IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 401 of 1993 WITH CRIMINAL APPEAL No 391 of 1993 WITH CRIMINAL APPEAL NO 392 of 1993 WITH CRIMINAL APPEAL NO 396 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE KSHITIJ R.VYAS and Hon'ble MR.JUSTICE AKSHAY 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 -------------------------------------------------------------- SALIMKHAN HAMIDKHAN PATHAN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 401 of 1993 MR KJ SHETHNA for Petitioners No. 1-4 MR KC SHAH, APP for Respondent No. 1 2. Criminal Appeal Nos. 391, 392 and 396 of 1993 MR KC SHAH, APP for Petitioner No. 1 MR KJ SHETHNA for Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 25-28/01/2002 ORAL COMMON JUDGEMENT (Per : MR.JUSTICE AKSHAY H.MEHTA) 1. All these appeals arise from the judgment rendered by Ld. Addl. Sessions Judge, Surat dated 31/12/1992 in Sessions Case No. 130/1990. These appeals are, therefore, heard together and they are disposed of by this common judgment. 1.1. For the purpose of this judgment all the original accused are described by their names together with their original position as stated in the judgment of the trial Court, as there is some difference in their serial nos. stated in the charge framed by the trial Court and the judgment delivered by it. 2. Criminal Appeal No. 401/1993 is filed by 4 original accused, namely, Salimkhan Hamidkhan Pathan accused no.2, Abdul Samad Mahmad Mirza - accused no.3, Yakub Gulam Pathan - accused no. 7 and Hamidkhan Gulamkhan Pathan - accused no. 8 challenging the order of conviction and sentence passed against them by the Ld. trial Judge. All the aforesaid accused have been convicted for offence punishable u/S. 302 and u/S. 302 read with section 149 of the Indian Penal Code (for short 'IPC') and they have been sentenced to suffer imprisonment for life. Accused no. 2 - Salimkhan Pathan has also been convicted for offence u/S. 307 of the IPC and he has been sentenced to suffer RI for 10 years and to pay fine of Rs.200/-, in default to suffer SI for 15 days. So far the other 3 accused are concerned, they have been convicted for offence punishable u/S. 307 read with section 149 of the IPC and they have been sentenced to suffer RI for 10 years and to pay fine of Rs.200/-, in default SI for 15 days. Accused no. 2 - Salimkhan is also convicted for offence u/S. 324 of the IPC for which he has been sentenced to suffer RI for six months. The other two accused are convicted for offence u/S. 324 read with section 149 of the IPC and the same sentence has been imposed upon them. Further accused no. 2 Salimkhan and accused no. 8 - Hamidkhan are convicted for offence u/S. 323 read with section 149 of the IPC and they have been sentenced to suffer RI for 3 months, whereas accused no. 3 - Abdul Samad and accused no. 7 Yakub Gulamkhan have been convicted for offence u/S. 323 of the IPC and they have been sentenced to suffer RI for 3 months. All the four aforesaid accused have also been convicted for offences made punishable u/Ss. 143, 147 and 148 of the IPC and they have been sentenced to suffer RI for six months, RI for two years and RI for one year respectively. 2.1. So far Criminal Appeal No. 391 of 1993 is concerned, it is filed by the State of Gujarat against original accused nos. 1 - Gulam Sardar Pathan, accused no. 5 - Madinabibi, w/o. Gulam Sardar Pathan, accused no. 10 - Memunabibi, d/o. Hamidbhai and accused no. 6 - Nazmabibi, d/o. Abdul Samad Mirza challenging the order passed by the Ld. trial Judge acquitting them of offences made punishable u/Ss. 302, 307, 326, 337, 504, 147, 148 and 149 of the IPC. 2.2. Criminal Appeal No. 392 of 1993 is also filed by the State of Gujarat challenging the order of the trial Court acquitting accused no. 2 - Salimkhan Hamidkhan Pathan, accused no. 3 - Abdul Samad, accused no. 7 - Yakub Gulam Pathan and accused no. 8 - Hamidkhan Gulamkhan Pathan of the offences made punishable u/Ss. 326, 337, 504, 147, 148 and 149 of the IPC. 2.3. Criminal Appeal No. 396 of 1993 is again filed by the State of Gujarat u/S. 377 of the Code of Criminal Procedure [for short 'Cr.P.C.'] for enhancement of sentences imposed upon accused no. 2 Salimkhan Hamidkhan Pathan, accused no. 3 - Abdul Samad Mirza, accused no. 7 - Yakub Gulamkhan Pathan and accused no. 8 - Hamidkhan Gulamkhan Pathan for various offences, details of which have already been narrated in para. 2 of this judgment. 3. Before we proceed with this judgment on its merits, we may state that original accused no. 4 Ibrahim Husain Shaikh had died during the pendency of the trial and hence trial against him had abated. Moreover, after the pronouncement of the judgment by the trial Court and during the pendency of the aforesaid Criminal Appeals before this Court, accused no. 1 - Gulam Sardar Pathan expired on 6th March, 1999, accused no. 8 Hamidkhan Gulamkhan Pathan expired on 24th February, 1998 and accused no. 9 - Salmabibi Gulam Sardar Pathan expired on 31st May, 1997. So far the latter 3 accused are concerned, necessary documents regarding their demise have been produced before us and the State of Gujarat has no dispute on that count. In view thereof, by virtue of provisions of section 394 of the Code of Criminal Procedure the present appeals qua these accused will stand abated. With the result, we are now called upon to deal with these appeals only in respect of accused no. 2 Salimkhan Hamidkhan, accused no. 3 Abdul Samad, accused no. 5 - Madinabibi, accused no. 6 Nazmabibi, accused no. 7 - Yakub Gulam and accused no. 10 - Memunabibi Pathan. 4. The unfortunate incident in which two persons, namely, Abbaskhan and Haidarkhan lost their lives and several other persons received various injuries, took place on 28th January, 1990 at village Pipodara in Surat district. Marriage of one Rabiyabibi, daughter of Yusufkhan Amirkhan was scheduled to be held on that day. The marriage party of the bridegroom had arrived at Pipodara from village Siyalaj in the morning at about 10 O'clock. At about 11.00 O'clock one Gulam, son of Sabbirbhai, teased a young girl who had come there with the marriage party of the bridegroom. As a result of that, some unpleasantness was generated, which ultimately turned into a small quarrel between the members of the marriage party and some persons or the side of Gulam. However, with the intervention of Haidarkhan and Abbaskhan, the things were pacified and the marriage ceremonies and other celebrations came to be performed peacefully. At about 3.15 to 3.30 in the afternoon the marriage party of the bridegroom started to leave Pipodara and to return to village Siyalaj alongwith bride Rabiyabibi. At that time some of the present accused, namely Yakub Gulam, Hamid Gulam, Salim Hamid, Memunabibi, etc. picked up a quarrel with members of the marriage party near the house of Yusufkhan Amirkhan i.e. father of Rabiyabibi. It appears that the quarrel turned into some physical fight involving members from both the sides, but soon thereafter the marriage party, anyhow, managed to leave village Pipodara safely. Things, however, did not calm down at Pipodara. It appears that in continuation of this incident, the accused persons turned their attack on the relatives of Rabiyabibi. Some of the accused at that time had armed themselves with weapons. Accused no. 1 - Gulam Sardar Pathan carried koyta, an agricultural implement to reap the sugarcane crop, accused no. 2 Salimkhan Hamidkhan Pathan was having knife. Accused no. 3 - Abdulsamad was having a flat iron rod used as shock absorber spring in the truck, deceased accused no. 4 Ibrahim Shaikh carried iron rod, whereas accused no. 7 Yakub Gulam Pathan and accused no. 8 - Hamidkhan Pathan carried stick and spear respectively. The lady accused did not carry any weapon with them. These persons came in front of the house of Yusufkhan. At that time deceased Abbaskhan and Yusufkhan, uncle and father of Rabiyabibi respectively were making arrangement to return the utensils and other articles which were brought for the purpose of marriage. Both these persons were standing near Shamiyana erected just in front of the house of Yusufkhan. 4.1. On arrival, accused no. 2 - Salimkhan Pathan gave a knife blow to Abbaskhan just below the chest. He gave another blow with knife to Abbaskhan on the back side. As a result of that Abbaskhan fell down on the ground. Accused no. 8 - Hamidkhan Gulamkhan caused injury with spear to Haidarkhan on his back. Accused no. 2 Salimkhan Hamidkhan also caused injuries to Liyakat Mahmad and Mahmad Abbas and also to Idrishbhai on various parts of their bodies with knife. Accused no. 3 Abdulsamad, who was having flat iron rod with him, wielded it indiscriminately. He in particular caused injury to Liyakatkhan on his back. Accused no. 7 Yakub Gulam gave stick blows to Abbaskhan on his left hand near wrist and he also caused injuries to Idrishbhai Abbaskhan. The lady accused, namely, accused no. 5 Madinabibi Gulam Sardar, accused no. 6 - Nazmabibi Abdulsamadm accused no. 9 - Salmabibi Gulam and accused no. 10 - Memunabibi Hamidbhai also participated in this assault and gave fist and kick blows to Rajiyabibi, sister of Idrishbhai and also pelted stones with a view to cause injuries to members of the otherside. It also appears that during the attack some persons from the side of the Yusufkhan Amirkhan armed themselves with sticks and koytas and they caused injuries to some of the accused. After the assault was over, all the accused ran away from the scene. As a result of this assault Abbaskhan and Haidarkhan lost their lies; whereas others got seriously wounded. Both these deceased persons happened to be the brother of Yusufkhan Amirkhan and uncle of Rabiyabibi. 4.2. It appears that the Sub-Division Police Officer, Surat Rural Division Jayshiv Jayantbhai Desai had gone to Ankleshwar from Bharuch alongwith his police party in connection with offence registered at C.R. No. 10/1990 at Mandavi Police Station u/S. 394 of the IPC and while he was returning from Ankleshwar to Surat in the afternoon and at about 2.00 O'clock, he was informed by one Rickshawvala near Kim cross road at about 4.15 p.m. that a serious trouble had taken place in village Pipodara. He, therefore, went to Pipodara alongwith Circle Police Inspector Shri M.L. Parmar and the Sub Inspector of L.C.B. Shri G.R. Tiwari together with the police party. While he was on his way to Pipodara the S.D.P.O. also informed the Police Sub Inspector, Kosamba Police Station Shri Padariya on wireless about the incident and directed him to reach there immediately. When he reached Pipodara at the scene of offence, near Masjid Faliya, he saw that one person was already dead and one another was lying in very serious condition. He, therefore, instructed P.I. Shri Parmar to remove the injured to Government hospital in the staff jeep car. Accordingly Shri Parmar started with the inured in his jeep for the hospital. The S.D.P.O. continued to remain there. He instructed his staff members to find out whether there was any other person in injured condition requiring hospitalization. When Shri Padariya arrived he instructed him to record the first information and he also took steps to bring confidence amongst ladies and children, who were very scared and terrified. In the meanwhile Yusufkhan had gone to Mariyam hospital for taking treatment and from there to the Kosamba Police Station to give information regarding the incident. His information was reduced into writing by the concerned Police Officer and thereafter the usual investigation commenced. 4.3. In this incident over and above the death of two persons, several persons from the side of Yusufkhan received injuries, they were - Idrishbhai Abbaskhan, Liyakat Mahmad, Mahmad Abbasbhai and Yusufkhan Amirkhan. On the side of accused, accused no. 2 - Salimkhan Hamidkhan, accused no. 8 - Hamidkhan Gulamkhan, accused no. 7 Yusufkhan Gulamkhan and accused nos. 9 and 10 i.e. Salmabibi and Memunabibi respectively suffered injuries. The injured were treated at different hospitals and upon completion of the treatment they were discharged from the hospitals. 5. In pursuance to the complaint filed by Yusufkhan Amirkhan, P.S.I. Shri Padariya carried out the investigation into the matter after registering the offence at Kosamba Police Station against all the accused. During course of investigation he recorded statements of various persons conversant with the facts of the case, drew the relevant panchnamas such as inquest panchnama, panchnama of scene of offence, panchnama of recovery of weapons, etc., arrested all the accused, seized all the incriminating articles including the weapons used in commission of crime. At the end of the investigation, the I.O. filed chargesheet in the Court of the concerned Ld. Magistrate, who in turn committed the case to the Court of Sessions, in view of the fact that several offences alleged against the accused were exclusively triable by the Court of Sessions. 6. It may be noted here that from the side of the accused also a criminal complaint came to be filed with Police Station at Palsana, district Surat against some of the persons on the side of Yusufkhan. 7. At the trial, the Ld. Judge framed charge at Exh.16 on 26th March 1991 for various offences such as u/Ss. 302, 307, 321, 324, etc. of the IPC and the same was read over to the accused, who denied the guilt and claimed to be tried. 8. The prosecution in support of its case not only examined eye witnesses, the Medical Officers, panchas, the police officers and other relevant witnesses. The Ld. trial Judge upon completion of recording of oral evidence put all the incriminating circumstances appearing in evidence against the accused while rendering their further statements u/S. 313 of the Cr.P.C. to enable them to render explanation, if they so desired. Their defence appears to be of general denial. However, in furtherance thereof, they also filed written statement at Exh. 120 dated 22/9/1992. 9. On conclusion of the trial, the Ld. Addl. Sessions Judge, in view of the findings given in the judgment, passed the orders of conviction and sentence, details of which have already been stated in the foregoing paragraphs. In light of these orders, the present appeals have been filed. 10. At the hearing of this group of appeals Mr. K.J. Shethna, Ld. counsel for the appellants in Criminal Appeal No. 401 of 1993 and respondents in rest of the appeals, has submitted that so far the conviction and order of sentence passed against the appellants of Criminal Appeal No. 401 of 1993 are concerned, they are erroneous in as much as the prosecution has not been able to prove its case against them beyond any reasonable doubt. He has further submitted that the prosecution has suppressed certain material facts as they have not explained the injuries suffered by the accused and on that count alone the convicted accused deserve to be acquitted. He has further submitted that the prosecution has not come out with the true version of the incident as they have deliberately kept mum as to how the incident had actually started. He has submitted that there is no material on record to show that it was the accused who were the first assailants and, therefore, it is quite possible that there was a sudden fight in which both sides got injured and if that be so, the convicted accused can at the most, be held guilty of committing offence u/S. 304 Part-II of the IPC only and nothing more than that. He has further submitted that in view of the fact that there was sudden fight, all the individual accused are liable for their respective acts and they cannot be saddled with liability of committing offence by virtue of either section 34 or section 114 or sections 147, 148 and 149 of the IPC. Lastly, he has submitted that the Criminal Appeal No. 401 of 1993 filed by the appellants-accused be allowed and the other three appeals filed by the State be dismissed. 10.1. As against that, Mr. K.C. Shah, the Ld. APP for the State has submitted that the trial Court has not committed any error and hence there is no need for this Court to interfere with the appeal filed by the appellants. He has further submitted that looking to the evidence that has come on record, this Court is also required to take strict view on the question of sentence passed by the trial Court and has submitted that the said sentence is required to be enhanced being hopelessly inadequate. He has also submitted that the accused who were already acquitted by the trial Court are equally guilty of committing the main offences by virtue of they being members of the unlawful assembly and they are required to be convicted with the aid of sections 147, 148 and 149 of the IPC. In other words, he has submitted that all the aforesaid appeals filed by the State of Gujarat are required to be allowed. 11. The learned counsels have taken us through the entire record of the case and have placed reliance on oral as well as documentary evidence in support of their contentions. We have also minutely scrutinized the evidence on record with a view to reappreciate it afresh. 12. The prosecution in all has examined 27 witnesses to prove its case against the accused. 12.1. Out of 27 witnesses, there are 10 eye witnesses. Out of them some witnesses have even suffered injuries in the incident. 12.2. In order to prove that both the deceased had died homicidal death, the prosecution has placed reliance on medical evidence in the form of oral evidence of Dr. Virendrakumar Dhanajibhai P.W.9 Exh. 55 and Dr. Hasmukhbhai Natvarbhai Naik P.W.10 Exh. 59. Dr. Virendrakumar has examined the dead body of Haidarbhai Amirkhan Pathan on 29/1/1990. At the relevant time he was discharging duties as Medical officer at Primary Health Centre, Kathor. According to him, on 28/1/1990 at about 7.45 p.m. dead body of Haidarbhai Amirbhai Pathan was received by him from the Dinbandhu Hospital, Kamrej. He had commenced the post mortem examination of the said dead body on 29/1/1990 at about 8.30 a.m. and completed the same at 9.30 a.m. He has also prepared post mortem notes recording his findings of the post mortem examination of the dead body. In column no. 17 of the post mortem notes, which have been produced on record at Exh. 56, it has been stated that the deceased had sustained following external injuries :- (1) Sharp cutting wound on the right scapula in 'L' shape. Size 3 x 3 x 8 cm. Right scapula is sharply cut out just below superior border 4 cm. So far the internal injury is concerned, he has noted that the right pleura is torn in posterior part and the right lung is punctured and full with blood. In his opinion, the cause of death is shock due to severe hemorrhage due to injuries to right lung and these injuries were caused at about 12 to 18 hours before the post mortem examination. In his evidence this witness has stated that these injuries could be caused by two edged sharp pointed weapon and in his opinion the injuries suffered by the deceased were sufficient in ordinary course of nature to cause death. In the cross-examination he has denied the suggestion of the defence that the injuries mentioned in column no. 17 of the post mortem notes could be caused by any sharp cutting instrument. He has reiterated that the said injuries could be caused only by two edged sharp pointed instrument. The defence has cross-examined this witness extensively. However, it has not been able to elicit any material which may of any help to it. The evidence of this witness, in our opinion, conclusively proves that the deceased Haidarbhai Amirkhan had died a homicidal death and the injuries received by him were sufficient in ordinary course of nature to cause death. It is also proved that the age of these injuries is about 12 to 18 hours prior to the post mortem examination. Over and above that, the prosecution has also placed reliance on the inquest report produced at Exh. 58 which is quite in consonance with the description of given injuries stated in the evidence of this witness. 12.3. The prosecution has examined Dr. Hasmukhbhai Natvarbhai P.W.10 Exh.59 who had performed the post mortem of Abbaskhan Amirkhan. At the time of incident, he was working as Medical Officer at Primary Health Centre, Kosamba. On 29/1/1990 at about 8.30 a.m. he received the dead body of Abbaskhan Amirkhan from the Police Sub Inspector, Kosamba Police Station. He commenced the post mortem examination of the dead body at about 8.45 a.m. and completed the same at about 10.45 a.m. He has recorded the findings of his post mortem examination in the post mortem notes which have been produced at Exh.60 on the record of the case. Column no. 17 of the post mortem notes describes the injuries sustained by the deceased. They are as follows :- (1) Stab wound on Rt. side of abdomen 2" away from mid line in Rt. hypochondriac region of abdomen transversely situated 3 cms. x 1 cm. cavity deep. Clean cut edge. (2) Red contusion on back of lower part of Lt. forearm 3" x 1" oblique. (3) Colla's fracture on Lt. wrist with deformity. (4) Stab wound on Rt. side of back 1.5" away from thoracic spins in 7th intercostal space. Transversely situated 4 cms x 1 cm. x cavity deep. So far internal injuries are concerned, this witness has noted that right lung was congested and it contained blood. The right lung was also congested with penetrated wound on the upper side of lower lobon on back side 2 x 2.5 cms. deep with profused bleeding due to ruptured lung vessels. He has also found the left lung congested. These injuries were corelated to injury no. 4 of column no. 17. He has also found perforation on right side of peretorial, which could be corelated with external injury no. 1 shown in column no. 17. So far abdominal cavity is concerned, it contained about 150 grms of blood. The other vital organs like lever, intestine were also shrank and they were full with gaseous substance as well as excrete. In the opinion of this witness, the cause of death was due to severe internal haemorrhage due to injury to right lung and omentum caused by sharp pointing and cutting instrument and two shocks. He has stated that these injuries were sufficient in the ordinary course of nature to cause death and in his opinion, the deceased must have died within 18 to 24 hours prior to the post mortem examination. So far injuries nos. 1 and 4 of column no. 17 are concerned, he has opined that the same could be caused by sharp cutting instrument, whereas injuries nos. 2 and 3 could be caused by hard and blunt substance like stick and by fall respectively. Nothing of any importance has been brought out in the cross-examination by the defence. The evidence of this witness, therefore, conclusively proves that the deceased Abbaskhan Amirkhan has died homicidal death and that