SHAHID KHANversusSTATE OF RAJASTHAN

                           (2016] 2 S.C.R. 284



A                           SHAHID KHAN
                                    v.
                        STATE OF RAJASTHAN
                    (Criminal Appeal No. 1460of2008)
B                           MARCH 02, 2016
       (JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.)
         Penal Code. 1860: ss.1../7. 148, 3021149 and 397 - Murder -
  Prosecution case that accused five in number caused injuries to the
c victim-deceased  with sword and knife -· Incident stated to have been
  witnessed by PW25 and his driver PW24 who had come from Kota
  to Jhalawar to meet the deceased - Thereafter, out of fear they hid
  themselves - Victim was declared brought dead - Trial court
  acquitted accused no. I and convicted accused no.2 to 5 - High
  Court affirmed the conviction of accused no.2 to 5 - On appeal,
D held: Presence of PW24 and PW25 at the place of occurrence
  appeared doubtjiil -· Their conduct in not informing the relatives of
  the deceased and in nor lodging police complaint was also quite
  unnatural - Their statements were recorded after 3 days of
  occurrence - Delay in recording the statement had cast doubt about
  their being eye-witnesses to the occurrence - In view of delay, PW24
E
  and PW25 did not appear to be who11y reliable witnesses - Moreover.
  there was no corroboration of their evidence from any other
  independent source - Therefore, PW24 and PW25 were not reliable
  witnesses so as to record conviction of the accused - The case
  against accused not proved beyond reasonable doubt - Conviction
F set aside.
          Allowing the appeals, the Court
          HELD: 1. PW 24 and PW 25 are residents of Kota which is
    at a distance of about 150 kms. from Jhalawar- town. According
    to PW25, he went to Jhalawar to meet the deceased and on
G
    reaching the factory at 1.00 p.m. they happened to witness the
    occurrence. PW9 and PW19, who on intimation rushed to the
    occurrence place, did not state that they saw PW25 and PW 24 in
    the occurrence place. It was only PW19, the brother of the
    deceased with the help of PW9 and PW20 lifted the injured and
H   put in the Maruti vehicle and took him to Jhalawar hospital, where
                                   284
         SHAHID KHAN        v. STATE OF RAJASTHAN                     285



h·e was declared dead. Thereafter PW19 went to the Police Station      A
and lodged the written complaint. In the said complaint, the names
of the assailants were not mentioned and also the names of the
persons who were present during the .occurrence are not
mentioned. PW25 and PW24 stated in their cross-examination
that they did not help PW9 and PW19 to shift the injnred to the
                                                                       B
hospital and they rushed towards Toll Tax and reached the
hospital in a trnck and on seeing their car, without entering the
hospital, they drove to Kola and they did not inform any one about
the occurrence and they did not also go to the Police Station for
lodging the complaint. The High Court concluded that the
presence of PW25 was established in view of the fact that his          c
Maruti van was used for shifting injured to the hospital. There
was nothing on record to show the Maruti vehicle used for
transporting the deceased to the hospital belonged to PW25.
PW25 and PW24 slipping away unnoticed by the others particularly
after the alleged attack is utterly unbelievable. They did not
                                                                       D
render any help for shifting the injnred to the hospital nor had
ihe courtesy to go inside the hospital to ascertain the condition
and also did not inform the occurrence to the police. The aspect
of fear was without any foundation and was not supported by any
evidence of act or conduct. (Paras 8, 10) [289-H; 290-A-G)
      2. The statements of PW25 and PW24 were recorded after           E
3 days of the occurrence. No explanation was given as to why
they were not examined for 3 days. It is also not known as to how
the police came to know that these witnesses saw the occurrence.
The delay in recording the statements casts a serious doubt about
their being eye-witnesses to the occurrence. It may suggest that       F
the investigating officer was deliberately marking time with a view
to decide abont the shape to be given to the case and the eye-
witnesses to be introduced. The circumstances in this case lend
such significance to this delay. PW25 and PW24, in view of their
unexplained silence and delayed statement to the police, does
not appear to he wholly reliable witnesses. There was no               G
corroboration of their evidence from any other independent
source either. It is, therefore, unsafe to rely upon their evidence
only to uphold the conviction and sentence of the appellants. The
case against the appellants has not been p~oved beyond
 reasonable doubt. [Para 11] [291-B-E]                                 H
286             SUPREME COURT REPORTS                        [2016) 2 S.C.R.



A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1460 of2008
             From the Judgment and Order dated 20.12.2006 of the High Court
      of Judicature for Rajasthan at Jaipur Bench in D. B. Criminal Appeal
      No. I 00 I of2003
 B                                     WITH
            Crl. A. NOS. 1461AND1462 OF 2008
            Sushi I Kr. Jain, Sr. Adv., Vikramjit Banerjee, Rishi Maheshwari,
      Bharat Sood, Bishwanath Chatte1ji, (For Mrs. Shally Bhasin), Abhinav
C     Gupta, Apurv Taran, (For Ms. Pratibha Jain), Advs., with him for the
      Appellant.
            Puneet Parihar, Saurabh Raj pal, (For Mil ind Kumar and Ms. Ruchi
      Kohli), Ad vs. for the Respondent.
            The Judgment of the Court was delivered by
 D
             C. NAGAPPAN, J. I. These three appeals are preferred against
      the judgment dated 20.12.2006, passed by the High Court of Judicature
      for Rajasthan at Jaipur in DB Criminal Appeal No. I 00 I of 2003.
             2. The appellants in DB Criminal Appeal No. I 00 I of 2003 are
      accused nos.2 to 5 in the Sessions case no.31 of 2003 on the file of the
 E    Special Judge, SC/ST(POA), Jhalawar and they were tried with accused
      no.1 foralleged offences under Sections 147, I 48, 302/149 and 397 Indian
      Penal Code. The Sessions Court found accused no. I not guilty of all the
      charges and found accused nos. 2 to 5 not guilty of the charge under
      Section 397. At the same time Sessions Cou1t convicted accused nos.
 F    2 to 5 for the offence under Section I 48 and sentenced them each to
      undergo Simple imprisonment for 2 years with fine of Rs.500 and in
      default    to undergo fu1ther simple imprisonment for one month and
      convicted them under Section 302/149 and sentenced them each to
      undergo life imprisonment with tine of Rs.2000 and in default to undergo
      simple imprisonment for six months.
 G
            3. Aggrieved by this conviction and sentence. accused nos. 2 to 5
      preferred appeal being DB Criminal Appeal No. I 00 I of 2003, before
      the High Cou1t ofRajasthan at Jaipur Bench. During pendency ofappeal,
      appellant/ A3 lrfan Ali died and his appeal abated. The High Court by its
      judgment dated 20.12.2006 dismissed the appeal preferred by the
 H    appellants. Challenging the same accused nos.2, 4 and 5 have preferred
          SHAHID KHAN v. STATE OF RAJASTHAN                                   287
                   [C. NAGAPPAN, J.]

presen! appeals.                                                               A
       4. The prosecution case as it discerned from the records is briefly,
as follows: PW 19 Anil Kumar Jain is the brother of deceased Ashok
Kumar. On 22.1.2001 he submitted Exh. P34 complaint at Police Station
Kotwali Jhalawar stating thatAshok Kumar was looking after the factory
of Kota stones and the contract of royalty of toll tax was obtained by         B
Abdul Khalid in which his brother Ashok Kumar was also a pattner. It
is further stated that Khalid was arrested for committing the murder of
Kallu and Ashok Kumar gave assistance to Khalid. Due to this reason
on 22.1.2001 companions of Kallu came to the factory and murdered
Ashok Kumar. It is further stated therein that as per the information
provided by PW 20 Lal Chand the accused were five in number and                c
they caused injuries to Ashok Kumar with sword and knife. PW 25
Mirza Maj id Beg came from Kota to Jhalawar to meet Ashok Kumar
on the occurrence day, and he and his driver PW 24 Mohamed Shakir
saw ti1e occurrence in which the accused inflicted injuries with weapons
0;1 Ashok Kumar. Due to fear they hid themselves in the factory. PW            D
19 Anil Kumar Jain took injured Ashok Kumar in the Maruti car to hospital
at Jhalawar where he was declared dead. On the written complaint of
PW 19 Anil Kumar Jain a case under Sections 14 7, 148 302/149 and 448
!PC was registered and investigation commenced. PW 17 Dr. Arvind
Kumar Bohra conducted autopsy on the body of Ashok Kumar and
found the following ante-mo1tem injuries:                                      E

       1. Incised wound 2 y, x '/, x bone deep horizontally mid of
       forehead.
       2. Abrasion 3 '/, long in front and over the pinna of left ear.
       3. Stab incised wound 2" X '/," X cavity deep omentum and               F
       fresh blood come out from wound vertically Rt para umbilicus
       region.

       4. Stab incised wound 2" X Yo'' X cavity deep. Vertically oblique
       omenten and fresh blood comes out left para umbilicus part of
       abdomen.                                                                G
       5. Stab incised wound 2" X '/," X cavity deep omentum and fresh
       bleeding present ve1tically left renal region of abdomen.
       6. Stab incised wound 2" X Y,'' X cavity deep oblique 11;· below
       lower costal margin left Hypocondrium of abdomen.
                                                                               H
288              SUPREME COURT REPORTS                         [2016] 2 S.C.R.


A           7. Incised wound 1" X w· x skin deep oblique lat. Aspect of
            middle of left thigh."
            He issued Exh.P21 post-mortem report by expressing opinion that
      the cause of death was hemorrhagic shock as a result of cutting of
      pedicle of spleen omental and mesenteric vessels.
B           5. The investigation officer examined the witnesses, arrested the
      accused and recovered weapons by drawing the necessary memos and
      on completion of the investigation filed the charge-sheet. The Sessions
      Court on framing of charges conducted the trial in which prosecution
      examined 28 witnesses and marked documents and the defence examined
c     2 witnesses on their side. The trial court acquitted accused No.1 of all
      the charges and convicted accused Nos. 2 to 5 as stated supra. On
      appeal the High Court confirmed the conviction and sentence. Aggrieved
      by the same the present appeals have been preferred.
             6. Mr. Sushil Kumar Jain, Senior Advocate appearing for the
D     appellants contended that PW 25 Mirza Majid Beg and his driver PW 24
      Mohamed Shakir who claimed to have witnessed the occurrence are
      chance witnesses whose presence at the place of occurrence is doubtful
      and their conduct in not informing the relatives of the deceased and not
      lodging police complaint is quite unnatural and their statements were
      recorded after 3 days of the occurrence for which there is no explanation
 E    and the prosecution case was conceived and constructed after a good
      deal of deliberation and it is doubtful. It is further contended by him that
      PW 25 Mirza Majid Beg implicated the appellants falsely because his
      son-in-law Khalid was tried for committing the murder of Kallu and in
      the said case the present appellant-Banti gave evidence against him as
 F    prosecutio11 witness, resulting in conviction. It is his further submission
      that the courts below have erroneously believed the uncorroborated
      testimonies of the eye-witnesses and conviction and sentence imposed
      on the appellants are not sustainable in law and liable to be set aside. In
      support of his submission reliance was placed on various decisions of
      this Court.
G
            7. Per contra the learned counsel appearing for the respondent
      contended that the presence of the eye-witnesses at the time of
      occurrence is established and their testimonies have rightly been relied
      upon by the courts below for convicting the appellants and the impugned
      judgment is sustainable.
H
          SHAHID KHAN v. STATE OF RAJASTHAN                                 289
                   [C. NAGAPPAN, J.]

      8. Ashok Kumar died of homicidal violence is evident from the          A
medical evidence adduced in the case. PW 17         Dr. Arvind Kumar
Bohra who conducted post mortem found 4 stab incised wounds in the
abdomen and 2 incised wounds on forehead and left thigh .. Exh.P2 l is
the post-mortem report issued by him in which he has opined that the
cause of death was hemorrhagic shock as a result of cutting of pedicle
                                                                             B
of spleen omental and mesenteric vessels. From the above it is clear
that Ashok Kumar died of injuries sustained in the occurrence.
       9. The prosecution case is that the appellants (Accused Nos.2, 4
and 5) alongwith other accused inflicted injuries with sword and knife to
Ashok Kumar. During the trial PW 20 Lal Chand, PW 24 Mohammad
Shakir and PW 25 Mirza Majid Beg were examined as having witnessed
                                                                             c
the occurrence. PW 20 Lal Chand did not support the prosecution case
and was declared hostile. PW 25 Mirza Majid Beg in his testimony has
stated that on 22.1.2001 he started from Kota at 10 O' clock and reached
Jhalawar at about 12 O'clock in his Maruti Van driven by his driver PW
24 Shakir and halted for 5-10 minutes in the Toll Post arid then went to     D
the factory of Ashok Kumar to meet him and on reaching there they
heard the sound of crying and they got down from the vehicle and ran
inside the factory and saw accused no.2 Banti and accused no.4 Shahid
Khan with daggers in their hand and accused no.5 Mansoor with Gupti
type weapon and all the accused were attacking Ashok Kumar with the
said weapons. According to him he and his driver stood adjacent to the       E
quarter wall inside the factory and saw the occurrence and thereafter
they ran away from the said place to Toll Tax and boarded a tanker lorry
 and reached the hospital at Jhalawar and they found their Maruti vehicle
 parked in the hospital and they drove from there directly to Kota in the
 said vehicle. It is the testimony of PW 24 Mohamed Shakir that on           F
 22.1.2001 he drove the Maruti van of PW 25 Mirza Majid Beg from
 Kota to Jhalawar and when they reached the factory of Ashok. Kumar
 they heard the sound of crying and both of them got down and rushed
 inside the factory and s11w the appellants and other accused attacking
 Ashok Kumar with knife and they ran to the backside of the factory and
 hid themselves near the wall and after 5-10 minutes they came out and       G
 went to the Toll Tax check post and by taking a lift in a truck they
 reached Jhalawar hospital and on seeing their car there, both of them
 drove back to Kota.
      10. Both the above witnesse.s are residents ofKota which is at a
distance of about 150 kms. from Jhalawar town. According to PW 25            H
290              SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A     Mirza Majid Beg he went to Jhalawar to meet Ashok Kumar and on
      reaching the factory at 1.00 p.m. they happened to witness the occurrence.
      It is relevant to point out that PW 9 Anwar and PW 19 Anil Kumar Jain.
      who on intimation rushed to the occurrence place, did not state that they
      saw PW 25 Mirza \1ajid Beg and PW 24 Mohamed Shakir in the
      occurrence place. It is only PW 19 Anil Kumar Jain with the help of
B
      PW 9 Anwar and PW 20 Lal Chand lifted injured Ashok Kumar and put
      in the Maruti vehicle and took him to Jhalawar hospital, where he was
      declared dead. Thereafter PW 19 Anil Kumar Jain went to the Police
      Station and lodged the written complaint. In the said complaint, the names
      of the assailants are not mentioned and also the names of the persons
c     who were present during the occurrence are not mentioned. PW 25
      Mirza Majid Beg and PW 24 Mohamed Shakir have stated in their cross
      examination that they did not help PW 9 Anwar and PW 19 Anil Kumar
      Jain to shift the injured to the hospital and they rushed towards Toll Tax
      and reached the hospital in a truck and on seeing their car, without entering
      the hospital, they drove to Kota and they did not inform any one about
D
      the occurrence and they did not also go to the Police Station for lodging
      the complaint. The High Court in the impugned judgment has concluded
      that the presence of PW 25 Mirza Majid Beg is established in view of
      the fact that his Maruti van was used for shifting injured to the hospital.
      There was nothing on record to show the Maruti vehicle used for
E     transporting Ashok Kumar to the hospital belonged to PW 25 Mirza
      Majid Beg. In fact PW 19 Anil Kumar Jain in his cross examination has
      stated that he did not know the Registration number of the Maruti van in
      which Ashok Kumar was taken to hospital and he also did not know
      whose vehicle it was. In other words, nothing is stood established by the
      use of this Maruti vehicle for transporting to the injured to the hospital
 F
      and in any event this wil I not clinch the presence of PW 25 Mirza Majid
      Beg at the time of occurrence. PW 25 Mirza Majid Beg and PW 24
      Mohamed Shakir slipping away unnoticed by the others particularly after
      the alleged attack is utterly unbelievable. It appears unreal. They are
      not strange to expect and they did not render any help for shifting the
G     injured to the hospital nor had the comtesy to go inside the hospital to
      ascertain the condition and also did not inform the occurrence to the
      police. The aspect offear is without any foundation and is not suppo1ted
      by any evidence of act or conduct. This plea does not impress us. In
      this context, it is relevant to point out that PW 25 Mirza Majid Beg has
      admitted that he is a history-sheeter, and two cases under NDPS Act
H
           SHAHID KHAN          v. STATE OF RAJASTHAN                        291
                         re.   NAGAPPAN, J.l

were imposed on him and he was also bound down under Section 110              A
Cr.P.C.
       11. The statements of PW 25 Mirza Maj id Beg and PW 24
Mohamed Shakir were recorded after 3 days of the occurrence. No
explanation is forthcoming as to why they are not examined for 3 .days.
It is also not known as to how the police came to know that these             B
witnesses saw the occurrence. The delay in recording the statements
casts a serious doubt about their being eye-witnesses to the occurrence.
It may suggest that the investigating officer was deliberately marking
time with a view to decide about the shape to be given to the case and
the eye-witnesses to be introduced. The circumstances in this case lend
such significance to this delay. PW 25 Mirza Majid Beg and PW 24
                                                                              c
Mohamed Shakir, in view of their unexplained silence and delayed
statement to the police, does not appear to us to be wholly reliable
witnesses. There is no corroboration of their evidence from any other
independent source either. We find it rather unsafe to rely upon their
evidence only to uphold the conviction and sentence of the appellants.        D
The High Court has failed to advert to the contentions raised by the
appellants and re-appreciate the evidence thereby resulting in miscarriage
of justice. In our opinion, the case against the appellants has not been
proved beyond reasonable doubt.
       12. Consequently, the appeals are allowed and the conviction           E
and sentence of the appellants is hereby set aside. The appellants are
on bail. Their bail bonds shall stand discharged.
Dcvika Gujral                                             Appeals allowed.


                                                                              F