IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 200 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE M.S.PARIKH and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ABDULKADER ALARAKHA PANJA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AD SHAH for Petitioners MS KATHABEN GAJJAR, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.PARIKH and MR.JUSTICE H.H.MEHTA Date of decision: 21/07/2000 JUDGEMENT [ Per M.S. Parikh, J.] 1. Present appeal arises from the conviction and sentence of the appellants u/S. 302 read with section 34 of the Indian Penal Code (for short 'IPC') rendered by the Ld. Addl. Sessions Judge, Junagadh on 28/2/1990 in Sessions Case No. 141 of 1988. The 4 appellants, referred to as the accused persons, have been sentenced to imprisonment for life as per the impugned judgment and order. 2. Accused no. 1 - Abdulkadar Alarkha Panja, accused no. 2 - Abdreman Alarkha Panja and accused no. 3 Khalik Alarkha Panja are the real brothers. Accused no. 4 - Nazir Karim happens to be their cousin. It was the prosecution case that around three years before September 30, 1988 Alarkha Panja, father of accused nos. 1 to 3 was killed and in the sessions trial in that respect, deceased Umar Ibrahim, Mahmad Ibrahim Kaji, Suleman Hanif and other accused came to be convicted and sentenced to life imprisonment by the Sessions Court at Junagadh. Other accused persons Juma Isa and Raheman Isa were acquitted in the said trial. Thereafter, the accused persons and members of their family on one side and deceased Umar Ibrahim and his other relatives on the other side had continued differences between them. It has been alleged that around a month before the date of incident (September 30, 1988) aforesaid deceased Umar Ibrahim was released on parole and during such temporary release he was staying at village Maliya. Three days before the date of the incident his wife Rahimaben had gone to take medicines at Junagadh where she was staying with other members of the family in Kishorivada. There was an occasion for performance of some religious ceremony of the son of deceased Umar Ibrahim and for that purpose the members of the family were to go to Porbandar on September 30, 1988. Accordingly deceased Umar Ibrahim, Yusuf Mahmad, Salim Mahmad, Husen Ibrahim, Rahimaben, Mehboobben and Salishben and other relations had reached Junagadh S.T. Bus Stand at around 2.30 O'clock in the afternoon on that day. The bus was to start from platform no. 6 so that the said persons were waiting for the bus, which was brought to the platform at around 3 O'clock in the afternoon. The female persons and the children boarded the bus; whereas complainant Faruq Mahmad as also Salim Mahmad in the company of deceased Umar Ibrahim and other relatives were waiting while talking nearby the entrance of the bus. At that time accused no. 1 Abdulkadar, accused no. 2 Abdreman, accused no. 3 Khalik and accused no. 4 Nazir rushed with open knives in their hands to the place, addressed Umar Ibrahim that he had killed their father, started hurling abuses and launched assault on him. Accused no. 1 Abdulkadar and accused no. 3 Khalik gave knife blows on the stomach, chest and other parts of Umar Ibrahim's body and accused no. 2 Abdreman and accused no. 4 Nazir gave knife blows on the back of Yusuf Mahmad. Complainant Faruq Mahmad was frightened seeing the incident and ran therefrom and stood nearby the pillar of the platform. He saw the incident from that place. Rahimaben, wife of Umar Ibrahim came out from the bus seeing the incident and during her rescue act to save her husband, accused no. 2 Abdreman gave a knife blow on the throat of Rahimaben. On account of the injuries sustained by Umar Ibrahim and Yusuf Mahmad they fell down in bleeding condition. Yusuf Mahmad died on the spot. On account of the incident the passengers and other persons waiting at the bus stand started running away from the place. In the meantime, three police persons Mulsing Bhursing, Mangalgiri Babugiri and Bhagvanji Shiva rushed from the bus depot to the place of incident. They chased the accused persons and ultimately could succeed in apprehending the accused no. 1 Abdulkadar and accused no. 2 Abdreman with the Muddamal knives. Both the said accused have been taken in a rickshaw to the Junagadh City Police Station and produced before the P.S.O. (Police Station Officer). The complainant and other persons had taken injured Umar Ibrahim and deceased Yusuf as also injured Rahimaben to the hospital where Yusuf Mahmad was declared dead. Injured Umar Ibrahim and Rahimaben were admitted for treatment. However, Umar Ibrahim was in serious condition and died during his treatment. Thereafter, complainant Faruq Mahmad went to the Junagagh City Police Station and gave his complaint before P.I. Mr. Dholetar. At the time of recording of the complaint Police Constable Bhagwanji produced accused no. 1 - Abdulkadar and accused no. 2- Abdreman (Abdul Raheman) and Muddamal knives before the P.S.O. At around 4.00 to 4.45 p.m. Panchnamas of the physical condition of both the accused persons and their clothes as also of muddamal knives were prepared and blood stained muddamal knives and clothes of the accused persons were seized. The said two accused persons were then arrested. The Investigating Officer then recorded Panchnama of scene of offence, recorded statements of the witnesses and went to the hospital where he was informed that it was not possible to record dying declaration of Umar Ibrahim, who was under treatment. Upon the death of Umar Ibrahim inquest Panchnama was recorded and statements and other witnesses were also recorded. At around 3 O'clock in the afternoon on October 1, 1988 accused no. 3 Khalik and accused no. 4 Nazir presented themselves before the Investigating Officer who arrested them and upon production of muddamal knives by them, necessary Panchnama was prepared. Some effort was made by the Executive Magistrate for recording dying declaration of Umar Ibrahim, but since Umar Ibrahim could not give any statement, necessary report in that respect was submitted. After receipt of the report from the Forensic Science Laboratory in respect of muddamal articles charge-sheet was submitted and ultimately upon committal of the case to the Sessions Court, the accused persons were tried. 3. The accused persons pleaded not guilty at the trial and asserted that deceased Umar Ibrahim was fierce and head strong and was involved in the offence of murder so that some strangers might have killed him out of enmity. They have further asserted that they have been falsely implicated on account of the enmity with the deceased and others with them. 4. At the conclusion of trial and upon hearing of the arguments Ld. Addl. Sessions Judge came to the conclusion that death of Umar Ibrahim and Yusuf Mahmad was homicidal and not natural or accidental, that the accused persons intended to kill Umar Ibrahim and Yusuf Mahmad and with a view to accomplish their common intention they held the weapons like knives, that in furtherance of the aforesaid common intention accused nos. 1 and 3 gave knife blows to Umar Ibrahim and accused nos. 1 and 4 gave knife blows to Yusuf Mahmad and caused such injuries to them as were sufficient in the ordinary course of nature to cause death and four accused persons accordingly committed offence of murder, that accused no. 2 gave knife blow on the neck of Rahimaben and caused voluntary hurt to her and that the prosecution accordingly established the offence/s charged against the accused persons beyond reasonable doubt. Accused nos. 1, 3 and 4 were accordingly held responsible for the offence punishable u/S. 302 of the IPC and accused no. 2 was held to be responsible for the offence punishable u/Ss. 302 and 324 of the IPC. The Ld. Addl. Sessions Judge however, held that the prosecution failed to establish that the accused hurled abuses to Umar Ibrahim, Yusuf Mahmad and the complainant and insulted them with a view to provoke them to commit offence. The Ld. Addl. Sessions Judge has accordingly rendered the impugned judgment and order of conviction and sentence. 5. It might be noted that at the time of trial the accused nos. 3 and 4 further pleaded that they were not present at the time and place of the incident in question and they had gone to Mangrol. They examined five witnesses in defence. However, Ld. Addl. Sessions Judge has not accepted the defence evidence. 6. When this appeal came up for final hearing the evidence which has been placed on record both on behalf of the prosecution as well as defence has been read. It has been broadly submitted on behalf of the accused persons that the Ld. Addl. Sessions Judge has failed to appreciate properly the defence evidence in so far as accused nos. 3 and 4 are concerned, that the prosecution also failed to establish the facts of the prosecution story beyond reasonable doubt and that the prosecution having failed to explain injuries on the person of the accused nos. 1 and 2 they should have been given benefit of doubt. In reply, the Ld. APP has submitted that there is cogent and convincing evidence produced by the prosecution and the findings of the Ld. Addl. Sessions Judge are unassailable. We would deal with this submission a little later. We will, however, make a brief resume of the evidence that has been placed on record. 7. P.W. 1 Dr. Arjunbhai Gorabhai Rathod, Exh.30 has been examined for placing on record the post mortem report Exh. 31 in respect of deceased Yusuf Mahmad, who was found to have sustained following injuries :- (i) Incised wound 1" x 1/2" by cavity deep on back of the left chest near medial border of left scapula. (ii) Incised wound 1" x 1/2" cavity deep on back of the left chest near medial border of left scapula, 1" below injury no. (i), wound going upwards with internal injury of fracture in the 5th rib on left side of the chest with the left lung cover torn. The death of Yusuf Mahmad was opined to be on account of cardiac respiratory failure due to hemorrhagic shock resulting from the injury to the heart and left lung. P.W. 2 Dr. Arunray Janakray Mankad has been examined at Exh. 32 in respect of post mortem report exh. 33 concerning deceased Umar Ibrahim who was found to have sustained following injuries :- (i) Inverted stiched wound 2.1/2" x 3.1/2" on right side of chest wall in between 6th and 7th rib causing fracture therein. (ii) Curved stitched wound 16" in length on the upper portion of the abdomen. (iii) Oblique St. wound about 7" long on the right side of the abdomen and on the right side of the buttock. (iv) Incised wound 1" x 1/4" x Muscle deep on the left side of the chest back 2" away from mid line and at the level of 6th rib. (v) St. wound 2" x 2" long on the right wrist and 6th abrasions on both the knees. Corresponding internal injuries have been noted in the post mortem report. The cause of death of Umar Ibrahim has been opined to be on account of shock and hemorrhage due to injuries to vital organs like liver, stomach, etc. P.W. 3 Faruq Mahmad Exh. 36 was one of the relations of deceased Umarbhai who had joined the party going to Porbandar on the aforesaid religious occasion. He happened to be deceased Umar Ibrahim's sister's son. Speaking to the facts of the incident in question, the witness has testified that he was standing in the company of Yusuf, Umar Ibrahim and Salim nearby the entrance of the bus. He has spoken to the facts of assault launched by accused persons while holding knives in their hands and giving knife blows to the two deceased persons. According to him Abdulkadar, Khalique and Adreman, three sons of Alarakha Panja and their cousin Nazir Karim rushed with knives in their hands from the opposite direction. They all started abusing the maternal uncle of the witness addressing him that he had murdered their father saying that they assaulted the maternal uncle of the witness. They launched the assault on Umar Ibrahim, the maternal uncle of the witness and Yusuf, the son of the witness's mother's sister. Accused no. 1 Abdulkadar Alarakha and accused no. 3 Khalique Alarakha started giving knife blows to Umarbhai and accused no. 2 Abdreman Alarakha and accused no. 4 Nazir Karim started giving knife blows on the back side of said Umar Ibrahim. Witness therefore, escaped and took shelter standing nearby the pillar of the platform. He saw Rahimaben alighting the bus and intervened. Abdreman accused no. 2 gave a knife blow on the neck of said Rahimaben and accused no. 1 Abdulkadar Alarakha caught hold of Rahimaben's leg and fell her down. People started running away from the scene. Police rushed there. Accused ran away. Police chased them. Thereafter, Yusuf and Rahimaben were taken to the hospital where Yusuf was declared dead and Rahimaben was admitted for treatment. Umar died on the next day. Witness had given the complaint to the Inspector Dholetra. Witness No. 4 - Rahimaben, widow of Umar Ibrahim exh. 37 has been examined. She also accompanied the deceased and other relatives for going to Porbandar to attend the religious occasion. Speaking to the facts of the prosecution case, this witness has also testified that when the bus was placed at the platform Husena, Mehmudaben, Sabura, she and her two sons boarded the bus; whereas her husband Umar Ibrahim, Faruq, Salim and Yusuf were standing nearby the bus. She heard a great noise. She therefore, saw outside and noticed accused no. 1 Abdulkadar and accused no. 3 Khalique giving knife blows to her husband Umar Ibrahim. She, therefore, alighted the bus and tried to intervene. At that time she saw accused no.2 Adreman and accused no. 4 Nazir Karim were giving knife blows to Yusuf. When she intervened, the accused no. 2 Abdreman gave knife blow on her leg and accused no. 1 Abdulkadar fell her down. Police rushed there and the accused ran away. She has testified that her husband got injuries on her stomach and chest and his intestine came out. Yusuf sustained injuries on his back side. She and other injured persons were taken in a rickshaw to the hospital and the doctor declared Yusuf having been died. Her husband died on the next day at 4.00 O'clock in the morning. He was unable to speak throughout the period he survived in the hospital. He was however operated. P.W. 5 exh. 38 - Mangalgiri Babugiri, Police Constable, Buckle No. 1176 was on his duty in the city police station at Junagadh on 30/9/1988 and his duty was at the Junagadh Bus Stand. He was accompanied with Police Constable Mulsinh. The incident in question occurred around 3 to 3.15 O'clock in the afternoon. When he heard the noise and the shouts of protection, they came to know that something was going on towards the eastern direction. Both the constables therefore, rushed to platform no. 6 where they found that two persons were lying in bleeding condition, one was nearby the front portion of the bus and the another person was nearby the rear portion of the bus. The witness saw two persons escaping, one wearing Jabbha was running with a knife in his hand. The witness chased him. When he fell down while climbing down the compound wall, the witness caught hold of him. He had blood stained knife in his hand. Identifying the said person as accused no. 1 Abdulkadar Alarakha Panja the witness deposed that the said accused no. 1 was produced with the knife before the Police Station Officer in the city police station. P.W. 6 - Bhagvanji Shivabhai, exh. 39 Police Constable, buckle no. 736, was on duty at the S.T. Bus Stand on 30/9/1988. There were other two police constables performing their duty at the Bus Stand. The incident occurred at around 3.00 O'clock in the afternoon. He saw 4 persons running away after assaulting with knives. He chased them. Two persons ran towards northern direction and two persons ran towards eastern direction. He chased persons running towards eastern direction. He and constable Mulsinh caught hold of one accused person. He held blood stained knife in his hand. He was produced before the Police Station Officer in the police station. When they have presented them constables Mulsinh and Mangalgiri also brought other accused persons. It was at around 3.30 O'clock in the afternoon. The witness identified the person caught hold of by him as accused no. 1 Abdulkadar Alarakha. He deposed that he could not identify the accused apprehended and produce by constable Mangalgiri. P.W. 7 - Dr. Bhalchandra Narmadashankar Joshi, exh. 40 has been examined since when the witness was on his duty as the doctor in O.P.D. Junagadh, Umar Ibrahim and Rahimaben were brought to the hospital at 3.10 O'clock afternoon. In so far as Umar Ibrahim is concerned, he noticed following injuries :- (i) stab wound on right side of chest (ii) stab wound on epigastrium near the first injury (iii) stab wound on right paraumbilical region (iv) stab wound on right sub costal region (v) stab wound just below injury no.4. (vi) stab wound on left side near the sub costal region When the patient was operated it was found :- (i) Peritoneal cavity was full of blood (ii) stomach perforated with wall perforation wound 1/2" in lengthoozing out food particles (iii) lacerated wound around 4" in length on the outer surface of stomach (iv) wall of gall bladder was partially cut 1 c.m. near fundes (v) tear in left surface of liver left lobe 1 c.m. in length on the lrft lobe surface of liver (superficial in nature) (vi) two perforations on intestinal elliam (vii) tear on upper surface of liver extending upto injury no.4. The witness opined that the injuries could be caused by the two muddamal knives. This witness has further referred to the following injuries sustained by witness Rahimaben :- (i) one incised wound 2 cm x 5 cm x muscle deep on the root of neck left side in Supraclavicular region. Direction oblique. Bleeding + T. According to him these injuries could be caused by the Muddamal knife shown to him. The injured woman was discharged on the next day (1/10/1988). P.W. 8 - Pankajbhai Maganlal, exh. 44 is the Panch witness to Panchnama exh. 45 with regard to two knives containing blood stains with the clothes also containing blood stains. This witness, however, has been permitted to be cross-examined by the prosecution. P.W. 9 Vijaykumar Amrutlal, exh. 46 has been examined as another Panch witness to Panchnama exh. 45. He has also been permitted to be cross-examined by the prosecution. P.W. 10 Iqbalbhai Ismail, exh. 47 is Panch witness to Panchnama exh. 48 regarding production of a knife by accused Abdul Khliq Alarakha. This witness has also been permitted to be cross-examined by the prosecution. P.W. 11 Alipir Mahmadbhai, exh. 49, a Panch witness to Panchnama exh. 50 in respect of scene of offence and collection of blood stained earthern portions as well as find of cover of knife. P.W. 12 Maheshchandra Govindji, exh. 51 is the Head Constable who was on duty as P.S.O. in Junagadh City Police Station on 30/9/1988 between 12 noon and 8 at night. He has testified that at 3.00 O'clock afternoon one constable produced one accused and two minutes thereafter another constable produced another accused. He accordingly informed the P.I. who said that he was writing the complaint and the witness to wait. The P.I. recorded the complaint mark A and sent it to this witness, who registered the offence. Further investigation was handed over to the P.I. The witness wrote a Yadi exh. 52 to the Executive Magistrate for recording dying declaration of Umar Ibrahim. The Yadi recites that Umar Ibrahim having been seriously injured in a fight has been admitted in M.S.W. ward of General Hospital and his dying declaration is required to be recorded. Witness has also referred to Yadi exh. 55 addressed by the Medical officer, General Hospital, Junagadh to P.I. Junagadh City Police Station on 1/10/1988 stating that the aforesaid injured died at 3.45 O'clock on 1/10/1988. P.W. 13 Govindbhai Hamirbhai, exh. 57 happened to be a watchman at the Junagadh S.T. Depot performing his duty from 8.00 a.m. to 4.00 p.m. on 30/9/1988. This witness has been permitted to be cross-examined by the prosecution. P.W. 14 Arjunsinh Pratapsinh Dholetar, exh. 58 is the P.I. Crime Branch, Ahmedabad, who was serving as P.I. in Junagadh City Police Station on 30/9/1988. He has testified that complainant Faruq Mahmad went to the police station at around 3.45 O'clock in the afternoon and gave his complaint to this witness, who had written it on a blank piece of paper and directed the same for registering the offence to P.S.O. Mr. Maheshkumar. The complaint so recorded by him appears at exh. 26. The defence had examined Hussein Habib, D.W. 1 exh. 63, D.W. 2 Kadar Habib, exh.68, D.W. 3 Intiyaj Hasan exh.70, D.W.4 Mahmad Hussein Mamadmiya Kadri, exh.71 and D.W. 5 Bashirabdul Abdul Karim, exh. 72 essentially in respect of plea of alibi canvassed by accused no.3 Khaliq Alarakha Panja and Nazir Karim Panja. 8. Prosecution has placed on record following documentary evidence :- Exh. 18 is the inquest Panchnama in respect of dead body of deceased Yusuf Mahmad with his clothes noted to be blood stained and with cuts of two wounds on the back side of the shoulder noticed by the Panch witnesses. This Panchnama is drawn on 30/9/1988 between 4.30 and 5.15 p.m. Exh. 19 is the inquest Panchnama in respect of dead body of deceased Umar Ibrahim withblendages on chest and waist. This Panchnama has been drawn on 1/10/1988 between 4.30 and 5.10 p.m. Exh. 20 is the Panchnama in respect of blood stained clothes of deceased Umar Ibrahim drawn on 1/10/1988 between 6 and 6.30 p.m. Exh. 21 is the Panchnama with regard to blood stained clothes of deceased Yusuf Mahmad after post mortem was performed. This Panchnama has been drawn on 3/10/1988 between 11.30 and 12.00 noon. Exh. 22 is the despatch note addressed by the concerned police authority to the Forensic Science Laboratory sending therewith Muddamal articles. Exh. 23 to 25 form communications and the reports from Forensic Science Laboratory and Chemical Analyser. They inter-alia indicate that both the deceased had blood group "O" which was found on Muddamal knives recovered from the accused nos. 1 and 2 - Abdulkadar and Abdreman Alarakha. The Muddamal knife alleged to have been recovered from accused no. 3 Khalik Alarakha also shows blood group "O", although from the apparent examination the knife did not contain the blood stains. The knife alleged to have been recovered from accused no. 4 does not show any blood stains either in the Forensic Science Laboratory examination or in the examination by the Assistant Chemical Analyser. Exhx. 26 and 27 are respectively the F.I.R. and its copy. Exh. 94 is the communication from jail authority of Ahmedabad Central Jail addressed on 20/8/1988 to the I.G.P. State of Gujarat inter-alia stating therein that Umar Ibrahim (since deceased) was enlarged on parole for a period of 60 days on 29/8/1988. Exh. 31 is the post mortem report of deceased Yusuf Mahmad. Exh. 33 is the