Dismissed

Rafique S/O Suleman Khan B/C Kasai Musalman v. State of Rajasthan Thjrough Pp

Rajasthan HC15 Sept 2023CRLAD/447/2018

Case brief

AI extract

What is this about?

This court dismissed a criminal appeal against conviction and sentence for murder and attempted murder. Confirming the trial court's finding of common intention among the appellants to attack the victims, the High Court upheld the sentences of life imprisonment and ten years' imprisonment, directing cancellation of bail.

What did the court decide?

Criminal appeal dismissed; bail bonds cancelled and accused directed to be taken into custody.

Rafique S/O Suleman Khan B/C Kasai Musalman… — Murder and Culpable Homicide | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal (Db) No. 447/2018

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Rafique S/o Suleman Khan, R/o Luharon Ka Mohalla PS Samod District Jaipur (At Present In Central Jail Jaipur)

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Hamid S/o Suleman Khan, R/o Luharon Ka Mohalla PS Samod District Jaipur (At Present In Central Jail Jaipur)

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Hafiz S/o Suleman Khan, R/o Luharon Ka Mohalla PS Samod District Jaipur (At Present In Central Jail Jaipur)

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----Appellants

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Versus

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State Of Rajasthan Through Public Prosecutor

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----Respondent

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For Appellant(s)	: Mr.	Rinesh Gupta, Adv. with
	Mr.	Gaurav Sharma, Adv. and
	Ms.	Sakshi Swami, Adv.
For Respondent(s)	: Mr.	Javed Choudhary, Addl.G.A.

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HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

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Judgment

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JUDGMENT RESERVED ON :: 24/08/2023 JUDGMENT PRONOUNCED ON :: 15/09/2023

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(Per - Hon’ble Pankaj Bhandari, J.)

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The appellants have preferred this Criminal Appeal aggrieved by the judgment and sentence dated 30.10.2018 passed by the Additional District & Sessions Judge, Chomu, District Jaipur, whereby the accused appellants have been convicted and sentenced as herein under:-

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Accused Appellant- Rafique:-

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(i) For the offence under Section 341 IPC - 1 month simple imprisonment.

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(ii) For the offence under Section 323/34 IPC - 1 year simple imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo 7 days simple imprisonment.

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(iii) For the offence under Section 326/34 IPC - 10 years simple imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo 2 months simple imprisonment.

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(iv) For the offence under Section 307/34 IPC - 10 years simple imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo 2 months simple imprisonment.

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(v) For the offence under Section 302/34 IPC- Life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo 6 months imprisonment.

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Accused Appellant- Hamid:-

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(i) For the offence under Section 341 IPC - 1 month simple imprisonment.

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(ii) For the offence under Section 323/34 IPC- 1 year simple imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo 7 days simple imprisonment.

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(iii) For the offence under Section 326/34 IPC- 10 years simple imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo 2 months simple imprisonment.

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(iv) For the offence under Section 307/34 IPC- 10 years simple imprisonment and a fine of Rs.5,000/- and in default

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of payment of fine, to further undergo 2 months simple imprisonment.

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(v) For the offence under Section 302 IPC - Life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo 6 months imprisonment.

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Accused Appellant- Hafiz:-

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(i) For the offence under Section 341 IPC- 1 month simple imprisonment.

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(ii) For the offence under Section 323/34 IPC- 1 year simple imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo 7 days simple imprisonment.

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(iii) For the offence under Section 326/34 IPC- 10 years simple imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo 2 months simple imprisonment.

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(iv) For the offence under Section 307 IPC- 10 years simple imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo 2 months simple imprisonment.

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(v) For the offence under Section 302/34 IPC- Life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo 6 months imprisonment. All the sentences are ordered to run concurrently.

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Succinctly stated the facts of the case are that on 24.05.2012, complainant - Mohd. Rafique (PW-1) submitted a written report (Exhibit-P1) at Police Station Samod, District Jaipur. On the basis of the said report, the police registered an FIR

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bearing No.82/2012 (Exhibit-P2) at 12:15 pm. The case of the prosecution is that on 23.05.2012 a film was being shot in Samod Market. A contract was given to the complainant’s brother Jakir Hussain (PW-4) to decorate the shops situated in the market. The money, which was received by Jakir on completion of the contract, was distributed amongst the shopkeepers in the market. Accused Appellant - Hafiz son of Suleman started quarreling with Jakir over less amount being paid. A physical altercation broke out between Hafiz and Jakir. They were separated by the neighbours. After two hours, the complainant - Mohd. Rafique (PW-1), Jakir, Irfan s/o Mohd. Rafique and nephew of Mohd. Rafique - Abdul Hakim were leaving the chowk for their house. Hafiz s/o Suleman, Hamid s/o Suleman, Saddam s/o Rafique, Latif s/o Suleman, Rafique s/o Suleman, Chand s/o Rasid, Rasid s/o Suleman and 2-3 other boys came to the place with a butcher’s knife and other knives as well as iron rods and attacked them.

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As per the prosecution case, Hafiz, Rafique, Hamid and Saddam were carrying butcher knives, while Latif, Rasid and Chand were carrying simple knives and other boys had iron rods. Hafiz and Hamid attacked Irfan with butcher knives. Latif and Rafique had caught hold Irfan and were calling to kill him. Hafiz caused injury to his abdomen, which led to the intestines spilling out, and Hamid gave a blow to his head and his private parts, due to which, he received serious injuries to his private part. Hamid hit deceased Abdul Hakim on his head with an iron rod. The other boys had caught hold of the complainant – Rafique (PW1) and his brother Zakir Hussain (PW-4), while everyone was making calls of killing them. When the neighbours reached the place of

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occurrence, the accused appellants ran away. Abdul Hakim expired on 01.06.2012.

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After due investigation, police filed charge-sheet for the offence under Sections 341, 323, 326, 307 & 302 of IPC. Trial Court framed charges for the offence under Sections 341, 323/34, 326, 307 & 302/34 of IPC. Accused appellants denied the charges and sought trial. Upon which, 24 witness were examined and 36 documents were exhibited on behalf of the prosecution. Explanation of the accused appellants was recorded under Section 313 Cr.P.C, wherein they have stated that they have been falsely implicated in the case. In defence, 3 documents were exhibited as Exhibit-D1 to D3. After hearing the arguments of both the parties, the learned trial Court has convicted and sentenced the accusedappellants as mentioned herein-above, aggrieved by which, the present appeal has been filed.

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It is contended by the learned counsel appearing for accused appellants that there is an inordinate delay in lodging the FIR. A typed report has been lodged after consulting a lawyer and after noting the injuries sustained by the injured and the deceased. It is also contended that the FIR was lodged against 9-10 persons, whereas only 3 persons have been charge-sheeted, meaning thereby that the Investigating Agency has also come to the conclusion that the FIR is exaggerated. It is further contended that the injured were shifted to the hospital on the same day, however, no information was given by the hospital to the Police and both the injured were operated on the same night. It is apparent that the Police must have been informed on time and as admitted by Mahendra Singh, SHO (PW-22), he had received the

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information about the incident, but no such information has been placed on record.

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It is contended that there is no signature on the first page of the FIR, which fact is admitted by Mohd. Rafique (PW-1) and lodger of the FIR – Mahendra Singh, SHO (PW-22). It is also contended that Jakir Hussain (PW-4) is a chance witness and his presence is doubtful, as he has not sustained any injury. It is further contended that the learned Trial Court has not considered the statements of Om Prakash (PW-11), Salim (PW-12) and Kishore Kumar (PW-15), who have deposed that there was no light at the place of incident and they could not see as to who caused the injures to whom. It is also contended that as per the FSL Report, the recovery of weapons does not connect the accused appellants with the alleged offence, as there was no matching of blood with that of the injured & the deceased. It is also contended that there is nothing on record to show that the articles, which were recovered, were seized and sealed on the spot and that it were kept intact till it reached the FSL. It is argued that both the injured and the deceased were discharged from the hospital and the deceased died after 7 days of the incident. Learned counsel has, therefore, prayed that the appeal of the appellants may be allowed and they may be acquitted of charges levelled against them.

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Learned Additional Government Advocate appearing for the State has vehemently opposed the Criminal Appeal. It is argued that Irfan (PW-10), who is the injured, is a reliable witness. He has specifically stated that Hafiz stabbed in his stomach and Hamid gave a blow on his head with an iron rod. He has also

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stated that Saddam stabbed in the stomach of the deceased and Hamid gave a blow on head of the deceased with an iron rod and knife and after both of them fell down, they were beaten by the accused appellants. It is also argued that the injuries, which are assigned to the accused appellants, are matching with the injuries that injured and deceased have sustained, as per their injury reports. It is also argued that Mohd. Rafique (PW-1) and Jakir Hussain (PW-4) are also eye-witnesses. Mohd. Rafique (PW-1) has received injuries, which establishes that he was present at the place of occurrence. He has deposed that Hafiz stabbed in the stomach of Irfan and Hamid stabbed at the private parts and on the head of Irfan. With regard to Abdul Hakim, he has deposed that Saddam stabbed in the stomach of deceased-Abdul Hakim and Hamid gave a blow with an iron rod on the head of the deceased. Learned Additional Government Advocate for the State has also stated that Jakir Hussain (PW-4) has also stated that Hafiz stabbed in the stomach of Irfan. He has also stated that Hamid gave an iron rod blow on the head of the deceased and Rafique & Saddam stabbed in the stomach of the deceased.

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It is contended that the evidence clearly points out towards the guilt of the accused-appellants and the learned Trial Court has not committed any error in convicting and sentencing the accused appellants.

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We have considered the contentions raised by the learned counsel for the parties and have scanned through the evidence available on record.

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Mohd. Rafique (PW-1), who is the complainant of this case, has deposed that some dispute arose with regard to the payment

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of money to the shopkeepers. He has deposed that when they were going towards their home at around 9:00-10:00 pm, Latif and Rafique caught hold of his son Irfan (PW-10). Hafiz stabbed in the stomach of Irfan and Hamid stabbed at the private parts and on the head of Irfan. Chand and Rasid then caught hold of his nephew Abdul Hakim (deceased), Saddam stabbed in the stomach of the deceased and Hamid gave an iron rod blow on the head of the deceased. He also deposed that after Irfan and Abdul Hakim fell down, all the accused persons gave beating to them. Jakir Hussain (PW-4) has also deposed that when he along with Mohd. Rafique (PW-1), Irfan (PW-10) and Abdul Hakim (deceased) were going towards their house, Rafique and Latif caught hold of Irfan and Hafiz stabbed in his stomach. Thereafter, Chand and Rasid caught hold of Abdul Hakim (deceased) and Rafique & Saddam stabbed in his stomach and Hamid gave an iron rod blow on his head.

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Irfan (PW-10), who has sustained a stab wound, has deposed that when he along with Jakir, Mohd. Rafique and Abdul Hakim were going towards their home, Rafique and Latif caught hold of him; Hafiz stabbed him in his stomach and Hamid gave an iron rod blow on his head. He has also deposed that Rasid and Chand caught hold of Abdul Hakim (deceased); Saddam stabbed in the stomach of Abdul Hakim and Hamid gave a blow with an iron rod and a knife on the head of Abdul Hakim. He also deposed that after they fell down, all the accused persons gave blows to both of them.

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So far as the contention of counsel for the appellants with regard to the statements of Om Prakash (PW-11), Salim (PW-12)

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and Kishore Kumar (PW-15) is concerned, they have deposed that there was darkness at the time of the alleged incident and thus, it was not possible to establish that the accused appellants had committed the alleged offence. We are not inclined to accept the said argument for the very reason that injured Irfan (PW-10) has clearly deposed about the complete incident. His testimony finds support from the testimony of Mohd. Rafique (PW-1), who has also sustained injuries and the injuries are also corroborated with the medical report. Irfan (PW-10), who is the injured witness and who has received stab wound in his stomach and whose intestines spilled out, is a reliable witness. He has clearly stated that Hafiz stabbed him in his stomach & Hamid gave an iron rod blow on his head. Mohd. Rafique (PW-1) and Jakir Hussain (PW-4) both have narrated the incident and have stated that Rafique and Latif caught hold of Irfan (PW-10) and Hafiz stabbed him in his stomach & Hamid gave an iron rod blow on his head. Mohd. Rafique (PW-1) has sustained injuries and Irfan (PW-10) and deceased – Abdul Hakim sustained stab wounds and were operated on the same day. The testimony of injured witnesses is reliable and weightage ought to be given to the evidence of injured witnesses. The Apex Court in Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra : (2000) 8 SCC 457 , has held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. The Court also observed that minor contradictions are bound to appear in the statement of truthful witness, as memory sometimes plays falls and sense of observation differs from person to person.

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The injury caused by Hafiz in the stomach of Irfan (PW-10) is said to be dangerous to life by Dr. Shiv Lal Mehra (PW-16), who has deposed that the injury, which was caused on the stomach of Irfan, was dangerous to life. Mohd. Rafique (PW1), Jakir Hussain (PW-4) and Irfan (PW-10) have categorically stated that after injured Irfan fell down, Chand and Rasid caught hold of Abdul Hakim while Saddam and Hamid caused injury to Hakim. Hakim fell down, then all these persons gave beating to them. The accused appellant – Hafiz, who has caused a stab wound on the stomach of Irfan (PW-10) is thus guilty of attempt to murder.

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So far as the role of Hamid is concerned, Irfan (PW-10) has stated that Hamid gave an iron rod blow on his head. He has also deposed that Hamid gave a blow with an iron rod and a knife on the head of the deceased. Mohd. Rafique (PW-1) has also stated that Hamid gave an iron rod blow on the head of deceased. Similar is the statement of Jakir Hussain (PW-4), who has also deposed that Chand and Rasid caught hold of Abdul Hakim and Hamid gave an iron rod blow on the head of Abdul Hakim and Rafique & Saddam stabbed in his stomach. It is the consistent case of prosecution that Hamid gave an iron rod blow on the head of Abdul Hakim. As per the postmortem report (Exhibit-P22), the cause of death of the deceased is injury No.3 caused on the right parietal region, which injury is assigned to Hamid. Hamid has thus, caused injury to the vital part of the body and the bodily injury suffered by deceased was sufficient in the ordinary course of nature to cause death. Hamid is thus, guilty for offence under Section 302 of IPC.

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From the evidence available on record, it is crystal clear that all the accused appellants in furtherance of their common intention attacked the complainant party. Accused Hamid gave a blow with an iron rod on the head of deceased – Abdul Hakim and after Abdul Hakim fell down, all the accused appellants gave beating to him. Thus, accused appellant – Hafiz and Rafique are guilty for offence under Section 302/34 of IPC. Similarly, accused appellant – Hafiz stabbed on the stomach of Irfan, which injury was dangerous to life and accused appellant – Rafique caught hold to him and when he fell down, the accused appellants gave beating to him. Thus, accused appellant – Hamid and Rafique are guilty for offence under Section 307/34 of IPC.

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As per Section 34 of the IPC, when the criminal act is done by the several persons, in furtherance of the common intention of all, each such person is liable for the act in the same manner as if it was done by him alone. The accused appellants armed with butcher knives and iron rod had attacked the deceased and injured Mohd. Irfan (PW-10). Thus, the learned Trial Court has not committed any error in arriving at the conclusion of guilt of the accused appellants and has not erred in sentencing them. We do not find any force in the present appeal, hence, the appeal deserves to be and is, accordingly, dismissed.

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Rafique and Hafiz, who are on bail during the pendency of the case, their bail bonds furnished stand cancelled and the learned trial Court is directed to take necessary steps for taking the accused appellants – Rafique and Hafiz in custody for serving the remaining sentence.

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