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2019 Supreme(Raj) 3039
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
SABINA, GOVERDHAN BARDHAR, JJ.
Javed and Ors. - Appellants
Versus
State of Rajasthan and Ors. - Respondents
D.B. Criminal Appeal Nos. 1036, 109 of 2017, D.B. Criminal Leave To Appeal No. 174 of 2017 and D.B. Criminal Appeal No. 702 of 2017
Decided On : 05-11-2019
For the Appellant : Shyam Bihari Gautam and Sushil Pujari.
For the Respondents: Rekha Madnani, S.S. Hasan and Meenu Verma.
Point of law:
their presence at the spot was natural as they were residing near the place of incident. The possibility that the said accused might have been falsely involved in the case with a view to over-implicate the accused in the facts and circumstances of the present case, cannot be ruled out.
Headnote:
Indian Penal Code, 1860 - Sections 147, 148, 149, 323, 324, 307 and 302 – Offence of Murder - Conviction and Acquittal – Challenged - Testimony of prosecution witnesses - Cause of death of the deceased was due to hemorrhage from heart - Possibility that the said accused might have been falsely involved in the case with a view to over-implicate the accused in the facts and circumstances of the present case, cannot be ruled out. The said accused were unarmed at the incident.
Facts of the case:
Appeals challenging their conviction and sentence as ordered by the trial court, whereas, State as well as the complainant have filed leave to appeal/appeal respectively challenging the acquittal of some of the accused by the trial court and acquittal of accused Ramzani @ Kana under Section 302 IPC.
Finding of the court : it would be just and expedient to reduce the sentence of accused Ramzani @ Kana under Section 323 IPC from one year simple imprisonment to the period already undergone by him. Consequently, the conviction of accused appellant Ramzani @ Kana under Section 341 and 323 IPC is maintained. However, sentence qua imprisonment of accused Ramzani @ Kana under Section 323 IPC is reduced to the period already undergone by him and his sentence qua fine under Section 323 IPC is maintained. His sentence under Section 341 IPC is maintained.
Result: Appeal disposed of
JUDGMENT :
1. Vide this order, above mentioned appeals/leave to appeal shall be disposed of.
2. Accused Javed, Nafis, Anish @ Koli, Arif Miyan, Aamad @ Janwar, Ramzani @ Kana, Shakeer @ Takla had faced trial in FIR No. 99 dated 18.3.2012 registered at Police Station Kotwali, Tonk under Sections 147, 148, 149, 323, 324, 307 and 302 of Indian Penal Code, 1860.
3. The trial court vide judgment/order dated 23.12.2016 ordered the conviction and sentence of accused Javed and Anish @ Koli under Sections 341, 302 IPC and 4/25 of Arms Act, 1959. Accused Ramzani @ Kana was convicted and sentenced for offences under Sections 341 and 323 IPC. Accused Nafis, Arif Miyan, Aamad @ Janwar and Shakeer @ Takla were acquitted of the charges framed against them. Hence, accused Javed, Anish @ Koli and Ramzani @ Kana have filed appeals challenging their conviction and sentence as ordered by the trial court, whereas, State as well as the complainant have filed leave to appeal/appeal respectively challenging the acquittal of some of the accused by the trial court and acquittal of accused Ramzani @ Kana under Section 302 IPC.
4. The prosecution story, in brief, as per the FIR is that on 18.3.2012 at about 8:30 PM, Nadir @ Imamuddin were standing in front of the shop of Hamid. At that time, Javed, Ahmed, Anish and Sharif, were gambling in front of the shop of the complainant. The complainant stopped them from doing so. Due to this reason, Hanif @ Karan, Shahid and Arif Miyan armed with swords and knives attacked the brother of the complainant with an intention to kill him. When Nadir (brother of the complainant) intervened, he was attacked by Ramzani @ Kana, Aamad, Anish, Nafis with sharp edged weapons. All the accused inflicted injuries to both the brothers of the complainant with an intention to kill them. Father of the complainant tried to intervene to save his sons but he was also attacked by the accused and father of the complainant also suffered injuries. On an alarm raised by the father of the complainant, Samiuddin @ Dabbu (brother of the complainant), Ahmed, Gullu, Rajjak, Farid and other persons tried to save them. Injured were removed to the hospital for treatment. Both the brothers of the complainant succumbed to their injuries in the hospital.
5. After completion of investigation and necessary formalities, challan was presented against the accused Javed, Nafis, Anish @ Koli, Arif Miyan, Aamad @ Janwar, Ramzani @ Kana, Shakeer @ Takla.
6. Charges were framed against the accused under Sections 148, 302 or 302/149, 323 and 341 IPC. Charges were also framed under Section 4/25 of the Arms Act against the accused Javed and Anish @ Koli.
7. Accused did not plead guilty to the charges framed against them and claimed trial.
8. In order to prove its case, prosecution examined seventeen witnesses during trial.
9. Accused when examined under Section 313 Cr.P.C., prayed that they were innocent and had been falsely involved in this case. It was pleaded by accused Javed that prior to the incident, Samiuddin @ Dabbu brother of the deceased was standing in front of his house and abused Anish @ Koli under the influence of liquor. Accused Javed stopped Samiuddin @ Dabbu from doing so and due to this reason Samiuddin @ Dabbu went home after threatening them and came to the spot alongwith his brothers, father, Nasir, Tahir Akhtar, Gullu and 16/17 other persons armed with swords and knives. He went home and at that time Barat of his brother-in-law was leaving the house. Samiuddin @ Dabbu and others entered their house after breaking the articles lying outside. Deceased had suffered injuries as they had fallen on the pegs supporting electricity poles.
10. Accused examined two witnesses in their defence.
11. Learned counsel for the accused Javed, Anish @ Koli and Ramzani @ Kana has submitted that the said accused were also liable to be acquitted of the charges framed against them as the complainant party had come to the spot armed with weapons. Accused Javed had also suffere
