IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 395 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 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 --------------------------------------------------------- RAFIK KASAM @ HAKUDI JAGAMAGIYA - Orig.Accused No.1 TUI @ HUSEIN KASAM JAGAMAGIYA - Orig.Accused No.2 -Appellants Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR YOGESH S LAKHANI for Appellants - Accused MR KG SHETH, APP for Respondent - State -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE SHARAD D.DAVE Date of decision: 31/08/2001 JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. The appellants - accused have preferred this appeal against the judgement and order dated 10th March 1992 of the learned Sessions Judge, Amreli in Sessions Case No. 20 of 1990, by which the accused No.1 (present appellant No.1) - Rafik Kasam alias Hakudi Jagamagiya was convicted for the offence under section 120-B read with section 302 of the Indian Penal Code and sentenced to imprisonment for life and payment of fine of Rs.1,000=00, in default to suffer simple imprisonment for one year, and the accused No.2 (present appellant No.2) - Tui alias Husein Kasam Jagamagiya was convicted for the offence under section 302 of the Indian Penal Code for intentionally causing death of Jahangir and sentenced to imprisonment for life and a fine of Rs.1,000=00, in default of payment of which, to suffer simple imprisonment for one year, and also convicting him for the offence under section 307 of the Indian Penal Code by attempting to cause murder of Jamalbhai and sentenced to suffer rigorous imprisonment for seven years and a fine of Rs.500=00, in default to undergo simple imprisonment for six months. Both the accused were also convicted for the offence under section 135 of the Bombay Police Act read with section 120-B of the Indian Penal Code, and sentenced to simple imprisonment for four months and a fine of Rs.100=00, in default to suffer simple imprisonment for one month. All the sentences were directed to run concurrently. 2. The prosecution version was that, while the accused No.1 - Rafik Kasam alias Hakudi Jagamagiya was in the Amreli jail, he wrote an inland letter to Jahangir on 26th October 1989, which was hand-delivered on that day to Jahangir, in which he had threatened Jahangir that he would kill him within a couple of months. He had asked Jahangir to come with a surety for his bail on the next date of the hearing of his case, which was 27th October 1989. That inland letter was dictated by Hakudi through a co-prisoner Sanjay Ghadi. On 27th October 1989, the accused No.1 - Hakudi gave a postcard written by him, article 8, in the early morning to constable Anil who was going home after his night duty, asking him to give it to Jahangir. In that postcard, Hakudi recorded having written the earlier inland letter in anger and implored Jahangir to provide for a surety for his bail. On 9-11-1989, Hakudi was released on bail. The incident occurred on 27-11-1989 at about 2.30 p.m. In the earlier part of that day, the accused No.1 - Hakudi had gone to the house of Jahangir and from outside his house, he had talked to him and thereupon Jahangir told his wife Roshanbanu that he will go with Hakudi to placate him as he was angry over him and will use good offices of the leaders to compromise with him. He also told her that he will send vegetables from the market. Thereafter, he did send the vegetables and then, while he was sitting on a `lari' in Baharpara chowk with his friends Manu Mohan and Jamal, who had also come there, the accused No.2 Tui alias Husein Kasam Jagamagiya came suddenly with an open knife and gave a knife blow on the chest of Jahangir piercing his heart. At that time, Jahangir alongwith Manu Mohan and Jamal were sitting on a `lari' which was lying near the road. When the accused No.2 Tui gave a blow to Jahangir, Jamal got down from the `lari' and tried to intervene and at that time, the accused No.2 Tui gave a knife blow to him on the left side of his back parallel to costal margin which was an incised wound upto bone deep. The accused No.2 Tui then started running away and Jamal started chasing him. The accused No.2 Tui, however, was lost sight of in view of the crowd near the Jai Hind Cinema Theatre which was at a short distance from the scene of offence. Manu Mohan tried to hold Jahangir. According to the prosecution, one constable Gigabhai who was near the Jai Hind Theatre had seen the accused No.2 Tui running with a knife in his hand and, therefore, he had started chasing him, but the accused No.2 was lost sight of due to a crowd near the theatre. This constable was told by Jamal that the accused No.2 Tui had assaulted Jahangir. Jamal came back where Jahangir was lying. According to the prosecution, before dying, Jahangir had stated that, because of the quarrel with the accused No.1 - Hakudi, the accused No.2 - Tui (who was his brother) had taken revenge against him. Jahangir was then taken to the hospital by Manu Mohan and Jamal, where he was declared dead, and Jamal was given treatment. The executive magistrate was called and Jamal's dying declaration exh.22 was recorded, in which he had narrated the attack by the accused No.2 Tui on Jahangir at the aforesaid time when they were sitting on a `lari'. His FIR exh.27 was also recorded. 3. As per the Charge exh.2, both the accused stood trial on an allegation that the accused No.1 - Hakudi and the accused No.2 - Tui had conspired to kill Jahangir, and on 27-11-1989, the accused No.2 caused death of Jahangir as a result of such conspiracy by inflicting a knife blow on the vital part of his body, and that they had committed the offence under section 302 read with section 120-B of the Indian Penal Code, and the accused No.2 attempted to murder Jamal Hasan by giving him a knife blow causing grievous hurt to him. According to the prosecution, the muddamal knife by which the accused No.2 - Tui had given blows to Jahangir and Jamal was discovered at his instance and was having blood stains thereon of the blood group of both these persons, namely `A' as well as `B' groups (`A' of Jamal and `B' of Jahangir). 3.1 Both the accused pleaded not guilty. The defence version suggested in the cross-examination of the injured witness Jamal was that, around the time of the incident, Jahangir had asked Jamal Hasan and Rahim Hasan to go with him, because, he wanted to teach a lesson to Hakudi and he had sent Rahim Hasan to call Hakudi at the Jalaram Pan House where the incident occurred. Hakudi was not in his house, but alongwith Rahim, brother of Hakudi, Ibrahim had come. There was a quarrel between Ibrahim and Jahangir with exchange of abuses. According to the defence version, at that time, people of Khatki community gathered from the nearby area and one of the persons from the crowd had given a knife blow to Jahangir, as a result of which Jahangir fell down at the spot which was 22 feet away from Dilkhush Cycle Stores. According to the defence version suggested to witness Jamal, when he started running and was about 30 to 35 feet from this spot, somebody gave a knife blow to him also, and that it was not known as to who had given that knife blow. Thereafter, when the constable Gigabhai came there, the crowd dispersed. Ibrahim is examined in support of the defence version. 4. The trial Court, on the basis of the material on record, came to a finding that the death of Jahangir was homicidal. It was also held that the accused No.1 had dictated the inland letter, muddamal article 7 to Sanjaykumar Ghadi, whose handwritings were proved from the deposition and opinion of the handwriting expert, and that letter, addressed to Jahangir Abdulla, in clear terms contained threat of murder to Jahangir. Though the letter bore the date 26-10-1986, it was in fact 26-10-1989 and the year 1986 was written by mistake. The incident took place on 27-11-1989 and Jahangir was killed, pursuant to the conspiracy, by the accused No.2 Tui. The accused No.1 had come to the house of Jahangir in the morning of the day of the incident and Jahangir was killed in the afternoon by his brother, the accused No.2. It was held that all the facts collectively proved that the criminal conspiracy was hatched by the accused persons to murder Jahangir Abdulla. The Court relied upon the version of Jamal, who was the injured witness and held that his evidence was corroborated by Man Mohan and Gigabhai. It was held that the injury on Jamal was clearly an attack on his life. The Court rejected the evidence of Ibrahim examined on behalf of the accused as a defence witness, holding that his evidence appeared to be a tutored one. 5. The learned counsel appearing for the two appellants persons submitted that there was no evidence to show that there was any agreement between the accused No.1 and the accused No.2, and in absence of proof of such agreement, conspiracy between them was not proved. It was contended that the two letters, articles 7 and 8, did not bear any endorsement of the jail authority and the jailer in his deposition exh.28 had stated that no prisoner was permitted to send letters directly. Therefore, the story of the prosecution that these letters were sent by Hakudi from the prison was doubtful. It was also contended that the scribe of the inland letter, article 7, Sanjay Ghadi in his deposition exh.33 did not support the prosecution case, and has stated that he did not write this letter. Therefore, the comparison of the handwriting of the inland letter, article 7 with the specimen handwritings of Sanjay Ghadi was futile. Moreover, dictation by Hakudi of the contents of this letter to Sanjay Ghadi was not proved. It was submitted that the sweeper Bavabhai, in his deposition exh.31, did not support the prosecution and denied having delivered the letter, article 7, to Jahangir. It was then argued that the specimen writings of the accused No.1 - Hakudi with which the disputed writings in the postcard, article 8, were compared, were not proved since the panch witnesses Madhavji, exh.49 and Yusuf exh.34 did not support the prosecution case. It was argued that the version of police constable Anil that he had delivered the postcard, article 8, to Jahangir after it was given to him in the morning by the accused No.1 - Hakudi on 27-10-1989, was not reliable as no police constable with 18 years of service would behave in such a way contrary to the jail regulations. Moreover, Anil's statement was recorded only on 30-11-1989. It was then argued that, even if the postcard article 8 has been proved to have been written by Hakudi, it did not show anything incriminating. The counsel further contended that the discovery of knife by the accused No.2 was of no consequence, because, the place from where it was discovered was open and accessible to all and the site was shown by the PSI. According to him, there was no evidence for concealment of the weapon by the accused. As regards the finding of the blood stains on the muddamal knife of the two groups, namely `A' and `B', it was contended that it was not possible that blood of both Jahangir and Jamal would be detected on the knife even if the injuries were caused by the same knife to them, because, when subsequent injury is inflicted, the blood stains already on it would get mingled with the blood stains caused due to the subsequent injury. It was contended that the evidence of injured witness Jamal was not reliable, because, he had not given the full name of the accused No.2 in his statement before the executive magistrate exh.22 and had described him as "Tui Khatki". The fact that the full name of the accused No.2 was given in the FIR exh.27, but was not given in the statement exh.22 recorded by the executive magistrate would, according to the learned counsel, show that the FIR was not given by Jamal and might have been given by Manu Mohan. The statement exh.22 of Jamal was recorded after more than two hours of the lodging of the FIR. It was contended that Jahangir had admitted in his cross-examination that he knew the accused No.2 by his name and his father's name for last three years, which would suggest that, till his statement exh.22 was recorded by the executive magistrate, Jamal was not knowing as to who was the assailant, otherwise he would have given his full name. It is also argued that the presence of pool of blood at two spots on the road created doubt over the prosecution version. It was submitted that there were no blood marks noticed near the `lari' where the incident was said to have taken place. It was submitted that panch Sattar exh.47 has stated that there were no blood marks near the place of offence, and therefore, this created a doubt over the prosecution version. The learned counsel also argued that there was no enmity between the accused persons and the deceased and there was no reason for the accused No.1 to kill Jahangir. Moreover, there was no quarrel between the accused No.2 and Jahangir at any time. They belonged to different communities and there was no business rivalry between them. On the motive aspect, it was submitted that the prosecution version was concocted, because, in the FIR exh.27, Jamal stated that there was exchange of words between Jahangir and the accused No.1 - Hakudi and therefore, he was assaulted by the accused No.2 - Tui. In the statement exh.22, however, Jamal had said that he did not know why the incident occurred, while before the Court, he stated in paragraph 3 of his deposition that, on the issue of receiving letters from Hakudi, Jamal and Sattar had gone to scold the mother of the accused No.1 Hakudi and therefore, the incident occurred. It was further argued that, as per the medical evidence, the deceased would not have been in a position to speak after the injury and therefore, the prosecution version that, before dying, Jahangir had said that he was assaulted by the accused No.2, because, the accused No.1 had a quarrel with him, was not reliable. It was argued that merely because the FIR was promptly lodged, it cannot strengthen the prosecution case which should stand or fall on its own merit. It was contended that the deposition of Manu Mohan who is said to have witnessed the incident, could not be relied upon, because, he had an enmity with the accused No.1 and 2 as his brother was, according to him, killed by them and the attempt on the life of his other brother was made by them, and that dispute was going on with these accused persons since ten years. It was also contended that the conduct of Giga Jetha, the constable, who is said to have seen the accused No.2 running with open knife after the incident, was highly doubtful and did not inspire confidence. Though he knew the accused No.2 and had seen him running with a knife and came to know that Jahangir was injured by him, he still reported the incident only as a `maramari', and did not inform anyone till his statement was recorded on the next day. It was also submitted that Jamal was a chance witness, because, his son was sick and he was expected to be sitting in the market place with Jahangir and Manu discussing the results of the elections. It was also submitted that, from the evidence of the medical expert, it appears that Rahim had taken Jamal to the hospital which fact was concealed by the prosecution. Moreover, the rickshaw driver of the rickshaw in which Jahangir, Jamal and Manu went to the hospital was not examined. The `lari' on which these three were sitting prior to the incident was not found, and this was described as a major infirmity in the prosecution version. Manu Mohan was also assailed as a chance witness and as an interested witness in whose deposition, there was a material contradiction in form of an omission of his not having said in the police statement about the deceased having made a statement before him before dying that, because of quarrel with Hakudi, his brother, the accused No.2 had assaulted him. It was submitted that if this witness had held Jahangir allthroughout, he was placed in the auto-rickshaw, two abrasions would not have been found on Jahangir's body. Moreover, the clothes of this witness were found to be having blood of group `A' which was of Jamal, while if he were holding Jahangir, the blood would have been of group `B', which was of Jahangir. The learned counsel finally argued that the prosecution had not been fair in this case, because, the material witness Yogesh and Asraf whose statements were recorded, are not examined and the finding of blood of `A' group on the clothes of Manu Mohan as well as the finding of blood on the clothes of the accused No.2, on which no blood was noticed when they were seized, under a panchnama at the time when they were produced by the mother of the accused No.2, indicated a possibility of the police having planted the evidence by sprinkling blood of `A' group on the clothes of Manu Mohan which was of the accused No.2. It was also contended that the constable Gigabhai in his cross examination had referred to some panchnama by PSI Chauhan in which there was a reference to Asraf and Yogesh, but no such panchnama was forthcoming. 5.1 The learned counsel in support of his contentions relied upon the following decisions : [a] The decision in Saju v. State of Kerala, reported in (2001) 1 SCC 378 was cited for the proposition that, to prove the charge of criminal conspiracy, the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means, and that, to attract the applicability of section 120-B, it has to be proved that all the accused had the intention and that they had agreed to commit the crime. In the same decision, it was also held that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not necessary that each member to a conspiracy must know all the details of the conspiracy. It has to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew was leading to the commission of a crime, by one or more persons to the agreement, of that offence. Besides the fact of agreement, the necessary mens rea of the crime is also required to be established. [b] The decision of the Supreme Court in Param Hans Yadav v. State of Bihar, reported in AIR 1987 SC 955 was cited for the proposition that if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted. [c] The decision of the Supreme Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra, reported in AIR 1981 SC 765 was cited for the proposition that falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea by defence can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused. [d] The decision of the Supreme Court in B.N.Singh v. State of Gujarat, reported in AIR 1990 SC 1628 was cited to point out that, in a case where the High Court had held that the evidence of a prosecution witness is corroborated by the circumstance namely that the complaint was given within 20 minutes, it was held that such circumstance only at the most may establish the place and time of the occurrence and the nature of weapons used, but the corroboration should be in respect of the complicity of the accused and incriminating. [e] The decision of the Supreme Court in Nanhku Singh v. The State of Bihar, reported in AIR 1973 SC 491 was cited for the proposition that where there were ill-feelings between the accused side and the witnesses, the evidence of eye witnesses has to be scrutinised carefully. In that case, the Supreme Court observed that, both the trial Court as well as the appellate Court were aware of the need to exercise caution and after weighing the evidence carefully and giving the utmost benefit to the accused nonetheless came to the conclusion that the offence against both the appellant and the other accused had been established. [f] The decision of the Supreme Court in Chandrakant Chimanlal Desai v. State of Gujarat, reported in XXXIII (1) GLR 554 was cited for the proposition that the evidence of the handwriting expert was not decisive unless the prosecution version inspired confidence. In that case, the High Court had, as observed by the Supreme Court, made confessional statement of the accused No.1 as the basis and had then gone in search for corroboration. In that context, it was observed that, by relying on the opinion of the handwriting expert, the High Court concluded that it lent corroboration to the confession, thus treating the confession as the basic document around which the rest of the evidence must circle. [g] The decision of this Court in State of Gujarat v. Mohmed Fariq Haji Mohmad, reported in 2000 (2) GLH (UJ) 9, was referred to for the observations in paragraph 9 of the judgement which has been reproduced in the said paragraph that, if the prosecution relies on blood marks on muddamal and also gets the blood extracted, it is incumbent upon the prosecution to show to the court what quantity of blood was extracted from the dead body and from the accused's body and whether the same quantity was sent to the laboratory for analysis, and if before sending the same, some amount thereof was used, it must be shown for what purpose the same was used; or why the blood less in quantity then collected was sent to laboratory. It was observed that, when on that point, the evidence is not led, the possibility of "any mischief having been played by the police agency cannot be ruled out and this possibility points to the innocence of respondent casting clouds of suspicion on the credibility of entire wrap and woof of prosecution's story." 6. The learned Additional Public Prosecutor submitted that there was no reason to discard the version of the injured witness Jamal who was a disinterested witness and had no reason to falsely implicate the accused No.2, who had caused an injury to him immediately