2009 Supreme(Raj) 2370
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Dalip Singh, K.S.Chaudhari, JJ.
Mohsin @ Munna @ Mushtar @ Mushtaq. - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No.1021 of 2008 with D.B.Criminal Jail Appeal [Defect No.0494 of 2008.
Decided On : 15-10-2009
Advocates:
For the Appellant:Mr.Vinay Pal Yadav, Advocate.
For the State: Mr.J.R. Bijarnia, Public Prosecutor.
Headnote:
CRIMINAL - EVIDENCE ACT, 1872 - SECTION 27 - IDENTIFICATION PARADE - NOT HELD - IDENTIFICATION OF ACCUSED IN COURT - SUFFICIENCY - CIRCUMSTANCES IN WHICH IDENTIFICATION OF ACCUSED IN COURT CAN BE RELIED UPON - FOOTPRINTS - COMPARISON WITH SHOES OF ACCUSED - REPORT OF FORENSIC SCIENCE LABORATORY - ADMISSIBILITY - SECTION 302 IPC - MURDER - CONVICTION - SUSTAINABILITY - SECTION 120B IPC - CONSPIRACY - CHARGE NOT PROVED - CO-ACCUSED ACQUITTED - BENEFIT OF ACQUITTAL - WHETHER ACCUSED ENTITLED TO.
Fact of the Case:
The accused was convicted by the trial court for the offence of murder under Section 302 IPC and sentenced to life imprisonment. The accused was also convicted under Section 302 read with Section 120B IPC for conspiracy to commit murder and sentenced to life imprisonment. The accused appealed against the conviction and sentence.
Finding of the Court:
The court held that the identification of the accused in court was sufficient to prove his guilt. The court relied on the evidence of the eye witnesses who had seen the accused at the scene of crime and had identified him in court. The court also relied on the report of the Forensic Science Laboratory which had compared the footprints found at the scene of crime with the shoes of the accused and had found them to be similar. The court, however, held that the charge of conspiracy under Section 120B IPC was not proved and acquitted the accused of this charge. The court also held that the accused was not entitled to the benefit of the acquittal of the co-accused persons as he had been convicted of murder under Section 302 IPC independently of the charge of conspiracy.
Issues: 1. Whether the identification of the accused in court was sufficient to prove his guilt? 2. Whether the report of the Forensic Science Laboratory comparing the footprints found at the scene of crime with the shoes of the accused was admissible? 3. Whether the charge of conspiracy under Section 120B IPC was proved? 4. Whether the accused was entitled to the benefit of the acquittal of the co-accused persons?
Ratio Decidendi: 1. The identification of the accused in court can be relied upon to prove his guilt if there is sufficient evidence to show that the witnesses had a clear view of the accused at the time of the crime and that they were able to identify him in court without any doubt. 2. The report of the Forensic Science Laboratory comparing the footprints found at the scene of crime with the shoes of the accused is admissible in evidence under Section 27 of the Evidence Act, 1872. 3. The charge of conspiracy under Section 120B IPC is not proved if there is no evidence to show that the accused persons had entered into an agreement to commit the crime. 4. The accused is not entitled to the benefit of the acquittal of the co-accused persons if he has been convicted of the same offence independently of the charge of conspiracy.
Final Decision: The appeal was partly allowed. The conviction and sentence of the accused under Section 302 IPC was upheld. The conviction and sentence of the accused under Section 302 read with Section 120B IPC was set aside.
JUDGMENT
1.
2. Mr. Dalip Singh, J. - This appeal has been preferred by the accused appellant Mohsin @ Munna @ Mushtar @ Mushtaq son of Ahmed Hussain @ Mohammad Hussain who was convicted by the learned Sessions Judge, Tonk in Sessions Case No.63/1998 vide judgment dated 25.01.2001 for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- and for the offence under Section 302 read with Section 120-B I.P.C. wherein also he was sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-; in default of payment of fine to undergo further two months imprisonment. The accused appellant was, however, acquitted by the learned trial court of the offence under Section 177 I.P.C.
2. We have heard learned counsel for the accused appellant and the learned Public Prosecutor for the State and perused the record.
3. The facts, in brief, are that an FIR (Exhibit P-67) came to be registered on 23.07.1998 on the basis of a written report (Exhibit P-1) made by Matin Aadil (PW-1) at Police Station Kotwali, Tonk wherein it was stated that in the morning at about 7:30 AM his brother Javed (deceased) had proceeded to the worksite where the construction work was going on. At about 8:00 AM, the witness PW-1 Matin Aadil also followed him and saw that one Naseeb went towards the site on his motorcycle bearing registration No.RJ-26/M-3097. It was stated that Naseeb was riding the motorcycle and another person who was staying at the house of Mussavir was on the pillion seat and both of them went towards the construction site. It was stated in the FIR that these two persons reached the site before the witness reached. Matin Aadil (PW-1) further stated in the report that when he reached the spot, he saw a person inflicting three blows with a gupti (sharp edged weapon, a knife) on the chest and thereafter jumping over the wall and running away. When he reached the deceased, brother of PW-1 Matin Aadil, the deceased Javed told him that Mohsin (the accused appellant) who was staying at the house of Mussavir had inflicted blows with a gupti and had run away. The deceased (Javed) also told PW-1 Matin Aadil that on the previous day i.e. 22.07.1998 also Naseeb and Mohsin had come to the construction site. PW-1 Matin Aadil further stated in the report that the deceased became unconscious after narrating the aforesaid incident to him and disclosing the name and identity of the deceased. He further stated in the report (Exhibit P-1) that on the construction site PW-18 Jameel Miyan, PW-7 Riyaz Khan and PW-20 Prabhu Lal and other workers were also present who had also witnessed the incident. He further stated in the report that they had taken Javed from the construction site to the hospital where his brother (Javed) was declared dead. In the report he stated that his brother (Javed) had been murdered by Mohsin, Naseeb, Mussavir and others having conspired to murder him.
4. On the aforesaid report, FIR No.296/1998 (Exhibit P-67) came to be registered at the Police Station Kotwali, Tonk on 23.07.1998 at 9:35 AM for the offence under Section 302 and 120-B I.P.C.
5. After recording the aforesaid FIR (Exhibit P-67) for the offence under Section 302 and 120-B I.P.C., the accused appellant came to be arrested on 23.07.1998 itself. The arrest memo is Exhibit P-18. In the meanwhile, the police had visited the site and prepared the site plan (Exhibit P-2). While carrying out the site inspection, the police also recovered the cover of the knife (gupti) from the site which is Exhibit P-3. At the site the police also found footprints near the place of incident and lifted the footprints by plaster cast vide Exhibit P-10. It may be stated here that after the arrest of the accused appellant, the shoes which were worn by the accused appellant were also seized vide Exhibit P-11. The plaster cast and the shoes were sent for comparison to the Forensic Science Laboratory (F.S.L.) and the report of F.S.L. is Exhibit P-73 on recor
Click Here to Read the rest of this document
Back
