorous imprisonment with fine of Rs.2000/-, in case of default to pay fine, to further undergo three months additional rigorous imprisonment.

¶58

(4 of 19) [CRLA-79/2016]

¶59

Accused-appellants-Heere Khan, Abbas, Saddiq, Sahib, Sakrullah, Mehboob, Gaini, Mohammad Khan, Rahish, Asib, Yakoob S/o Saudan, Sajid, Ghuttu & Yakoob S/o Gaini:

¶60

For offence under Section 324/149 IPC: - Two years rigorous imprisonment with fine of Rs.2000/-, in case of default to pay fine, to further undergo three months additional rigorous imprisonment.

¶61

Accused-appellant-Asib:

¶62

For offence under Section 323 IPC: - Three months rigorous imprisonment.

¶63

Accused-appellants-Heere Khan, Abbas, Saddiq, Sahib, Sakrullah, Mehboob, Gaini, Mohammad Khan, Rahish, Yakoob S/o Saudan, Sajid, Asu, Ghuttu, Pappi, Yakoob S/o Gaini:

¶64

For offence under Section 323/149 IPC: - Three months rigorous imprisonment.

¶65

Accused-appellants-Pappi, Sakrullah, Yakoob S/o Saudan & Mohammad Khan:

¶66

For offence under Section 3/25 of Arms Act: - Three years rigorous imprisonment with fine of Rs.2000/-, in case of default to pay fine, to further undergo three months additional rigorous imprisonment.

¶67

The complainant-Muhar Khan made a written report of the incident on 9^th April, 2009 at 7.30 PM. On the basis of it, an FIR was registered alleging that at around 5.00 PM, Suleman came to purchase goods from the shop of Sahoon. Accused-Sahib and Asib started quarrel with Suleman. Sahib and Asib then called their family members namely, Bhuttu, Mulla @ Hakmuddin, Rasmool,

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(5 of 19)

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[CRLA-79/2016]

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Yakoob, Gurman, Hasan, etc. They came with firearms, pharsa, lathi and surrounded Suleman. On a prayer for mercy by Suleman, Sahoon, Haroon, Nasroo, etc. tried to save Suleman. In the meanwhile, a message about the incidence reached to Lambardar Ka Vas from where Suleman belongs. Mangal, Hameeda, Nabbi, Harooni, Azad, Asru came to save Suleman. The accused Heere Khan thereupon asked accused to settle the score with complainant party. On the aforesaid, Mulla, Bhuttu, Yakoob, Gurman, Pappi, Hassan, Iqbal, Rahish, Gaini, Heere Khan, Lallu and Sufeda came with firearms, whereas, Sajid, Sakrullah, Abbas, Mohammad Khan came with “katta”. The other accused were having “lathi” and “pharsa”. They opened fire and caused injuries to the complainant party wherein deceased (Dafedar), who was standing on the roof, died.

¶71

The police registered an FIR No.77/2009 for offences under Sections 147, 148, 149, 323, 307 and 302 IPC. After investigation, the charge sheet was filed against accused-Heere Khan, Saddiq, Sakrullah, Sahib, Abbas for offence under Sections 147, 148, 149, 341, 323, 324, 325 and 307 IPC. The case was committed to the Court of Sessions. The Investigating Agency then submitted another charge sheet against accused-Asib, Sahib, Pappi, Ghuttu, Mulla @ Hakmudeen, Rasmool, Yakoob, Gurman @ Sahoon, Abbas, Heere Khan, Gaini, Yakoob S/o Gaini, Sakrullah, Rahish, Saddiq, Sajid, Mehboob, Asu, Mohammad, Tarif, Jamsheeda, Sumeya for the offences under Sections 147, 148, 323, 324, 336, 307, 302 and 3/25 of the Arms Act. The charge sheet against other seven accused could not be filed as they are absconding.

¶72

(6 of 19)

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[CRLA-79/2016]

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The trial court framed charges against all the accused for offences under Sections 148, 323 alternatively 323/149, 324 alternatively 324/149, 325 alternatively 325/149, 302 alternatively 302/149, 307 alternatively 307/149 IPC. The charge for offence under Section 3/25 of the Arms Act was found against Sakrullah, Pappi, Yakub S/o Saudan and Mohammad Khan. When the accused denied the charges, the trial commenced. The prosecution produced thirty five witnesses apart from one hundred twenty five documents to prove their case. The statements of the accused were recorded under Section 313 Cr.P.C. They produced two witnesses in defence apart from fifty one documents. The trial court has convicted and sentenced the appellants for different offences given in earlier para.

¶75

ARGUMENTS OF THE ACCUSED-APPELLANTS SIDE :

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Learned counsel for appellants submits that trial court has convicted all the accused for different offences with the aid of Section 149 IPC. It is in ignorance of the fact that in a case of free-fight, the conviction could not have been made with the aid of Section 149 IPC. He submits that a cross FIR was lodged at the instance of the accused party though on the next date of occurrence. The injuries to the accused party show that even the complainant party equally participated in the occurrence. A case of free-fight exists and, accordingly, the trial court should not have convicted and sentenced the accused for different offences with the aid of Section 149 IPC. Seven persons from accused side have sustained injuries and it was from the firearms.

¶77

(7 of 19) [CRLA-79/2016]

¶78

A reference of the place of occurrence has also been given to show that the complainant party was aggressor. They came with deadly weapons. If the accused have used the weapons, it was in self-defence. The aforesaid has also been ignored by the trial court while convicting and sentencing the accused for offences under Sections 148, 302/149, 307, 307/149, 324, 324/149, 323 323/149 IPC apart from Section 3/25 of the Arms Act. In view of the above, the order of the trial court needs interference not only regarding conviction but even sentence of the accused-appellants.

¶79

Learned counsel for appellants further states that the order of conviction has been passed even in ignorance of the statements of the witnesses produced by the prosecution. Out of sixteen accused tried by the trial court, no overt act of majority of the accused has been shown to even prove their participation in the occurrence. Mere presence cannot lead to conviction and sentence for different offences with the aid of Section 149 IPC.

¶80

The counsel has made a specific reference of conviction of accused-Abbas S/o Heere Khan, Saddiq S/o Hari Singh, Mehboob S/o Dumla, Gaini S/o Sunpat, Mohammad Khan S/o Dhoop Khan, Rahish S/o Hari Singh, Sajid S/o Asu, Yakoob S/o Gaini. None of the witnesses have made allegations against those accused for their participation in the occurrence though “lathi” has been recovered from them other than Gaini S/o Sunpat and Mohammad Khan from whom a “Katta” was recovered. The “lathi” was not found bloodstained and otherwise the injured witnesses have not named those accused for causing injuries even by a “lathi”. In view of the above, those accused could not have been convicted and sentenced for offences under Sections 148, 302/149, 307,

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(8 of 19)

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[CRLA-79/2016]

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307/149, 324, 324/149, 323 323/149 IPC apart from Section 3/25 of the Arms Act.

¶84

Learned counsel appearing for appellant–Mohammad Khan further states that a “katta” was recovered from him but it was from an open place and otherwise other than showing his presence, no allegation for participation in the occurrence has been made. The eye-witnesses as well as the injured witnesses have not named Mohammad Khan for opening fire from “katta” thus even his conviction and sentence for offences under Sections 148, 302/149, 307/149, 324/149, 323/149 IPC apart from Section 3/25 of the Arms Act is illegal.

¶85

The trial court convicted and sentenced those accused, who did not participate in the occurrence. In this regard, a reference of accused-Heere Khan S/o Chahat Khan has also been given. No allegation against him exists other than to ask other accused to remain prepared for taking revenge from the enemies. No recovery has been made from him and otherwise, none of the witnesses has named Heere Khan S/o Chahat Khan for participation in the occurrence by showing his overt act. He is at the age of 85 years. He could not have been convicted. A prayer is, accordingly, made to acquit those accused against whom no allegation for participation in the occurrence and overt act has been made.

¶86

Learned counsel for appellants further submits that even Sahib and Asib S/o Mulla @ Hakmudeen have not participated in the occurrence though allegation against Asib is to cause injury to Ayub but a case under Section 302 IPC with the aid of Section 149 IPC is not made out. No allegation against Sahib S/o Mulla @ Hakmudeen has been made to open fire or to cause injury to any

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(9 of 19)

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[CRLA-79/2016]

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one during the course of occurrence. A prayer is, accordingly, made to acquit Sahib and Asib S/o Mulla @ Hakmudeen also for the offences under Sections 148, 302/149, 307/149, 324/149, 323 and 323/149 IPC.

¶90

Learned counsel for appellants have further submitted that even Sakrullah S/o Gaini, Yakoob S/o Saudan, Asib S/o Mulla @ Hakmudeen, Gani S/o Sunpat, Heere Khan S/o Chahat Khan, Pappi S/o Saudan have not participated in the occurrence though recovery of the firearm has been shown from Mohammad Khan, Pappi, Yakoob S/o Saudan and Sakrullah S/o Gaini but for that, all the accused have been convicted for offences under Sections 148, 302/149, 307/149, 307, 307/149, 324, 324/149, 323, 323/149 IPC apart from Section 3/25 of the Arms Act.

¶91

Learned counsel appearing for appellant-Pappi has stated that recovery of the weapon has not been supported by PW35Fakruddin. The recovery memo of “katta” was exhibited as P112 and his singnature is marked “C” to “D” on it.

¶92

In the same manner, learned counsel appearing for appellant-Yakoob S/o Saudan submits that no specific allegation against him exists for participation in the occurrence thus his conviction has also been challenged in the present appeal.

¶93

Learned counsel for appellants reiterated their arguments for challenge to the conviction for offences under Sections 302, 307, 324, 323, 325 with the aid of Section 149 IPC. It is stated that there was a free-fight between two groups when Maulvi made an announcement on the loud speaker to save Suleman. The complainant party came with deadly weapons, thus the accused were left with no option but to act in self-defence. In the free-

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(10 of 19)

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[CRLA-79/2016]

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fight, both the parties received injuries. Accordingly, the order passed by the trial court needs interference.

¶97

ARGUMENTS OF THE SIDE OPPOSITE :

¶98

Learned Public Prosecutor and the counsel for complainant have opposed the arguments raised by learned counsel for appellants. It is submitted that the incidence firstly took place at the shop of Sahoon when Sahib and Asib started quarreling with Suleman. Sahoon, Haroon, Nasroo, etc. came to save Suleman. In the meanwhile, family members of Suleman received a message about the occurrence and, accordingly, they came to save Suleman. Heere Khan having seen the complainant party, asked other accused to settle the score with the complainant party and asked them to go on the roof. The accused went on the roof and opened fire. They even caused injuries by use of “pharsa” and “lathi”. The injury report as well as the post mortem report supports the prosecution case. Apart from the deceased, the injured have also received injuries out of the firearm, blunt object and even by sharp-edged weapon.

¶99

In view of the above, all the accused participated in the occurrence thus the trial court has rightly convicted them for different offences with the aid of Section 149 IPC. The accused came with the common object to cause occurrence thus the plea taken by learned counsel for appellants that mere presence without overt act would not attract Section 149 IPC, may not be accepted. All the accused came with a common object to cause occurrence and, therein, Dafedar died, whereas, others received injuries.

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(11 of 19)

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[CRLA-79/2016]

¶102

It is also stated that it is not a case of free-fight. The complainant party came when they heard about quarrel with Suleman. It was to save him. The moment the complainant party reached the place of occurrence, accused party opened fire and even caused injuries by “lathi” and sharp-edged weapons. It was thus not a case of free-fight. During the course of occurrence, if any one from accused side sustained injuries, it was out of use of firearms by the accused themselves. The injuries sustained by the injured from the accused side do not prove it to be out of free fight. If duration of injury to the accused is seen, it is prior to the occurrence. The injuries were otherwise not grievous in nature so as to show it to be a case of free-fight and accordingly, not to apply Section 149 IPC. A prayer is made to maintain the order of the trial court.

¶103

FINDING OF THE COURT :

¶104

We have considered the rival submissions made by learned counsel for the parties and perused the record.

¶105

The police registered an FIR No.77/09 on a report made by Muhar Khan. He had given description of the occurrence. Based on the aforesaid, the investigation was caused by the police. The charge sheet was initially filed against few accused followed by a supplementary charge sheet against others. The charge sheet could not be filed against other seven accused as they are absconding and, accordingly, the investigation has been kept pending against them under Section 173(8) Cr.P.C. After framing of the charges, both the parties led evidence. The trial court considered the evidence led by both the parties and came to the

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(12 of 19)

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[CRLA-79/2016]

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conclusion that accused-appellants herein have caused occurrence and, accordingly, convicted and sentenced them for the offences referred to above.

¶109

The prosecution produced eye-witnesses as well as injured witnesses to prove their case. PW1-Ali Mohammad has stated about the incidence. His statement has been supported by PW2Mohar Khan. PW1-Ali Mohammad, PW2-Mohar Khan and PW3Khursid are not only injured witnesses but eye witnesses also to the occurrence. The eye-witnesses have stated that on 9^th April, 2009 at around 5.00 PM, Suleman came to purchase wheat. When he asked about rate of wheat, Sahib and Asib started abusing him. Suleman asked them to stop but, immediately thereupon, Asib and Sahib started beating Suleman. Both of them called their family members and, thereupon, Mulla, Ghuttu, Pappi, Gurgan, Sahul, Yakub, Sakrulla, Gaini, Iqbal, Sajid and Asu came with “lathi”, “pharsa” and firearm.

¶110

The Maulvi immediately made an announcement on loudspeaker to save Suleman. The aforesaid was heard by family members of Suleman. They immediately came at the place of occurrence and after that, Asu caused head injury to Hamida by a “pharsa”. Accused-Heere Khan asked the accused to settle the score with the complainants and, accordingly, Mulla, Ghuttu, Pappi, Sakrullah, Yakub, Gurgan climbed on the roof and started firing. The witnesses have made specific allegation against Ghuttu for opening fire on Hameeda. Yakub opened fire on Asru and Azad. Pappi opened fire on Nabbi, Haruni, Suleman and Dafedar. Gurgan opened fire on Rubila. Sakrullah opened fire on Mangal. During the course of occurrence, the deceased came to stop the fight between the parties. A fire was opened on him by Mulla followed

¶111

(13 of 19)

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[CRLA-79/2016]

¶113

by Gattu and lastly by Pappi. Dafedar fell down. The police immediately came there. All the three witnesses have given description of the incidence. They were cross-examined by accused but their statements could not be demolished.

¶114

Their testimony has been believed by the trial court as corroborative evidence was given by PW4, PW5, PW6, PW7, PW8, PW10, PW11, PW13, PW14 and PW16. They are injured witnesses and made specific allegations against the accused-appellants for their participation in the incidence by opening fire on the deceased and on the injured witnesses also.

¶115

PW4-Harun s/o Mushi has stated that on the direction of Heere Khan, the accused started firing. Ghuttu caused a firearm injury to Hamida. Pappi opened fire on Nabbi, Suleman and Haruni. Gurgan fired on Rubila. Sakarulla caused injury to Mangal by a firearm. Yakub caused injury to Asru. Akub fired on Harun. Accused-Mulla followed by Ghuttu and then Pappi fired on Dafedar. The injury report of Harun is Exhibit-P5.

¶116

PW5-Ayub s/o Surajmal has stated that when he went to the place of occurrence, he saw the accused beating Suleman. When he intervened, Aasib attacked on him by a lathi. His injury report is Ex.P7.

¶117

PW6-Nabbi s/o Dalla has stated that when he went to the place of occurrence, he saw accused beating Suleman. He tried to rescue Suleman. The accused-Mulla, Ghuttu, Pappi, Gurgan, Yakub, Shakkar @ Shakarulla started firing immediately thereupon and caused injuries to Nabbi, Asru, Azad, Harun, Mangal, Haruni and Rubila. The injury report of Nabbi is Exhibit-P45.

¶118

PW7-Haruni w/o Suleman has corroborated the statements of other witnesses. It is stated that after hearing an

¶119

(14 of 19)

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[CRLA-79/2016]

¶121

announcement of Maulvi from the Masjid, she went to the place of occurrence. When they tried to intervene in the scuffle, Heere Khan asked to open fire. Mulla, Ghuttu, Pappi, Gurgan, Aakub, Shakkar @ Shakarulla started firing. Pappi fired ‘chharra’ on Hamida. Mangal, Azad, Nabbi and others also received injuries out of firearm. The injury report of the said witness is Ex.P.46.

¶122

PW8-Mangal s/o Ramjani has stated that Mulla, Ghuttu, Pappi, Gurgan, Aakub, Shakkar @ Shakarulla started firing which caused injury to him, Nabbi, Asru, Azad, Hamida. The injury report of the said witness is Ex.P47.

¶123

PW10-Azad s/o Bhure Khan has stated that Mulla, Ghuttu, Pappi, Yakub, Gurgan, Shakkar @ Shakarulla started firing on the direction of Heere Khan which caused injury to Azad, Nabbi, Asru, Mangal, Hamida. The injury report of the said witness is Ex.P8.

¶124

PW11-Hamida s/o Ramjani has stated that when he went to the place of occurrence with Mangla, Haruni, Nabbi, Azad, he saw the accused beating Suleman. When he tried to intervene, Aasu gave a farsa blow on his head. On the direction of Heere Khan, the accused-Sahun, Shakarulla, Mulla, Guttu, Aakub, Pappi climbed on the roof and started firing. Guttu fired on him which caused injury to his neck, abdomen and knee. The injury report of the said witness is Ex.P44.

¶125

PW13-Asru s/o Dalla Mev has stated that on the direction of Heere Khan, all the accused started firing blindly from the roof. Yakub fired on him, Pappi fired on Nabbi, Haruni, Suleman and Yakub opened fire on Azad, Sakarulla caused a firearm injury to Mangal, Guttu caused an injury to Hamida. Gurgan fired on Harun. Gurgan, Mulla, Pappi and Ghuttu fired on Dafedar. The injury report of Asru is marked as Ex.P2.

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(15 of 19)

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PW14-Asru s/o Surajmal has made corroborative statement. The injury report of the said witness is Ex.P1. PW16-Rubeela w/o Taheer (PW-16) has stated that on the direction of Heere Khan, the accused-Mulla, Ghuttu, Pappi, Yakub, Sakurulla and Gurgan started firing on the injured and the deceased. Gurgan fired on him but it hit a wall due to which a stone broke down and fell on her head and caused injury. Asib caused a lathi blow on her knee. Her injury report is Ex P48.

¶129

The injured witnesses were cross-examined by the appellants but their statements could not be demolished. Their testimony has been believed by the trial court. The evidence of the eyewitnesses as well as the injured witnesses is corroborated by injury reports as well as post-mortem report. The deceased had received injuries out of firearm so as the injured witnesses.

¶130

The post-mortem report is Exhibit-P41, whereas, injury reports of Asru s/o Surajmal and Asroo s/o Dalla are Exhibit-P1 and Exhibit-P2. The injury reports of Harun, Ayub, Azad, Nasroo, Suleman, Hamida, Nabbi, Haruni, Mangal & Ruvilla are Exhibit-P5, P7, P8, P42, P43, P44, P45, P46, P47, P48 respectively and proved by the witnesses. The perusal of injury reports shows injuries to the injured out of fire arm as well as from sharp-edged weapon apart from blunt object. The injury reports and the post-mortem report have corroborated the statements of eye-witnesses as well as the injured witnesses. The recovery of firearm has been made from accused-Pappi, Yakoob s/o Saudan, Mohammad Khan and Sakrullah.

¶131

A “Katta” was recovered from Mohammad Khan but he has not been named for opening fire or any overt act. It was recovered from an open place. It was accessible to every one. In view of the

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(16 of 19)

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above, challenge to the conviction and sentence of the said accused has been made. The firearms were recovered from Pappi and Yakoob S/o Saudan through recovery memo Exhibit-P112 and P113.

¶135

PW35-Fakruddin has not supported the prosecution case for recovery. He was declared hostile. He, however, admitted his signature on recovery memo of the weapons, Exhibit-P112 and P113. PW-25 Nijra was also declared hostile. The site plan ExhibitP-6 has been proved.

¶136

It is, no doubt, true that occurrence took place at the open place. If the statement of PW3-Khursid, so corroborated by other witnesses, is taken into consideration, initiation of the occurrence was at the instance of accused-Sahib and Asib S/o Mulla. These two accused had first beaten Suleman and, thereupon, called other accused. At their instance, other accused came with deadly weapons and caused the incidence.

¶137

There are few accused whose presence has been shown but their participation in the occurrence has not been attributed by any of the witnesses produced by the prosecution. The recovery of “lathi” has been made from the accused other than from Gaini S/o Sunpat but it was not bloodstained and remains available in the villages. In view of the above, we find that even if a case is taken into consideration with the aid of Section 149 IPC, conviction of certain accused cannot be maintained only due to their presence at the place of occurrence without an overt act. We find that the prosecution could not bring evidence against Heere Khan S/o Chahat Khan, Abbas S/o Heere Khan, Saddiq S/o Hari Singh, Sakrullah S/o Gaini, Mehboob S/o Dumla, Gaini S/o Sunpat, Mohammad Khan S/o Dhoop Khan, Rahish S/o Hari Singh, Sajid

¶138

(17 of 19)

¶139

[CRLA-79/2016]

¶140

S/o Asu and Yakoob S/o Gaini for their participation in the occurrence. The recovery of “lathi” has been made from few of them but it was not bloodstained thus accused cannot be connected with the offence even with the aid of Section 149 IPC. The common object of those accused could not be proved by the prosecution.

¶141

The recovery of “Katta” from Mohammad Khan has not been believed by this court because it was from an open place, which was accessible to every one and he has not been named for any overt act in the occurrence.

¶142

Accordingly, we find reasons to cause interference in the sentence for offences with the aid of Section 149 IPC against those accused whose participation in the occurrence has not been proved. Heere Khan S/o Chahat Khan, Abbas S/o Heere Khan, Saddiq S/o Hari Singh, Mehboob S/o Dumla, Gaini S/o Sunpat, Mohammad Khan S/o Dhoop Khan, Rahish S/o Hari Singh, Sajid S/o Asu and Yakoob S/o Gaini are, accordingly, acquitted of their respective offences. The conviction of Mohammad Khan for offence under Section 3/25 of the Arms Act is also interfered as recovery of “katta” was from open place accessible to every one. The said accused is acquitted of the offence under Section 3/25 of the Arms Act.

¶143

The issue now remains for other accused. The statements of eye-witnesses as well as injured witnesses shows their active participation in the occurrence. The participation of accused-Sahib, Asif, Yakoob S/o Saudan, Asu, Ghuttu and Pappi in the occurrence is not only proved but their common object is also established. They came at the place of occurrence on a call by Sahib and Asib. Ghuttu, Pappi, Mulla, Gurgan, Sakarulla and Yakub climbed on the

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(18 of 19)

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[CRLA-79/2016]

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roof and opened fire. The charge sheet against Mulla and Gurgan has been kept pending as they were absconding. The participation of other accused with use of sharp-edged weapon as well as “lathi” has also been proved. In view of the above, even if PW25Nirja and PW35-Fakruddin were declared hostile, the case of the prosecution is not affected because recovery of weapon has been proved by other witnesses. PW35 has testified his signature on Exhibit-P112 and P113 i.e. recovery of the weapons from the accused. In view of the above, conviction and sentence of Sakrullah, Sahib, Asib, Yakoob S/o Saudan, Asu, Ghuttu and Pappi is not interferred. We find that the prosecution could prove their case beyond doubt against the aforesaid accused, therefore, the trial court has rightly convicted and sentenced them for the offences under Sections 148, 302/149, 307, 324/149, 323 IPC.

¶147

Learned counsel for appellants has taken plea of selfdefence. We do not find a case of self-defence in favour of the accused-appellants. We have already discussed the statements of the witnesses. It is sufficient to show that initially accusedappellants-Sahib and Asib abused Suleman. They were asked to stop it, gave beating to injured Suleman. They even called other accused, thus complainant party was aggressor in this case. In fact, the incidence took place when initially Sahib and Asib gave beating to Suleman. They, thereafter, called other accused who came and opened fire and, for that, came equipped with firearms. Accordingly, we do not find that a case of self-defence is made out.

¶148

In view of the above, we set aside the order of conviction and sentence against accused-appellants-Heere Khan, Abbas, Saddiq, Mehboob, Gaini, Mohammad Khan, Rahish, Sajid, Yakoob

¶149

(19 of 19)

¶150

[CRLA-79/2016]

¶151

S/o Gaini while maintaining it against accused-Sakrullah, Sahib, Asib, Yakoob S/o Saudan, Asu, Ghuttu and Pappi.

¶152

With the aforesaid, criminal appeals are partly allowed.

¶153

A copy of this order be placed in each connected file.

¶154

Since the investigation has been kept pending under Section 173(8) Cr.P.C., the Registry is directed to send the record back to the trial court.

¶155

In view of the provisions of Section 437-A Cr.P.C., accusedappellants-Heere Khan, Abbas, Saddiq, Mehboob, Gaini, Mohammad Khan, Rahish, Sajid and Yakoob S/o Gaini are directed to furnish a personal bond in the sum of Rs.50,000/- each with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants will appear before the Supreme Court on receipt of notice thereof.

¶156

(BANWARI LAL SHARMA),J (M.N. BHANDARI),J

¶157

FRBOHRA

Yakoob and Anr. v. State of Rajasthan through Pp

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Yakoob and Anr. v. State of Rajasthan through Pp

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