Rajasthan High Court – Jodhpur
Rahman Khan vs State on 20 February, 2025
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (Db) No. 277/2024
Babu Khan @ Salim son of Shri Sadulleh Khan, aged about 48
Years, resident of Ward No. 06, Churu.
----Appellant
Versus
1. State of Rajasthan, Through PP
2. Shri Sattar Khan son of Shri Phule Khan, resident of Ward
No. 8, Churu.
3. Shri Mumtaj Khan son of Shri Hameed, resident of Ward
No. 06, Churu.
----Respondents
Connected With
D.B. Criminal Appeal No. 351/1996
Rahman Khan son of Shri Hameed Khan, resident of Ward no.6
Churu.
----Appellant
Versus
The State of Rajasthan.
----Respondent
D.B. Criminal Appeal No. 541/1996
State of Rajasthan
----Appellant
Versus
1.Rahman Khan son of Hameed Khan, resident of Ward no.6,
Churu, Rajasthan.
2. Sattar Khan son of Phule Khan, resident of Ward no.6, Churu,
Rajasthan.
3. Mumtaj Khan son of Hameed Khan, resident of Ward no.6,
Churu, Rajasthan.
----Respondent
For Appellant(s) : Mr. Chaitanya Gehlot, Adv. with
Ms. Vandana Prajapati, Adv.
Mr. H. S. S. Kharilia, Sr. Adv. assisted
by Ms. Kinjal Purohit, Adv.
Mr. Bhawani Singh, Adv.
Mr. Amit Kumar Purohit, Adv.
For State : Mr. Ramesh Dewasi, PP
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Mr. Shrawan Singh Rathore, PP
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON’BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Order
20/02/2025
Criminal Appeal 541 of 1996 has been filed by the State of
Rajasthan to challenge acquittal of Sattar Khan and Mumtaj Khan
recorded in Sessions Case No. 11 of 1995.
2. Babu Khan @ Salim, who is the informant, had filed Criminal
Revision No.307 of 1996 which was later on converted into
Criminal Appeal No.277 of 2024. He has also challenged the
judgment dated 10th July 1996 passed in Sessions Case No.11 of
1995 for two reasons viz (i) to challenge the acquittal of Sattar
Khan and Mumtaj Khan and (ii) to challenge conviction of Rahman
Khan for a lesser offence and not under section 302 of Indian
Penal Code.
3. Rahman Khan is also aggrieved by the judgment of
conviction under section 304 Part-I of the Indian Penal Code and
award of sentence of rigorous imprisonment for seven years and a
fine of Rs.10,000/-. He had filed S.B. Criminal Appeal No.351 of
1996 which has been tagged along with the aforementioned two
cases and are heard together.
4. On the basis of Parcha Bayan of Babu Khan @ Salim given
around 3:50 PM on 23rd November 1994, a crime was registered
vide FIR no. 262 of 1994 under sections 302, 307, 324, 341, 323
read with section 34 of the Indian Penal Code and a charge-sheet
was laid against Rahman Khan and Sattar Khan under sections
302, 307, 323, 324 and 341 read with section 34 of the Indian
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Penal Code. Mumtaj Khan was also sent up for trial for committing
the offence under sections 341, 323 and 324 of the Indian Penal
Code.
5. Later on, charge under sections 302/34, 324 and 341 of the
Indian Penal Code was framed against Rahman Khan and Sattar
Khan also faced the trial on the charge under sections 302/34 and
341 of the Indian Penal Code. Against the co-accused Mumtaj
Khan, the trial Court framed charge under sections 341, 323 and
324 of Indian Penal Code. These accused persons denied the
charges and claimed trial and in support of their defence produced
four witnesses. Whereas, out of 11 witnesses produced by the
prosecution, Babu Khan son of Mushraf Khan and Babu @ Salim
son of Sadulleh Khan were projected as star witnesses.
6. In the trial, PW-3 Navratanmal did not support the
prosecution case against the accused persons and he was declared
hostile. Two other important witnesses, namely, Saleem and Irfan
Ali were not produced by the prosecution in the Court and on that
basis a plea was raised that the prosecution has suppressed the
real version of the occurrence. This was also a ground urged on
behalf of the accused-persons that no independent witness came
forward to depose in support of the prosecution case though the
place of occurrence was a busy market place.
7. The trial Judge after having carefully examined the testimony
of PW-1 and PW-2 arrived at a conclusion that the evidence
tendered by the prosecution witnesses against Sattar Khan and
Mumtaj Khan were not sufficient to hold that they were involved in
the crime and, that, they shared common intention to commit
murder of Ali Mohammad.
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8. The learned Additional District and Sessions Judge at Churu
recorded the following reasons for acquitting Sattar Khan and
Mumtaj Khan of the criminal charges framed against them:-
English Translation:-
“First of all, it will be necessary to examine the evidence that has
come against accused Mumtaj. The written statement Exhibit P4
has been registered by Babu Khan alias Salim PW2. In which it is
only written that “At around 3 o’clock when we reached a little
ahead of Jagdish Bhaleriwala’s shop in the market ahead of the
Safed Ghantaghar (white clock tower), Rehman was sitting
behind on a scooter. Sattar was driving the scooter. Mumtaj and
Nagaraj also came there. As soon as they arrived, they attacked
and started beating, due to which Rahman stabbed Ali
Mohammad in the chest, blood started coming out.” It is not
written anywhere in this that Mumtaj said ‘hit’. The police
statements of both the witnesses, Exhibit D1 and Exhibit D2,
have been perused. It is not written anywhere in this that Mumtaj
took part in the fight or said ‘hit’. Only Mumtaj’s coming there has
been mentioned from one side, apart from this, no direct or
indirect action of Mumtaj has been mentioned whereas on the
contrary, PW 1 Babu Khan has said that – “They started pushing
and shoving us and in the meantime Mumtaj and Nagaraj also
came, who are present in the court. Mumtaj had said to hit him
and Rehman stabbed Ali Mohammad in the chest with a knife.
This is a completely new thing said about Mumtaj. This is
not mentioned in the police statement Exhibit 1. PW 2 Babu Khan
alias Salim said in his statement that Sattar and Rehman abused
us. They stopped us and started slapping and punching the three
of us. Meanwhile Mumtaj and Nagaraj also came who had come
on foot. Mumtaj told the accused Rahman and Sattar present in
the court to kill those bastards, then Rahman took out a knife, I
don’t remember from where did he take it out. He took out the
knife and stabbed Ali Mohammad right in the middle of his chest.
This too has been stated by the witness as new for Mumtaj.
Abuse was hurled. The witness has not told about slapping and
punching. Later both witnesses gave evidence against Mumtaj in
such a way that Mumtaj had said to Rahman, then Rahman
stabbed him. This incident was developed later, which is not
acceptable under any circumstances. Because the incident which(Downloaded on 07/03/2025 at 10:47:59 PM)
(5 of 11) [CRLAD-277/2024]took place near Teliyon Ki Masjid at 2-1/2 o’clock, Mumtaj got
injured in it and Mumtaj was admitted in the hospital at 3 o’clock.
DW Doctor 4 B.L. Gaur has clarified in his statement that on
23.11.94, accused Mumtaj was admitted in the hospital at 3
o’clock. Although the argument of the learned advocate of the
complainant and the Additional Public Prosecutor is that the
incident took place around 3 o’clock. The complainant did not
have any watch. Therefore, the difference can be more or less
and the accused can deliberately get admitted in the hospital
immediately after the incident. Because every person takes some
support to protect himself. This argument of the learned advocate
complainant is not acceptable because looking at the sequence of
events, the statement of Dr. Gaur about getting admitted in the
hospital at three o’clock, it is natural to get admitted at three
o’clock after the incident of 2.30 pm. It does not seem possible to
go from the market and get admitted in the hospital at three
o’clock after the incident of 3 o’clock. Anyway, PW 11
Rameshwarlal investigator has given a statement that Mumtaj got
injured in the incident that took place near the Tailiyon ki Masjid
and Babu Khan alias Salim also got injured. It is clear that the
accused Mumtaj got injured in the incident near the Tailiyon ki
Masjid and he was admitted in the hospital. Hence his
involvement in the fight was not considered even during the
investigation. Since the witness is interested and is giving
statement as per the evidence of the prosecution and is giving
exaggerated statement. Hence Mumtaj cannot be said to have
been present there and also cannot be said to have been involved
in the incident. The evidence given by both the witnesses against
Mumtaj is not acceptable. Mumtaj alone is charged under Section
324 IPC. Mumtaj has said that Babu Khan alias Salim was
stabbed with a knife. According to the investigator Rameshwarlal,
in the same incident, Mumtaj was also injured by a sharp weapon
and no explanation for these injuries has been given by the
prosecution. Rather, it has been denied that there were no
injuries. But Dr. B.L. Gaur (DW 4) has confirmed the injuries and
said that there were injuries caused by a sharp weapon on
Mumtaj’s body. Since no explanation for these injuries has been
given by the prosecution, it cannot be considered as voluntary
assault. The charge of Section 324 IPC also does not stand
against Mumtaj. It is said that accused Sattar came on a scooter.
But Sattar did not do anything.It is only mentioned that the(Downloaded on 07/03/2025 at 10:47:59 PM)
(6 of 11) [CRLAD-277/2024]scooter was stopped and then Rehman stabbed him with a knife
and then ran away.
Learned advocate of the complainant further stated that
Sattar came on a scooter and stopped the scooter, kept it started
and then ran away after stabbing him. This statement shows that
he was involved in the fight. According to the sequence of events
which is before the court, the fight took place near Taleyon Ki
Masjid, half an hour after that complainant Babu Khan alias Salim
was going from his house to the market to report to the police
station with Ali Mohammad and Babu Khan Sujangarh Wala and
on that side from the fort side accused Mumtaj’s brother Rehman
and uncle Sattar were also coming on a scooter. Though the
origin of the incident has been concealed by the prosecution and
later, while concealing the disclosure of this fact, the witness has
given a statement before the court that first he was stopped,
there was a scuffle and then Mumtaj said to kill Ali Mohammad.
But this incident has been created to satisfy the prosecution’s
formalities.
Although the origin of the incident has been concealed,
even after concealing it, looking at the circumstances before the
court, it is clear that Sattar and Rehman did not know that they
would meet the complainant on the way. The meeting happened
suddenly. There is no mention of any conversation in the first
information and also not in the police statements.This incident
seems to have taken place in casual conversation, because on
one side Mumtaj and Babu Khan fought in the Teliyon ki Masjid.
Both were injured. It was in the minds of both the parties and
later it reached the minds of the family members of both the
parties. This incident took place in a moment of anger and
without any conversation, the reason for any incident is not
understandable. Because the fact of hitting Ali Mohammad while
he was walking on the common road is not natural. Because if
injury was to be caused, then there would have been a fight with
Rehman’s brother, Babu Khan himself was present there, but
according to Babu Khan, he neither injured him nor did any effort
make to injure him.
Naturally, the origin of the incident has been concealed as
to how the incident started. But no matter how the incident
started, it can be said that suddenly both the parties met and
suddenly this injury was inflicted and there is no overt action of
Sattar in inflicting this injury/this injury was inflicted by Rahman.
For common intention, it is necessary that there is a prior(Downloaded on 07/03/2025 at 10:47:59 PM)
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in the same situation, this is necessary for section 34 IPC. For the
offence under section 149 IPC, there can be a common intention
at the time of the incident also, but the law is different for section
34. Sattar did not have any common intention to inflict injury on
Ali Mohammad, because he was going on a scooter and suddenly
the complainant party met him on the way, this incident seems to
have happened in a moment of anger. There was no common
intention for this.”
9. Mr. Shrawan Singh Rathore, the learned Public Prosecutor
and Mr. Chaitanya Gehlot the learned counsel appearing for the
informant have endeavoured to challenge the aforesaid findings
recorded by the trial Judge in respect of Sattar Khan and Mumtaj
Khan primarily on the ground that the testimony of Babu Khan @
Salim who tendered evidence as PW-2 could not have been
disbelieved by the trial Judge merely on the basis of minor
discrepancies in his testimony.
10. PW-1 Babu Khan son of Mushraff Khan deposed in the Court
that Mumtaj Khan assaulted Babu Khan @ Salim with a knife near
Teliyo ki Masjid and this incident was narrated by Babu Khan @
Salim to Ali Mohammad. In the cross-examination, PW-1 admitted
that he is a related witness. This witness further admitted that he
did not state before the police about Mumtaj Khan having injured
Babu Khan @ Salim because Investigating Officer did not make
any such query in this regard. PW-1 also admitted in the cross-
examination that in his police statement it is not recorded that
Mumtaj Khan had assaulted Babu Khan @ Salim with a knife.
PW-2 admitted in the cross-examination that he had a land
dispute with Mumtaj Khan. He further admitted in the cross-
examination that there was litigation going on between Ahmad
Khan, who is related to the accused-persons, and his father
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Sadulleh Khan. When confronted with his police statement
wherein he did not mention about the exhortation by Mumtaj Khan
to Rahman Khan and Sattar Khan saying “Saalo ko khatam kardo”,
this witness could not give a satisfactory explanation to the
omissions in his statement given under section 161 of the Code of
Criminal Procedure.
11. As to minor discrepancy, inconsistency, exaggeration etc. in
the testimony of the prosecution witness, the law is quite well
settled that the evidence of the prosecution witness cannot be
discarded merely because his evidence was to a certain extent
inconsistent or contained exaggerations [refer, “A. Shankar v.
State of Karnataka” (2011) 6 SCC 279]. In a catena of judgments,
the Hon’ble Supreme Court observed that for disbelieving the
testimony of a prosecution witness it is necessary that it is
demonstrated before the Court that such inconsistency or
exaggerations amounted to contradiction in the testimony of the
prosecution witness and changed the whole complexion of the
case. As we gather from the cross-examinations of PW-1 and PW-
2, these witnesses were evasive as to the questions put to them
particularly with reference to their statement made under section
161 of the Code of Criminal Procedure. These witnesses made
substantial improvements in their examination-in-chief and
introduced such facts in their testimony which were not stated by
them earlier before the Police. For example, PW-1 simply brushed
aside the suggestion made to him as to attack on Ali Mohammad
by simply saying that he did not supply this information because
the Investigating Officer never asked for the same.
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12. In an acquittal appeal, the High Court exercises similar
powers to examine the materials on record and can come to a
different conclusion as it does in an appeal against conviction. But
then, the judgment of acquittal of the accused-persons would
have two fold implications; firstly, the presumption of innocence is
bolstered and secondly, the reasoning given by the trial Court
cannot be lightly interfered by the High Court. In “Sheo Swarup v.
King Emperor” 1934 SCC OnLine PC 42, the Privy Council held as
under:
“Sections 417, 418 and 423 of the Code give to the
High Court full power to review at large the evidence3 upon
which the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal
should be reserved. No limitation should be placed upon that
power, unless it be found expressly stated in the Code. But
in exercising the power conferred by the Code and before
reaching its conclusions upon fact, the High Court should
and will always give proper wait and consideration to such
matters as (1.) the views of the trial judge as to the
credibility of the witnesses; (2.) the presumption of
innocence in favour of the accused, a presumption certainly
now weakened by the fact that he has been acquitted at his
trial; (3.) the right of the accused to the benefit of any
doubt; and (4.) the showness of an appellate Court in
disturbing a finding of fact arrived at by a Judge who had
the advantage of seeing the witnesses. To state this,
however, is only to say that the High Court in its conduct of
the appeal should and will act in accordance with rules and
principles well known and recognized in the administration of
justice.”
13. After having examined the materials on record, we have
arrived at a conclusion that the trial Judge applied correct test to
scrutinize the evidence tendered by PW-1 and PW-2 in acquitting
Sattar Khan and Mumtaj Khan of the criminal charges framed
against them. As observed by the Hon’ble Supreme Court in
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“Chandrappa v. State of Karnataka” (2007) 2 SCR 630, we do not
find any compelling reason to interfere with the decision of the
trial Judge to acquit Sattar Khan and Mumtaj Khan and, therefore,
the State Appeal and informant’s Appeal both are dismissed.
14. As to Rahman Khan, the prosecution failed to establish that
he had the requisite intention as envisaged under section 304
Part-I of the Indian Penal Code. This is the case of the prosecution
that there were two incidents in the entire episode. In the first
incident, Rahman Khan was not involved and, as noticed above,
the involvement of Mumtaj Khan in the first incident was
disbelieved by the trial Judge. The second incident occurred when
PW-1, PW-2 and the deceased Ali Mohammad were going to the
police station to lodge a report. In this incident, no role was
played by Sattar Khan or Mumtaj Khan. In fact, PW-2 admitted in
his cross-examination that no injury was caused to anyone by the
other accused persons except to Ali Mohammad. This is also a
matter of record that Mumtaj Khan had also received five injuries
in the first incident out of which two were incised wounds and
there was one stab wound caused to him. The recovery witness
also did not support the prosecution case to the extent that he
stated in the Court that the mother of Rahman Khan had brought
the knife and handed over the same to the police officer. This
further appears from the testimony of the prosecution witnesses
that the incident had happened in a busy market place but no
independent witness came forward to depose in support of the
prosecution case. The learned counsel for Rahman Khan referred
to the decision in “Deo Nath Rai v. State of Bihar & Ors.” (2018)
13 SCC 87, wherein the conviction of the accused who had
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assaulted the deceased with a sword in a sudden quarrel on
account of a dispute relating to agricultural land was altered under
section 304-II of the Indian Penal Code and he was sentenced to
rigorous imprisonment for five years. This is also bearing in our
mind that the appellant is suffering prosecution since last thirty
years.
15. In the aforementioned circumstances, the conviction and
sentence of Rahman Khan under section 304 Part-I of the Indian
Penal Code are set aside and he is convicted and sentenced to
period already undergone by him with a fine of Rs.5,00,000/-
under section 304 Part-II of the Indian Penal Code; he remained
in jail custody for about three years. The amount of fine shall be
deposited by the appellant, namely, Rahman Khan within a period
of eight weeks failing which he shall undergo further sentence of
simple imprisonment for six months and the amount of fine shall
be recovered from him as the arrears of land revenue as per the
applicable law. The fine amount shall be disbursed to the widow of
the deceased, namely, Ali Mohammad.
16. Rahman khan is discharged of liability of bail bonds furnished
by him pursuant to the order passed by this Court.
17. D.B. Criminal Appeal No. 351 of 1996 is allowed to the
aforesaid extent.
(CHANDRA SHEKHAR SHARMA),J (SHREE CHANDRASHEKHAR),J
96-98 nidhi/-
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