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2018 Supreme(Raj) 853
IN THE HIGH COURT OF JUDICATURE AT RAJASTHAN BENCH AT JAIPUR
MOHAMMAD RAFIQ, GOVERDHAN BARDHAR, JJ.
Sawai Khan - Appellant
Versus
State of Rajasthan - Respondent
Criminal (Jail) Appeal No. 894 of 2011, Criminal Appeal No. 1125 of 2011
Decided On : 06-07-2018
Rajendra Singh Tanwar, Adv., Sumati Bishnoi, Adv., Vishnu Shankar Badaya, Adv., Rajesh Kandwal, Adv., R.S. Raghav, Adv.
The court held that the prosecution had proved the guilt of the accused-appellants beyond a reasonable doubt based on the eyewitness accounts, identification parades, fingerprints, footprints, and postmortem report.
Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302 IPC - SECTION 307/34 IPC - SECTION 353 IPC - SECTION 3/25 OF THE ARMS ACT - SECTION 27 OF THE ARMS ACT - EVIDENCE - IDENTIFICATION - FOOTPRINTS - FINGERPRINTS - POSTMORTEM REPORT - FSL REPORT - WITNESS STATEMENTS - TEST IDENTIFICATION PARADE - RECOVERY OF WEAPONS - MOTIVE - INTENTION - RIGHT OF PRIVATE DEFENCE - EXCEPTION 4 TO SECTION 300 IPC - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - SECTION 304 PART-I IPC - HABITUAL OFFENDERS - PRIOR CRIMINAL HISTORY - CONSPIRACY - COMMON INTENTION - OVERT ACT - SECTION 34 IPC - ACCOMPLICE LIABILITY - SECTION 34 IPC - SENTENCING - LIFE IMPRISONMENT - FINE - CONCURRENT SENTENCES - FACTUAL MATRIX - LEGAL PROVISIONS - INTERPRETATIONS - COURT'S DECISION - RATIO DECIDENDI - FINAL DECISION
Fact of the Case:
The accused-appellants were convicted for the murder of a police constable, Harish Chandra, and other offences under Sections 302, 307/34, 353 IPC, and Sections 3/25 and 27 of the Arms Act. The prosecution alleged that the accused-appellants were part of a gang that had been involved in a series of robberies and murders. On the night of the incident, the accused-appellants were intercepted by the police while driving a stolen Indica car. They opened fire on the police, killing Harish Chandra. The accused-appellants fled the scene but were later apprehended by the police. The prosecution presented evidence, including eyewitness accounts, identification parades, fingerprints, footprints, and postmortem report, to prove the guilt of the accused-appellants.
Finding of the Court:
The court found that the prosecution had proved the guilt of the accused-appellants beyond a reasonable doubt. The court relied on the eyewitness accounts, identification parades, fingerprints, footprints, and postmortem report to conclude that the accused-appellants were the ones who had opened fire on the police and killed Harish Chandra. The court also found that the accused-appellants were habitual offenders who had been involved in a series of robberies and murders.
Issues: 1. Whether the prosecution had proved the guilt of the accused-appellants beyond a reasonable doubt. 2. Whether the accused-appellants were habitual offenders. 3. Whether the accused-appellants were entitled to the benefit of exception 4 to Section 300 IPC.
Ratio Decidendi: 1. The court held that the prosecution had proved the guilt of the accused-appellants beyond a reasonable doubt based on the eyewitness accounts, identification parades, fingerprints, footprints, and postmortem report. 2. The court found that the accused-appellants were habitual offenders based on their prior criminal history. 3. The court held that the accused-appellants were not entitled to the benefit of exception 4 to Section 300 IPC because they had not acted in the exercise of the right of private defence.
Final Decision: The court dismissed the appeals of the accused-appellants and upheld their convictions and sentences.
MOHAMMAD RAFIQ, J.
1. These two appeals are directed against the common judgment dated 30.07.2011 passed by Additional District and Sessions Judge (Fast Track), Sikar in Sessions Case No.56/2009, whereby and where under, the accused-appellant Sawai Khan has been convicted for offence u/ss.302 IPC and sentenced to life imprisonment with fine of Rs. 5,000, in default whereof to further undergo one year simple imprisonment. He was also convicted for offence u/s.307/34 IPC and sentenced to ten years rigorous imprisonment with fine of Rs. 1,000, in default whereof to further undergo further imprisonment of three months; for offence u/s.353 IPC to undergo two years' simple imprisonment; for offence u/s.3/25 of the Arms Act and sentenced to one year simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo one month's simple imprisonment and also for offence u/s.27 of the Arms Act to undergo three years simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo simple imprisonment of three months. Accused-appellants Vikas @ Khalid and Om Prakash were also convicted for offence u/s.302/34 IPC and sentenced to life imprisonment with fine of Rs. 5,000, in default whereof to further undergo one year simple imprisonment; for offence u/s.307/34 IPC and sentenced to ten years rigorous imprisonment with fine of Rs. 1,000, in default whereof to further undergo further imprisonment of three months and for offence u/s.353 IPC to undergo two years' simple imprisonment. Accused-appellant Vikas @ Khalid was also convicted for offence u/s.3/25 of the Arms Act and sentenced to one year simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo one month's simple imprisonment and also for offence u/s.27 of the Arms Act to undergo three years simple imprisonment with fine of Rs. 1,000, in default whereof to further undergo simple imprisonment of three months. All the sentenced were ordered to run concurrently.
2. Facts giving rise to this appeal are that Mehmood Hasan, Assistant Sub-Inspector submitted a written report to SHO Kotwali, Fatehpur on 26.3.2009 alleging that on 26th March, 2009 at about 8.00 pm, he and Constables Harish Chandra, Kalyan Singh, Sohan Lal and driver Pradeep Kumar were performing the patrolling duties in Government vehicle No. RJ 23 4A 2101. When they reached near Chhatriya Bus Stand of Tehsil Fatehpur, he received a wireless message from Circle Officer, Fatehpur that he tried to stop one silver colour Indica car without number plate in which three persons were sitting, but instead of stopping, the person sitting on the front seat opened fire at him. Circle Officer asked to send a vehicle from the Police Station to stop it. On receiving such message, Mehmood Hasan, ASI along with other members of the patrolling party reached near Do Janti Balaji temple. Thereafter, he received another information on wireless message that said vehicle was now going towards Ratangarh. Mehmood Hasan turned his jeep in that direction. In between, he talked to the Circle Officer as also the SHO of the Police Station, Fatehpur. When their jeep reached near Viramsar on Ratangarh Mod, they received the telephonic message that the said Indica car was now returning back from Ratangarh railway crossing. The vehicle was located near Village Tidiasar, but its driver took the car off the road on 'kachcha' route. Three persons came out of the car and tried to run away. One of accused was caught hold of by the Constable Harish Chandra. He then shouted at another accused named Sawai Khan asking him to open fire. Sawai Khan tried a shot, which hit Harish Chandra, Constable on his thigh. Another accused opened fire at the informant (Mehmood Hasan). Taking advantage of this situation and the darkness, all the three accused ran away in the agricultural fields. He could identify these accused. Informant then stated that he took the Constable Harish to Dhanuka Government Hospital, Fatehpur f
