Dismissed

Hussain v. State

Rajasthan HC8 Jul 2022CRLA/407/1992

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a criminal appeal against conviction under Section 307 IPC for opening fire on Border Security Force personnel. The court upheld the conviction despite the appellant's reliance on a Supreme Court precedent, distinguishing facts based on corroborated witness testimony and identification evidence.

What did the court decide?

The Criminal Appeal is dismissed; the conviction and sentence under Section 307 IPC, Arms Act, and Passport Rules are upheld.

Hussain Vs State — Cheque Dishonour | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Criminal Appeal No. 407/1992

Hussain

----Appellant

Versus

State

----Respondent

¶8

For Appellant(s) : Mr. L.D. Khatri For Respondent(s) : Mr. Vikram Sharma, P.P.

¶9

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

¶10

Judgment

¶11

Reserved on 04/07/2022 Pronounced on 08/07/2022

¶12

This Criminal Appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:-

¶13

“ It is, therefore, humbly prayed that your Lordship may be pleased to accept this appeal and set aside the judgment of conviction and order of sentence dated 23.11.1992 and acquit him of the charges levelled against him.”

¶14

This Criminal Appeal has been preferred against the judgment dated 23.11.1992 in Sessions Case No. 83/1991 (12/91) passed by Sessions Judge, Jaisalmer convicting the appellant under Section 307 I.P.C. and sentenced him to undergo five years R.I. along with a fine of Rs. 5,000/- in default of payment of which he was to further undergo 1 ¼ years R.I.; the appellant was also convicted under Rule 3 read with Rule 6 of the Passport (Entry into India) Rules, 1950 along with a fine of Rs.200/- in default of payment of which he was to further undergo

¶15

(2 of 10)

¶16

[CRLA-407/1992]

¶17

8 days imprisonment; though the appellant was acquitted of the offence under Section 25 read with Section 27 of the Arms Act.

¶18

Brief facts of the case as placed before the Court by the learned counsel on behalf of the appellant submits that it is the case of the prosecution that on 22.8.1990, a police party of the Border Security Force (B.S.F.) comprising Harpool Singh, Tej Narain, Mahesh Kumar, Tejdan, Brijesh Kumar, Shreeram and Hariram proceeded to arrange a blockade at the Dhanana post. That the police party was further divided into sub-parties, and that one of the sub-parties, comprising Harphoolsingh, Tej Narain and Mahesh Kumar, at about 9 p.m. came upon four riders astride camels, who were seen coming from the side of Pakistan. The B.S.F. party flashed the torch light towards them, in response to which the said intruders opened gun fire. This was countered by the B.S.F. party, and one of the riders along with his camel were injured as a result of the same. The other men dismounted their camels and fled from the scene. And that, when Harphoolsingh along with the other officers went near the injured person, he disclosed his name to be Jiyant, R/o Mataron Ki Basti, and he also disclosed the name of his associates as Hussain, Sattar and Mohammed. He further stated that they were carrying silver from Pakistan. Harphoolsingh passed on the said information to the C.C.O. (Company Commander) Didarsingh who then arrived on the spot and in whose presence, a search of Jiyant’s person and belongings were made. Upon the same, a recovery of ‘Three Node Three’ (303) rifles, cartridges for the same, silver bars were recovered among other things. Subsequently after investigation

¶19

(3 of 10)

¶20

[CRLA-407/1992]

¶21

was completed, the police filed a charge sheet against the accused for the offences under Section 307 I.P.C., Sections 25 and 27 of the Arms Act, and Rules 3 and 6 of the Passport (Entry into India) Rules, 1950.

¶22

Learned counsel for the appellant further submits that the learned Court below has not taken into due consideration the overall facts and circumstances of the present case, and the evidences placed on record before it and, therefore, erred in passing the impugned judgment.

¶23

Learned counsel for the appellant also submits that the learned Court below has incorrectly considered the alleged statement of Jiyant, who subsequently succumbed to his injuries, as a dying declaration. And that it is evident from the medical evidence that he was not in a fit condition to give a statement. Furthermore, as per the evidence produced by the prosecution, he was also charged as an accomplice.

¶24

Learned counsel for the appellant further submits that the police officials are highly interested in the prosecution of the accused, and hence, conviction on the basis of the alleged dying declaration, obtained through the testimony of the police officials is not sustainable in the eye of the law.

¶25

Learned counsel for the appellant further submits that the other accused persons, namely Sattar and Mohammed have been acquitted for the reason that their conviction could not be recorded on the sole basis of the alleged dying declaration by Jiyant.

¶26

(4 of 10)

¶27

[CRLA-407/1992]

¶28

Learned counsel for the appellant also submits that although it was held that the case of the present appellant is distinguished from that of the co-accused, who were acquitted of all the charges against them, on the ground that the petitioner has been identified by the witness, Narain Tiwari, the appellant was not known to Narain Tiwari, nor was any identification parade arranged and carried out, and that a simple and plain identification in the Court, is not sufficient for recording the conviction of the appellant; and therefore the case of the appellant is on the same footing as that of the co-accused.

¶29

8.1 Learned counsel for the appellant further submits that the incident in question occurred during the night-time, and that it cannot be clearly ascertainable that the appellant herein opened gunfire on the B.S.F. party, and even if the same is to be believed then the intention to do so on the part of the present appellant is wholly absent.

¶30

Learned counsel for the appellant placed reliance on the decision of the Hon’ble Apex Court rendered in the judgment of Vasudev Vs. State of Madhya Pradesh (2022) 4 SCC 735 wherein the Hon’ble Apex Court held that the learned Trial Court and the Hon’ble High Court of Madhya Pradesh erred in convicting the accused under Section 307/34 I.P.C. read with Section 27 of the Arms Act, as the ingredients under Section 307 I.P.C. were found to be absent with respect to the accused in the said case. Learned counsel further submitted that in the present case merely because the accused opened retaliatory fire upon the police authorities, it could not be construed to mean that intention or

¶31

(5 of 10)

¶32

[CRLA-407/1992]

¶33

knowledge, as required for an offence under Section 307 IPC to be made out, was present.

¶34

On the other hand, learned Public Prosecutor opposes the submissions made on behalf of the appellant and submits that the learned Court below has rightly passed the impugned judgment of conviction after looking into the overall facts and circumstances of the case, and after a thorough perusal of the evidences placed on the record before it.

¶35

Learned Public Prosecutor further submits that on 22.08.1990 when Harphoolsingh, P.W. 1, Tej Narain, P.W. 4, Mahesh Kumar P.W. 7 and Tej Dan, Brijesh Kumar Shri Ram and Hari Ram along with others were patrolling the area around the Dhanana outpost, they saw 4 men riding camels, at which point they flashed their torchlight and the men opened fire on them. And that, in retaliation, and to protect themselves the B.S.F. party fired back, upon which one rider and his camel were injured. And that, the other 3 riders dismounted their camels and fled the scene on foot. And that when Harphoolsingh approached the injured man along with other officers, the injured accused revealed the names of his accomplices, and subsequently a recovery of 303 Bore Rifles and cartridges, along with 125 Silli of silver was made.

¶36

Learned Public Prosecutor also submits that P.W. 6, Gajendra Kumar Parmar, the medical coroner who conducted the post mortem report of the deceased Jiyant, stated that the post mortem revealed that the deceased sustained bullet injuries to his right shoulder, and chest, as a result of which his right lung was

¶37

(6 of 10) [CRLA-407/1992]

¶38

punctured and his clavicle bone was shattered. And that due to excessive bleeding, Jiyant succumbed to his injuries and passed away. And that the learned Court below rightly found that the statement made by Jiyant, given the circumstances, were beyond suspicion and therefore, could be relied upon.

¶39

Heard learned counsel for both parties and perused the record of the case.

¶40

This Court observes that the learned Court below framed issues, and answered them in the following manner:

¶41

14.1 The first issue being whether the four accused persons astride camels opened gun fire at the B.S.F party and if yes, then whether the same was done with an intention to kill, and also whether the present accused-appellant, Hussain, was one among those persons who opened said gun fire at the B.S.F party.

¶42

14.2 Upon a perusal of the testimonies of multiple witnesses, the learned Court below rightly concluded that the four accused persons astride camels entering India through Pakistan, opened gun fire at the B.S.F party, when they had shone their torch lights on them.

¶43

14.3 Although except Jiyant, while the other accused were not apprehended on the spot, the statement given by Jiyant to Harphoolsingh and the other officers, rightly treated as a dying declaration, clearly points to the fact that Hussain, Sattar and Mohammad were his accomplices in the incident in question.

¶44

14.3.1 The learned Court below further considered whether the statement made by Jiyant could be brought within the purview of

¶45

(7 of 10)

¶46

[CRLA-407/1992]

¶47

Section 30 of the Indian Evidence Act of 1872, but rightly found that since Jiyant was no more, the requirement under Section 30 remained unfulfilled and therefore the statements would not fall under the purview of the said Section 30 of the Act of 1872.

¶48

14.3.2 The learned Court below also considered whether Jiyant, before succumbing to his injuries, was in a fit medical condition to give a statement, and rightly found that since neither the medical report nor the testimony of Dr. Devendrasingh P.W. 8 state or point to any fact that in light of the injuries sustained by Jiyant, a punctured lung and bullet wound to his right shoulder, he was not in a position to make statements and that therefore, it was safe to assume that he was in a position to speak and have made the statements that he is said to have made.

¶49

14.3.3 This finding of the learned Court below is further fortified by the testimonies of the witnesses, and therefore the learned Court below has rightly found the statements of Jiyant to qualify as a dying declaration under Section 32 (3) of the Indian Evidence Act, 1872, to be admissible into evidence.

¶50

14.4 Furthermore, the learned Court below rightly held that that although Harphoolsingh was unaware of the full name of the accomplices, namely Hussain, Mohammad and Sattar, and although he also was unaware of which villages they were from, Tej Narain was able to identify the accused in open Court, and his explanation for the same, which was rightly appreciated by the learned Court below, that when the incident in question occurred, he saw Hussain’s face, when as part of the B.S.F. party he shone a light on the faces of the four men riding atop their camels, and

¶51

(8 of 10)

¶52

[CRLA-407/1992]

¶53

that is how he was able to recognize the faces of the accusedappellant herein.

¶54

14.5 This Court also observes that the learned Court below has also rightly found that, on the basis of the testimonies of witnesses, Hussain was among those persons who opened fire on the B.S.F. party and the fact that he opened fire at the officers of the B.S.F. party, in the direction from which the torch light was flashed at them, and therefore the offence under Section 307 I.P.C. is made out against Hussain.

¶55

The learned Court below framed the second issue, being whether the accused appellant herein was carrying the firearms in question without a license for the same.

¶56

15.1 On the said issue, the learned Court below rightly found that the fact that the accused-appellant was carrying the 303 Bore Rifles, has been established, and that from among the recovery made from the accused, no license for the same was discovered and therefore, it fairly concluded that the accused-appellant did not have a license for the weapons he was so carrying.

¶57

The learned Court below proceeded to frame the third and final issue; whether the accused-appellant entered India without a valid passport.

¶58

16.1 In answering the above question, the learned Court below found that from the accused, along with a recovery of arms, ammunition, and silver; the concerned authorities also found receipts, at Ex. P/7 and Ex. P/17, from a shop located in Pakistan. And, under such circumstances, that he entered into India riding

¶59

(9 of 10)

¶60

[CRLA-407/1992]

¶61

on a camel, through shops bearing addresses of Pakistan, and safely assumed that looking into the same, the accused-appellant entered India without a valid passport.

¶62

This Court finds that the judgment rendered by the Hon’ble Apex Court in Vasudev (supra), as cited by learned counsel for the appellant does not apply to facts and circumstances of the present case. In the said case, the version of the prosecution was not corroborated by the testimonies of the witnesses, nor was the prosecution able to sufficiently establish through evidences placed on record that the accused therein had the intention or knowledge, as required under for the offence under Section 307 I.P.C. and subsequently the accused in the said case had also surrendered before the concerned police authorities. Whereas, in the present case, the testimonies of the witnesses corroborate the version of the prosecution, and the accused did not surrender but sought to evade the B.S.F. authorities after opening fire on them. Furthermore, the intention and knowledge, requisites for an offence under Section 307 I.P.C., is made out against the accused, as above mentioned, and at the cost of repetition is stated that since the accused herein opened fire directly at the B.S.F. personnel, and when the party shone their torch light on them, and was clearly identified as well by the witness, Narain Tiwari.

¶63

17.1 Furthermore, in Vasudev (supra) , the Hon’ble Apex Court arrived at the finding, as discussed above, after a careful consideration of the evidences placed on record, and arrived at the conclusion that the prosecution had failed to prove its case beyond

¶64

(10 of 10)

¶65

[CRLA-407/1992]

¶66

reasonable doubt. However, such is not the case in the present appeal.

¶67

17.2 Therefore, the facts and circumstances of the case in Vasudev (supra) are peculiar to the said case, and are wholly inapplicable to the present case, and both are therefore, not on an equal footing.

¶68

This Court, in light of the above made observations, finds that the impugned judgment passed by the learned Court below does not suffer from any legal infirmity, and therefore, no cause for interference by this Court is made out.

¶69

This Criminal Appeal is hereby dismissed, for the reasons above mentioned. All pending applications are disposed of. Records of the learned court below be sent back forthwith.

¶70

(DR.PUSHPENDRA SINGH BHATI), J.

¶71

34-Skant/-

Hussain v. State

Case brief

What is this about?

What did the court decide?

Hussain v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Avnish Singh Vs State of Rajasthan

Dinesh Vs State

Pyarelal Vs Narendra Singh

Lrs of Babu Lal Vs Bhikha Singh

Pannalal Vs State

Poona Ram Vs State