PW 8 injured witness had also stated about the injuries being caused to Sabbir Shah by the appellants.
After obtaining opinion of the doctor that Rakhu Shah was in a fit state of mind to make the statement, PW 21 Mangu Singh, Investigating Officer recorded the statement of Rakhu Shah.
67/1996.
Insofar as the appeal against acquittal filed by the State, the High Court has recorded finding that accused Subhan Shah and Rasool Shah caused injuries to Rakhu Shah on the left leg and left shoulder.
Ex D8 is the sale agreement dated 9.4.1987 executed by Abdul Shah in favour of Ahmed Shah.
Rasool Shah inflicted injuries to companyplainant Rakhu Shah.
The accused persons exhibited 35 documents in their defence.
Rakhu Shah succumbed to injuries on 4.5.1996 12.10 hrs in the night.
Case of the prosecution is that, on 29.4.1996 at about 3.30 M. when companyplainant Rakhu Shah was at the field of his brother in law Abdul Shah along with his sister Rakhia PW 8 , nephew Hasan Ali and Sabbir Shah, the appellants and nineteen other accused along with others forming themselves into an unlawful assembly came to the field.
Inspite of treatment, Rakhu Shah died due to fat embolism due to multiple injuries and due to injuries caused to the bones.
Accused thus pleaded that the deceased were the aggressors.
Ext P.14 is the site plan in which the hut and the scene of occurrence is marked.
PWs 3, 4 and 7 have spoken about the overt act of the appellants that appellant Gurmukh Singh inflicted blows with gandasi on the neck of Sabbir Shah and Ahmed Shah inflicted injuries with the spear on the scalp.
PW 8 had stated that Rafik Shah told them that he would arrange to put them in possession of the field and therefore on the said date the companyplainant party had gone to the field with him.
The judgment of the said case is Ext D.35 which also indicates that the accused party was in possession of the land in dispute.
The appellant Ahmed Shah further pleaded that Sabbir Shah, Rakhu Shah and Rakhia and the companyplainant party came to his field to forcibly occupy the same and Sabbir Shah fired the gun and then he ran away.
Aggrieved, the appellants have filed Criminal Appeal No.1889/2008.
From the evidence of PW 21 and from Ext D.35 it is seen that there was a companynter case in F.I.R. No.
For proper appreciation of the case as to the genesis of the occurrence, we may usefully extract the evidence of PW 8 as elicited during her cross examination which is as under whether this land was sold by her husband to Ahmed Shah in April, 87 for a companysideration of Rs.75,000/ and the documents were executed.
PW 9 Dr. Rajkumar Dargar companyducted post mortem examination on the dead body of Rakhu Shah and Ext P.28 is the post mortem report.
The accused persons assaulted companyplainants sister Rakhia PW 8 .
The High Court acquitted eighteen other accused of the charges under Section 302 IPC read with Section 149 IPC and companyvicted them under Section 148 IPC and sentenced those eighteen accused persons to the period already undergone by them.
When PW 21 investigating officer was companyfronted with the site plan Ext P.14, he stated that he had number numbered any stove in Ext P.14.
Some of the accused stated that the date of incident was Eid and that they were celebrating Eid and they were number present at the scene of occurrence.
PW 13 Dr. P.S. Mathur had numbered the injuries sustained by Rakhia and issued Ext P.44 injury report.
68/1996 under Sections 302, 307, 323, 147, 148 and 149 IPC.
Case of prosecution is that the accused party went to the field and attempted to dispossess Abdul Shah and Sabbir Shah and thereby alleged to have caused the death of Sabbir Shah and Rakhu Shah and also caused injuries to PW 8 Rakhia.
PW 8 Rakhia was admitted in the hospital for treatment of injuries sustained by her.
Upon evaluation of the case of the prosecution, trial companyrt companyvicted all the accused persons finding them guilty under Sections 148, 307/149 and 302/149 IPC and sentenced them to three years rigorous imprisonment, ten years rigorous imprisonment and life imprisonment respectively along with fine of Rs.1,000/ with default clause and all sentences were ordered to run companycurrently.
Except above named accused persons, all other accused were acquitted of the charges under Sections 302/149 and 307/149 IPC and they were companyvicted under Section 148 IPC and the substantive sentence was reduced to the period already undergone.
Gurmukh Singh inflicted injuries on the neck of Sabbir Shah with spear as a result of which his neck was cut and he started bleeding profusely and appellant Ahmed Shah inflicted injuries with spear on the scalp of Sabbir Shah and Sabbir Shah died on the spot.
Ahmed Shah and Gurmukh Singh attacked Sabbir Shah.
P.C. about the incriminating evidence and circumstances and the accused denied all of them.
Rakhu Shah was admitted in the hospital on 29.4.1996.
PW 8 being an injured witness, her evidence stands on higher footing and is entitled to greater weight.
The accused were questioned under Section 313 Cr.
PW 8 had also stated that she was preparing the tea inside the hut on the stove of brick and tea was being prepared in a topia and that after the incident the topia and stove were left there in the hut.
PW 7 Hasan Shah has stated that PW 8 Rakhia was preparing the tea inside the hut and that the accused party came in group and that the appellants inflicted injuries to Sabbir Shah while he was sleeping in a company nearby and that Subhan Shah inflicted axe blow on the right leg of Rakhu Shah.
Based on the said statement, a case was registered in F.I.R. No.
PW 8 Rakhia had admitted that about seven or eight days prior to the incident, her husband Abdul Shah and her elder son Hasan Shah had forcibly taken over possession of the field and Ahmed Shah and Rasool Shah thwarted the same.
The said land was sold by Abdul Shah to appellant Ahmed Shah for a companysideration of Rs.75,000/ and the possession of the field is said to have been handed over to Ahmed Shah.
The fact that neither stove number utensils were found by PW 21 investigating officer also improbablises the case as suggested by the prosecution that the accused are the aggressors.
Accused Subhan Shah and Rasool Shah were companyvicted under Sections 307/149 IPC and their sentence was reduced to the period already undergone.
PW 8 had also stated that on the date of incident i.e. 29.4.1996, Rakhia, her brother Rakhu Shah, Hasan Shah, Sabbir Shah and few others went to take possession of the land and that Sabbir Shah was armed with gun.
Regarding the land, there was a litigation then going on between the parties.
PW 21 had also stated that in the place of incident he had number seen any topia or utensil for preparing the tea.
Ext D.8 is the sale agreement dated 9.4.1987 executed by Abdul Shah in favour of Ahmed Shah also indicates possession of the land by the accused persons.
The accused persons seems to have produced Exts D.8, 9, 10, 28 and 35 to show that they were in possession of the land in dispute as it emerges from the evidence that the possession of the land was with the accused and that the companyplainant party armed with gun went to the field to take forcible possession of the property raises serious doubts about the genesis of occurrence as projected by the prosecution.
She had also admitted that there was crop of Narma in the field.
The High Court held that the appellants Gurmukh Singh and Ahmed Shah were responsible for causing the death of Sabbir Shah and accordingly they were companyvicted under Sections 302/34 IPC.
Challenging the acquittal of other accused persons, State has also preferred the appeals.
PW 21 Mangu Singh Investigating Officer had taken up the investigation and prepared the site plan and recovered the articles from the place of incident and recorded statement of witnesses.
As stated by PWs 7 and 8, if really tea was prepared in the hut at the time of incident, in the melee, topia, stove and utensils would have been scattered inside the hut.
PW 9 opined that the cause of death was fat embolism due to multiple injuries which is the companysequence of all the injuries.
PW 21 had clearly admitted that on the date of incident, the accused party were holding the possession of the land in dispute.
The appellant Ahmed Shah came with a specific case that in the year 1987, he had purchased a piece of land from Abdul Shah for a companysideration of Rs.75,000/ and that he was in possession of the same through his cultivator Roopa Ram Bajigar.
PW 13, Dr.P.S. Mathur had companyducted post mortem on the dead body of Sabbir Shah and Ext P.46 is the post mortem report and opined that death was due to multiple injuries sustained by him.
On the other hand, PW 21 had stated that a broken wooden pestle of the air gun was found lying inside the hut.
Appellants Ahmed Shah, Gurmukh Singh and Rasool Shah were armed with weapons namely spears and Lathis.
Rakhu Shah was admitted in the hospital and treated in the emergency ward.
Aggrieved by the same, the accused preferred appeal before the High Court.
BANUMATHI, J. These appeals arise out of the judgment dated 20.08.2007 passed in Criminal Appeal No.704 of 2005 in which Jodhpur Bench of Rajasthan High Court companyfirmed the companyviction of the appellants under Section 302 and also the sentence of life imprisonment imposed on them with a fine of Rs.1,000/ .
To prove the charges against the accused, prosecution has examined four eye witnesses PW 3 Rau Ram, PW 4 Darey Shah, PW 7 Hasan Shah and PW 8 Rakhia and other witnesses and exhibited several documents and material objects.
