Suleman and others Vs. State of Rajasthan
EmailAppeal: Criminal Appeal No.207 of 1984
WITH
Criminal Appeal No.424 of 1984
WITH
Criminal Appeal No.424 of 1984
Petitioner: Suleman and others
Respondent: State of Rajasthan
Apeal: Criminal Appeal No.207 of 1984
WITH
Criminal Appeal No.424 of 1984
WITH
Criminal Appeal No.424 of 1984
Judges: K. JAYACHANDRA REDDY & G.N. RAY, JJ.
Date of Judgment: Jan 13, 1994
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 149 – Alleged firing by accused – Injured witnesses turn hostile – High Court observing that evidence of non injured witnesses was exaggerated as regards supply of cartridges by the two accused but it proceeded to convict them by applying section 149 merely because their presence was spoken to by these witnesses – Held that by itself, it may not be a ground to rope them in since the case is the same as against the other eight accused against whom it was withdrawn.
Sections 307/149 and 302/149 – Alleged firing by accused – Injured witnesses turn hostile – Neither weapons recovered nor there is evidence as to the presence of cartridges – Held that when once a charge under Section 307/149 is held not proved, then the question of applying Sections 302/149 on the basis of their presence is highly unsafe – Appeals allowed.
JUDGEMENT:
O R D E R
1. Heard learned counsel for the parties.
2. These two appeals arise out of the same judgment of the Allahabad High Court. Suleman, Kamal Khan and Rehman are the appellants in the first appeal and Mallas and Jom Khan are the appellants in the other appeal i.e. Appeal No.424 of 1984. These five appellants, alongwith Fauju, Nasim Khan and several others numbering 15 were tried for offences punishable under Sections 302/149, 307/149 IPC. Fauju & Nasim Khan were also tried under Secs.148 & 302 IPC. The prosecution case is that there was a bitter enmity between the group belonging to Fauju and Iliyas and their family members and associates. There were a number of incidents earlier. On the day of occurrence, i.e. 7.3.78, these accused formed into an unlawful assembly and attacked the other group. Fauju said to have shot at Iliyas. Nasib Khan shot at Sedu, who fell down and died. Iliyas and Sedu are the two deceased persons in these appeals. Further case of prosecution is that Suleman and Jom Khan were also armed with fire arms which they used as a result of which PWs 2, 3 and 4 received injuries. For the said offences, the accused were also punished under Sections 307, 307/149 IPC. Before the trial court, the Asst. Public Prosecutor withdrew cases against eight accused. The remaining seven accused faced the trial. The trial court convicted Fauju and Nasib Khan under Section 302 and 148 IPC Simplicitor whereas the remaining five were convicted under Section 302, 302/149 and 147 IPC. Since the injured witnesses turned hostile, the charges under Sections 307, 307/149 were not held proved. Two separate special leave petitions were filed and the same were dismissed as against Fauju and Nasib Khan.
3. The High Court relied on the evidence of PWs 14, 15, 16 and 17 who are not injured witnesses. We have gone through their evidence. So far as overt acts in respect of Suleman and Jom Khan are concerned, their evidences is to the effect as if Suleman and Jom Khan fired at the witnesses, while Kamal and Mallas supplied cartridges. So far as Rehman is concerned, no overt acts has been attributed. Under the circumstances, the question is whether all these five appellants in these two appeals can be roped in by application of Section 149 IPC. The High Court itself has pointed out in the course of judgment that the prosecution evidence as given by PWs 14 to 17 that Mallas and Kamal were supplying cartridges is somewhat exaggerated. Having made such an observation, yet the High Court proceeded to convict them also by applying Section 149 IPC merely because their presence was spoken to by these witnesses, we think by itself, may not be a ground to rope them in since the case is the same as against the other eight accused against whom it was withdrawn. Now, coming to Rehman. No overt acts have been attributed against him. Therefore, his case falls in the same category. Then we are left with Suleman and Jom Khan. No doubt, the witnesses – PWs 14 to 17 have deposed that they fired at the witnesses. But as mentioned above, these witnesses who were alleged to have received injuries did not attribute any overt acts to them and they were treated hostile. Further, no weapons were recovered from these accused nor there is any substantial evidence which shows the presence of cartridges. On the other hand, the High Court observed the prosecution case against Mallas and Kamal is an exaggerated version. Suleman and Jom Khan are alleged to have fired the guns by using cartridges supplied by these two accused and the injured witnesses themselves do not say anything against these accused and when once a charge under Section 307/149 IPC is held not proved, then the question of applying Sections 302/149 IPC on the basis of their presence is highly unsafe. In the result, both the appeals are allowed. If the appellants are on bail, they need not surrender. Their bail bonds stand cancelled.
1. Heard learned counsel for the parties.
2. These two appeals arise out of the same judgment of the Allahabad High Court. Suleman, Kamal Khan and Rehman are the appellants in the first appeal and Mallas and Jom Khan are the appellants in the other appeal i.e. Appeal No.424 of 1984. These five appellants, alongwith Fauju, Nasim Khan and several others numbering 15 were tried for offences punishable under Sections 302/149, 307/149 IPC. Fauju & Nasim Khan were also tried under Secs.148 & 302 IPC. The prosecution case is that there was a bitter enmity between the group belonging to Fauju and Iliyas and their family members and associates. There were a number of incidents earlier. On the day of occurrence, i.e. 7.3.78, these accused formed into an unlawful assembly and attacked the other group. Fauju said to have shot at Iliyas. Nasib Khan shot at Sedu, who fell down and died. Iliyas and Sedu are the two deceased persons in these appeals. Further case of prosecution is that Suleman and Jom Khan were also armed with fire arms which they used as a result of which PWs 2, 3 and 4 received injuries. For the said offences, the accused were also punished under Sections 307, 307/149 IPC. Before the trial court, the Asst. Public Prosecutor withdrew cases against eight accused. The remaining seven accused faced the trial. The trial court convicted Fauju and Nasib Khan under Section 302 and 148 IPC Simplicitor whereas the remaining five were convicted under Section 302, 302/149 and 147 IPC. Since the injured witnesses turned hostile, the charges under Sections 307, 307/149 were not held proved. Two separate special leave petitions were filed and the same were dismissed as against Fauju and Nasib Khan.
3. The High Court relied on the evidence of PWs 14, 15, 16 and 17 who are not injured witnesses. We have gone through their evidence. So far as overt acts in respect of Suleman and Jom Khan are concerned, their evidences is to the effect as if Suleman and Jom Khan fired at the witnesses, while Kamal and Mallas supplied cartridges. So far as Rehman is concerned, no overt acts has been attributed. Under the circumstances, the question is whether all these five appellants in these two appeals can be roped in by application of Section 149 IPC. The High Court itself has pointed out in the course of judgment that the prosecution evidence as given by PWs 14 to 17 that Mallas and Kamal were supplying cartridges is somewhat exaggerated. Having made such an observation, yet the High Court proceeded to convict them also by applying Section 149 IPC merely because their presence was spoken to by these witnesses, we think by itself, may not be a ground to rope them in since the case is the same as against the other eight accused against whom it was withdrawn. Now, coming to Rehman. No overt acts have been attributed against him. Therefore, his case falls in the same category. Then we are left with Suleman and Jom Khan. No doubt, the witnesses – PWs 14 to 17 have deposed that they fired at the witnesses. But as mentioned above, these witnesses who were alleged to have received injuries did not attribute any overt acts to them and they were treated hostile. Further, no weapons were recovered from these accused nor there is any substantial evidence which shows the presence of cartridges. On the other hand, the High Court observed the prosecution case against Mallas and Kamal is an exaggerated version. Suleman and Jom Khan are alleged to have fired the guns by using cartridges supplied by these two accused and the injured witnesses themselves do not say anything against these accused and when once a charge under Section 307/149 IPC is held not proved, then the question of applying Sections 302/149 IPC on the basis of their presence is highly unsafe. In the result, both the appeals are allowed. If the appellants are on bail, they need not surrender. Their bail bonds stand cancelled.
