Rajasthan High CourtShani @ Niyamat vs State Of Rajasthan Through Pp on 1 February, 2023Bench:Pankaj Bhandari,Anil Kumar UpmanHIGH COURT OF JUDICATURE FOR RAJASTHAN\n                        BENCH AT JAIPUR\n\n\n               D.B. Criminal Appeal No. 437/2017\n\n1.   Kadir @ Kadira S/o Shri Chhote Khan, R/o Patanpole, Kota\nCity, Kota, Rajasthan\n2.    Faraz @ Pintu S/o Shri Fayaz Ahmed, R/o Hiranbazaar\nMakbara, Kota City, Kota, Rajasthan.\n(Both are presently lodged in Central Jail, Kota)\n                                                                ----Appellants\n                                  Versus\nState Of Rajasthan through PP\n                                                               ----RespondentConnected With\n               D.B. Criminal Appeal No. 528/2017\nShani @ Niyamat S/o Liyakat, R/o Adharsheela Basti, Dadabadi,\nKota (At present in Central Jail, Kota)----Appellant\n                                  Versus\nState Of Rajasthan through PP----Respondent\n               D.B. Criminal Appeal No. 2040/2017\nSadakat Ali @ Chhota Sadda S/o                Hameed Ali, R/o Near Bibi\nJohare Ki Masjid, Police Station Makbara, Kota, Rajasthan.\n(At present in Central Jail, Kota)----Appellant\n                                  Versus\nState Of Rajasthan Through P P----Respondent\n\n             D.B. Criminal Appeal (Db) No. 166/2019\n\nGolu @ Muntjeer S/o Chand @ Mohammad Ali, R/o Hiran Bazaar,\nbelow Kazi House, Chandraghata, Police Station Makbara Kota\n(At present in Judicial Custody at Distt Jail Kota)----Appellant\n                                  Versus\nState Of Rajasthan----Respondent(Downloaded on 02/02/2023 at 11:50:09 PM)(2 of 13)                       [CRLA-437/2017]\n\n\nFor Appellant(s)         :     Mr. Suresh Kumar Sahni with\n                               Mr. Ram Mohan Sharma\n                               Mr. M.S. Solanki\n                               Mr. Buddhi Prakash Meena for\n                               Mr. Shafiqur Rahman\n                               Mr. Abdul Kalam Khan with\n                               Mr. N.P. Meena, Ms. Ankita Saini\n                               Mr. Ravi Kumar Kasliwal\nFor State                :     Mr. Javed Choudhary, AGA\nFor Complainant                Mr. Mirza Ishrat Beg\n\n\n            HON'BLE MR. JUSTICE PANKAJ BHANDARI\n         HON'BLE MR. JUSTICE ANIL KUMAR UPMAN\n                                Judgment\nOrder reserved on              ::                               25/01/2023\nOrder pronounced on            ::                               01/02/2023\n\nBy the Court (Per Hon'ble Pankaj Bhandari)1.          Appellants-Kadir @ Kadira and Faraz @ Pintu have filed\n\nCriminal Appeal No.437/2017 against the impugned judgment\n\ndated 21.01.2017 passed by Addl. Sessions Judge (Women\n\nAtrocities Cases) No.1, Kota in Sessions Case No.128/2016,\n\nwhereby the accused appellants were convicted for offence under\n\nSections 302 read with 34IPC, 307 read with 34IPCand 3/25 ofArms Actand acquitted from the offence underSection 148IPC.\n\nFor offence under Section 302 read with 34IPC, they have been\n\nsentenced to undergo life imprisonment till the extinction of\n\nbiological life and fine of Rs.10,000/- and in default for non-\n\npayment of fine, to further undergo sentence of one year simple\n\nimprisonment. For offence under Section 307 read with 34IPC,\n\nthey have been sentenced to seven years rigorous imprisonment\n\nand fine of Rs.10,000/- and in default for non-payment of fine, to(Downloaded on 02/02/2023 at 11:50:09 PM)(3 of 13)                       [CRLA-437/2017]\n\n\n\nfurther undergo one year additional simple imprisonment. For\n\noffence underSection 3/25of Arms Act, they have been\n\nsentenced for three years simple imprisonment and fine of\n\nRs.1,000/- and in default for non-payment of fine, to further\n\nundergo one month simple imprisonment.2.         Appellant-Shani @ Niyamat has preferred Criminal\n\nAppeal No.528/2017 against the judgment of conviction and\n\nsentenced dated 21.01.2017 passed by Addl. Sessions Judge\n\n(Women     Atrocities   Cases)        No.1,       Kota      in   Sessions   Case\n\nNo.128/2016, whereby he has been convicted for offence underSections 302,307IPC and 3/25 ofArms Actand acquitted for the\n\noffence underSection 148IPC. For offence underSection 302IPC,\n\nhe has been sentenced for life imprisonment till death and fine of\n\nRs.10,000/- and in default of fine, to further undergo sentence of\n\none year simple imprisonment. For offence underSection 307IPC,\n\nhe has been sentenced for seven years rigorous imprisonment and\n\nfine of Rs.10,000/- and in default of fine, to further undergo, one\n\nyear simple imprisonment. For offence underSection 3/25of Arms\n\nAct, he has been sentenced for three years simple imprisonment\n\nand fine of Rs.1,000/- and in default of fine, to further undergo,\n\none month simple imprisonment. All the sentences of accused\n\nappellant shall run concurrently.3.         Accused appellant-Sadakat Ali @ Chhota Sadda filed\n\ncirminal appeal No.2040/2017 against the judgment and Order\n\ndated 02.11.2017 passed by Addl. Sessions Judge (Women\n\nAtrocities Cases) No.1, Kota in Sessions Case No.128/2016,\n\nwhereby he has been convicted for offence under Sections 148,\n\n302 read with 149IPC, 307 read with 149IPC. For offence under(Downloaded on 02/02/2023 at 11:50:09 PM)(4 of 13)                     [CRLA-437/2017]Section 148IPC, he has been sentenced for three years rigorous\n\nimprisonment and fine of Rs.500/- and in default of payment of\n\nfine, to further undergo 15 days additional rigorous imprisonment.\n\nFor offence under Section 302 read with 149IPC, he has been\n\nsentenced for life imprisonment and fine of Rs.10,000/- and in\n\ndefault of fine, to further undergo one year additional simple\n\nimprisonment. For offence under Section 307 read with 149IPC,\n\nhe has been sentenced for seven years rigorous imprisonment and\n\nfine of Rs.10,000/- and in default of fine, to further undergo, one\n\nyear rigorous imprisonment. Al the sentences of accused appellant\n\nshall run concurrently.4.         Accused     appellant-Golu           @    Muntjeer    filed   Criminal\n\nAppeal No.166/2019 against the judgment and order dated\n\n02.05.2019 passed by Addl. Sessions Judge (Women Atrocities\n\nCases) No.1, Kota in Session Case No.128/2016, whereby the\n\naccused-appellant has been convicted for offence underSections\n\n148,302/149,307/149of IPC. For offence underSection 148IPC,\n\nhe has been sentenced for three years rigorous imprisonment and\n\nfine of Rs.500/- and in default of fine, to further undergo, fifteen\n\ndays simple imprisonment. For offence underSection 302/149IPC, he has been sentenced for life imprisonment and fine of\n\nRs.10,000/- and in default of fine, to further undergo one year\n\nsimple imprisonment. For offence underSection 307/149IPC, he\n\nhas been sentenced for seven years rigorous imprisonment and\n\nfine of Rs.10,000/- and in default of fine, to further undergo one\n\nyear simple imprisonment. Al the sentences of accused appellant\n\nshall run concurrently.(Downloaded on 02/02/2023 at 11:50:09 PM)(5 of 13)                    [CRLA-437/2017]5.         Succintly stated the facts of this case are that Saleem\n\n(PW-1) gave a parchabayan (Ex.P-1) when he was admitted in\n\nemergency ward in M.B.S. Hospital, Kota on 01.04.2011 at 10:45\n\npm, on the basis of which, FIR No.70/2011 was registered at\n\n11:30 pm at Police Station Kotwali, Kota. Saleem in the\n\nparchabayan mentioned that he alongwith his friend Kafil and\n\nAfroz were returning after taking food from Gumanpura on\n\nmotorcycle of Afroz. Afroz was riding the motorcycle, Saleem was\n\nsitting in the middle and Kafil was sitting on the back. It is also\n\nmentioned that at around 9:45 pm, when they reached near the\n\nshop of "Foota Court", then from the back, one motorcycle came,\n\non which three persons were sitting. Shani was sitting on the back\n\nand there were two other persons. After the motorcycle came near\n\nhis motorcycle, Shani with intention to kill, opened 2-3 fires upon\n\nthem, out of which, one bullet hit his left shoulder and another\n\nbullet hit Kafil. After receiving the bullets, all three fell down on\n\nthe ground and those three persons ran away on motorcycle\n\ntowards subjimandi and his friend Afroz also went from there,\n\nafter taking his motorcycle. In the parchabayan, it is also\n\nmentioned that he brought Kafil in an auto to M.B.S. Hospital,\n\nKota. Kafil died due to gun shot injuries. It is also mentioned that\n\nthere was an old enmity between Kafil and Shani, due to which\n\nthe occurrence took place.6.         Police on the basis of this parchabayan, registered the\n\ncase against the accused persons underSection 302,307and34IPC. After investigation, police filed charge-sheet against five\n\naccused persons. Out of these five persons, two persons namely,\n\nGolu @ Muntazir and Sadakat absconded during trial and Kadir @(Downloaded on 02/02/2023 at 11:50:09 PM)(6 of 13)                           [CRLA-437/2017]\n\n\n\nKadira, Faraz @ Pintu and Shani @ Niyamat faced trial. Learned\n\nTrial Court framed charges against the accused persons. The\n\naccused    denied   the    charges        and     sought        trial.     Prosecution\n\nexamined 27 witnesses and exhibited 40 documents. Accused\n\nappellants were examined underSection 313Cr.P.C., though they\n\ndenied allegations. In defence, documents Ex.D-1 to D-3 were\n\nexhibited. Aggrieved by which, the present appeals have been\n\nfiled.7.         It is contended by counsel for the appellants-Kadir @\n\nKadira, Faraz @ Pintu, Sadakat Ali @ Chhota and Golu @ Muntjeer\n\nthat they were not named in the FIR. No test identification parade\n\nwas got conducted by Saleem (PW-1) to implicate the present\n\nappellants. It is also contended that the case of the prosecution\n\nrests on the statement of PW-1(Saleem) and PW-3 (Said Khan).\n\nPW-1(Saleem)    has       in   his     evidence       deposed        akin      to   the\n\nparchabayan. With regard to PW-3 (Said Khan), it is contended\n\nthat the presence of Said Khan at the place of occurrence is\n\ndoubtful. Said Khan has tried to falsely implicate appellants-\n\nSadakat and Golu by stating before the Court that there was yet\n\nanother motorcycle which was following the motorcycle on which\n\nSaleem, Afroz and Kafil were riding. It is further contended that\n\nSaid Khan is a resident of Bhawanimandi which is at a distance of\n\n115 kms. from the place of occurrence. As per his version, he\n\nlifted the deceased and put him in an auto, as deceased had\n\nsustained gun shot injuries. Said Khan's clothes were also stained\n\nby blood but the same was not recovered by the investigating\n\nofficer.(Downloaded on 02/02/2023 at 11:50:09 PM)(7 of 13)                         [CRLA-437/2017]8.          It is also contended that Said Khan has stated in his\n\ncross-examination    that     after     the     incident,       he   returned    to\n\nBhawanimandi and after reading about the incident in the\n\nnewspaper, he returned to inform the police. He has stated that\n\nafter he read the newspaper, he received a call from Akhtar Ali\n\n(PW-5) and Akhtar Ali informed him that police is looking for him.\n\nIn his cross-examination, he has stated that he has known Akhtar\n\nAli for last 5-6 months. He did not know him but can recognise\n\nhim. He also stated that Akhtar Ali was not knowing him.\n\nThereafter, he stated that he knew Akhtar Ali both by name and\n\nalso recognised him. However, he has stated that he does not\n\nknow as to whether Akhtar Ali was a resident of Kota. In his cross-\n\nexamination, he has admitted that Akhtar Ali was not knowing his\n\nname and address. The witness has stated that he is not sure\n\nfrom whom he purchased the fruits on the date of the incident. He\n\nalso did not inform any fruit merchant about the incident. He has\n\nalso stated that he did not inform any police station about the\n\nincident.9.          It is further contended that Said Khan (PW-3) witness\n\nis totally an unreliable witness. He has stated that Akhtar Ali\n\ninformed him on phone that police is calling him, whereas, Akhtar\n\nAli has not stated so in his evidence and Akhtar Ali has been\n\ndeclared hostile by the prosecution. It is contended that the\n\nwitness in his cross-examination has stated that he does not know\n\nAfroz and Afroz also does not know him. However, in his\n\nexamination-in-chief, he has stated that Akhtar and Afroz told him\n\nabout the name of the person who has sustained gunshot injuries.\n\nIt is also contended that this witness has stated that he comes to(Downloaded on 02/02/2023 at 11:50:10 PM)(8 of 13)                          [CRLA-437/2017]\n\n\n\nKota every day at 5-5:30 pm and after purchasing fruits, returns\n\nin the morning at around 05:15 am. He has also stated that on\n\nthe date of the incident, he talked to his wife at 09:15 pm on his\n\nneighbour's phone. He has further stated that he does not\n\nremember the name of his neighbour. Thus, PW-3 (Said Khan) is\n\ntotally unreliable and has been planted by the prosecution to\n\nimplicate accused-Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @\n\nChhota Sadda and Golu @ Muntjeer.10.           Counsel for the accused-appellants have placed reliance\n\nonKanan and Ors. Vs. State of Kerala(1979) 3 SCC 319,\n\nwherein it was held that on failure to conduct test identification\n\nparade   in    respect   of    accused        unknown             to   the   witnesses,\n\nidentification by such witness of the accused in Court was\n\nconsidered doubtful and his testimony must be excluded.Reliance\n\nis also placed on Bhagwati and Ors. Vs. State of Rajasthan\n\n(D.B. Criminal Appeal No.1174/2017) decided by Rajasthan High\n\nCourt on 04.01.2023, wherein it was held that there are\n\nindependent witnesses available and police does not make any\n\nserious attempt to join independent and respectable inhabitants,\n\nthe panch witness are not reliable.11.           It is contended by counsel for Shani @ Niyamat that\n\nPW-1 (Saleem) is the solitary witness in this case who is not\n\ntrustworthy and on evidence of the solitary witness, appellant-\n\nShani cannot be convicted. It is also contended that the learned\n\nCourt below has gone beyond the scope ofSection 302IPC and\n\nhas sentenced appellant-Shani with life imprisonment till death,\n\nwhich sentence is unknown sentence to theIPC.(Downloaded on 02/02/2023 at 11:50:10 PM)(9 of 13)                    [CRLA-437/2017]12.       Learned counsel for the complainant and counsel for\n\nthe State have opposed these appeals. It is contended by counsel\n\nfor the complainant that Saleem is a trustworthy witness as he\n\nhimself has sustained gunshot injury. His presence at the place of\n\noccurrence thus cannot be doubted. It is also contended that\n\nimmediately after the incident, his parchabayan was recorded at\n\n09:45 pm, wherein he had mentioned that Shani had opened fire.\n\nIt is further contended that the fire arm was recovered from\n\nShani. There is report of ballistic expert which goes to show that\n\nthe bullets which were recovered from the body of the deceased\n\nwere the same which was fired from the firearm recovered from\n\nShani. Our attention in this regard is drawn to Ex.P-21.13.       We have considered the contentions and have carefully\n\nperused the evidence on record.14.       PW-5 (Akhtar Ali) whose presence was shown at the\n\nplace of occurrence, has clearly stated that he has not seen any\n\nincident. Afroz (PW-2) has stated that he alongwith Kafil and\n\nSaleem were going on a motorcycle and at that time, a motorcycle\n\nwith three persons followed their motorcycle, on which Kafil told\n\nhim to speed up. He has stated that he heard three fire shots and\n\nthereafter, they fell from the motorcycle. He has also stated that\n\nhe has not seen the persons who has opened fire. Afroz has been\n\ndeclared hostile by the prosecution. Admittedly, as per the\n\narguments advanced by both sides, the case rests on evidence of\n\nonly two witnesses i.e. PW-1(Saleem)and PW-3(Said Khan). PW-1\n\n(Saleem) is the one who himself has sustained gunshot injuries.\n\nHis parchabayan was recorded immediately after the incident, in\n\nwhich he named Shani as the person who had opened fire. As to(Downloaded on 02/02/2023 at 11:50:10 PM)(10 of 13)                    [CRLA-437/2017]\n\n\n\nwho were the other persons, he was not aware. No test\n\nidentification parade was got conducted to ascertain the persons\n\nwho were on the motorcycle with Shani. The case against Shani is\n\nproved by the evidence of Saleem (PW-1). It is further established\n\nfrom the recovery of fire arm at the instance of Shani that the\n\nbullets which were recovered were fired from fire arm recovered\n\nfrom Shani. On examination of the barrel residue, it is indicated\n\nthat the country made pistol had been fired. Thus, it was\n\nestablished that Shani from whom the firearm was recovered and\n\nwhose name appears in the parchabayan recorded immediately\n\nafter the incident and whose name also appears in the statement\n\ngiven by Saleem before the Court is the person who opened fire.\n\nThus, the learned Trial Court has rightly convicted Shani for the\n\nalleged incident underSections 302&307of IPC.15.        As far as conviction of other appellants is concerned,\n\nSaleem(PW-1) has not given any description of the persons who\n\nwere riding on the motorcycle with Shani and has not named\n\nthem. The investigating Officer has not made any attempt to hold\n\nany test identification parade for the same. Thus, from the\n\nstatement of Saleem, the offence is made out only against Shani.\n\nThe other evidence on which reliance has been placed by learned\n\nTrial Court for convicting all the appellants is the statement of Said\n\nKhan (PW-3). Saleem has stated in his cross-examination that\n\nbehind their motorcycle, there is only one motorcycle and there\n\nwas not any other motorcycle. In light of the clear statement\n\nmade by Saleem, we now have to appreciate the evidence of Said\n\nKhan (PW-3) who is the resident of Bhawanimandi which is at a\n\ndistance of 115 kms from the place of occurrence. As per his(Downloaded on 02/02/2023 at 11:50:10 PM)(11 of 13)                    [CRLA-437/2017]\n\n\n\nversion, he goes to Kota every day at 5-5:30 in the evening and\n\nreturns back on the next day morning at 5-5:30. He has stated\n\nthat he had purchased fruits and was going towards the Railway\n\nStation. He has also named the accused who were sitting on the\n\nfirst motorcycle and second motorcycle. As per his version, he\n\nwitnessed the incident and left for Bhawanimandi on the same day\n\nand came to know about the demise of the deceased by reading\n\nnewspaper on the next day. He has further stated that after he\n\nread the newspaper, he received a call from Akhtar Ali (PW-5) that\n\npolice is looking for him. Admittedly, this witness has stated that\n\nhe was not knowing Akhtar Ali. He has clearly stated that Akhtar\n\nand Afroz did not know his name and address. As to how Akhtar\n\nknew his mobile number is not revealed by him in his evidence. As\n\nto how police came to know that he was a witness of the incident,\n\nis also not revealed from the evidence on record. If the testimony\n\nof this witness is considered to be correct, it is his version that he\n\nput the deceased in an auto and his clothes got stained with\n\nblood. As to why they were not recovered by the police, even\n\nthough they would have been a material piece of evidence\n\nestablishing his presence at the place of occurrence is not clear.\n\nFrom perusal of the testimony of this witness, it is evident that he\n\nis not even knowing the name of his neighbour on whose phone\n\nhe called his wife at 9:30 pm on the same day. His call details\n\nhave also not been produced to establish that he was present at\n\nKota at the time of occurrence. It is also evident that his\n\nstatement underSection 161Cr.P.C. was recorded after two days\n\nof the incident. Thus, his presence at the place of occurrence is\n\nnot established. The learned Trial Court has erred in convicting the(Downloaded on 02/02/2023 at 11:50:10 PM)(12 of 13)                    [CRLA-437/2017]\n\n\n\naccused appellants- Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @\n\nChhota Sadda and Golu @ Muntjeer on the basis of statement of\n\nSaid Khan (PW-3). We, therefore, deem it proper to allow the\n\nappeal filed by   Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @\n\nChhota Sadda and Golu @ Muntjeer.16.       However, the judgment of conviction dated 21.01.2017\n\nof Shani @ Niyamat underSections 302,307IPC and underSection 3/25of Arms Act is upheld. As far as sentence awarded to\n\nShani @ Niyamat underSection 302IPC is concerned, the learned\n\nTrial Court has gone beyond the scope ofSection 302IPC in\n\nawarding the life imprisonment till death. We, therefore, partly\n\nallow Criminal Appeal No.528/2017 filed by Shani @ Niyamat to\n\nthe extent of sentence. Accused- Shani @ Niyamat is now\n\nawarded life imprisonment in place of life imprisonment till death.\n\nThe fine as imposed by the Court below for the offence underSection 302,307of IPC andSection 3/25of Arms Act is\n\nmaintained.17.       Accordingly, Criminal Appeal No.437/2017, Criminal\n\nAppeal No.2040/2017 and Criminal Appeal No.166/2019 are\n\nallowed and Criminal Appeal No.528/2017 is partly allowed and\n\nthe impugned judgment of conviction and order of sentence dated\n\n21.01.2017 qua the accused appellant-Kadir @ Kadira and Faraz\n\n@ Pintu, judgment dated 02.05.2019 and judgment dated\n\n02.11.2017 are hereby quashed and set aside.18.       Accused-Golu @ Muntjeer is on bail. The bail bonds\n\nearlier submitted by Golu @ Muntjeer are hereby cancelled.\n\nAppellant-Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali @ Chhota\n\nSadda be released forthwith if not wanted in any other case.(Downloaded on 02/02/2023 at 11:50:10 PM)(13 of 13)                    [CRLA-437/2017]19.          Appellants- Kadir @ Kadira, Faraz @ Pintu, Sadakat Ali\n\n                                   @ Chhota Sadda and Golu @ Muntjeer are directed to furnish\n\n                                   personal bond in the sum of Rs.50,000/- and a surety bond in the\n\n                                   like amount in accordance withSection 437-Aof Cr.P.C. before the\n\n                                   Registrar (Judicial) within two weeks from the date of release to\n\n                                   the effect that in the event of filing of Special Leave Petition\n\n                                   against this judgment or on grant of leave, the appellant on\n\n                                   receipt of notice thereof, shall appear before the Hon'ble Apex\n\n                                   Court. The bail bond will be effective for a period of six months.(ANIL KUMAR UPMAN),J                                    (PANKAJ BHANDARI),J\n                                   CHANDAN /51-54(Downloaded on 02/02/2023 at 11:50:10 PM)Powered by TCPDF (www.tcpdf.org)