CR.A/453/2001 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 453 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SOAB ABHA BHARUCHA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR NITIN M AMIN for Appellant(s) : 1 – 2, MR MA BUKHARI for Appellant(s) : 1 - 2. MR HL JANI APP for Opponent(s) : 1. ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 04/03/2008 CR.A/453/2001 2/30 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE R. P. DHOLAKIA) 1.0 This Appeal is directed against the judgment and order dated 21st April, 2001 passed by the learned Addl. Sessions Judge, Surat in Sessions Case No. 229 of 1996 whereby, the appellants were convicted for the offences punishable u/s. 302 of the Indian Penal Code [for short, “the IPC”] and Section 135 of the Bombay Police Act [for short, “the BP Act”]. 1.1 For conviction u/s. 302 IPC, the appellants were sentenced to undergo imprisonment for life with fine of Rs.2000/- each and in default of payment of fine, simple imprisonment for a further period of four months; while for conviction u/s. 135 of the BP Act, they were sentenced to undergo simple imprisonment for four months with fine of Rs.100/- each and in default of payment of fine, simple imprisonment for a further period of seven days. Both the sentences were ordered to run concurrently. The appellants were also given the benefit of set-off. CR.A/453/2001 3/30 JUDGMENT 1.2 This Appeal has been preferred by Original Accused nos. 2 & 3. Original Accused no. 1 had expired during the course of trial. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 At the time when the alleged incident in question took place, victim – Gulam Mohamad Aajambhai Bombaywala was residing in Bokad Fadiya area of Surat City and was earning his livelihood by running an auto garage opposite to Rander Bus-stand. 2.2 On 24.06.1996, at about 0200 hrs., Zohrabibi – the wife of Munna @ Asiz Abbas Malam, who is the cousin brother of victim – Gulam Mohamad, started to have abdominal pain. Since the garage of the victim was situated near to his house, said Munna @ Asiz Abbas Malam took her wife – Zohrabibi to the garage of the victim so as to inquire from the victim about the availability of any Doctor CR.A/453/2001 4/30 JUDGMENT in the nearby area at that point of time. 2.3 When they reached the garage, they noticed that it was open and the victim and one Imtiaz Rasul Sheikh were sitting. Thereafter, said Munna @ Asiz Abbas Malam inquired from the victim about the availability of any Doctor in the nearby area to which the victim informed that the Clinic of Dr. Sheikh Mohmad Saiyed Mohamad Gasi is located in a nearby area and that at that time, the said Doctor would be available at Hajira Mosque. Therefore, Munna @ Asiz Abbas Malam proceeded towards the residence of Dr. Sheikh Mohmad Saiyed Mohamad Gasi while the victim, the wife of Munna @ Asiz Abbas Malam – Zohrabibi and Imtiaz Rasul Sheikh proceeded towards the Clinic of Dr. Sheikh Mohmad Saiyed Mohamad Gasi. 2.4 Some time later, Munna @ Asiz Abbas Malam and said Dr. Sheikh Mohmad Saiyed Mohamad Gasi proceeded towards the Clinic. When they reached the Clinic, they noticed that the victim – Gulam Mohamad was lying on the stairs in a badly injured condition and was bleeding CR.A/453/2001 5/30 JUDGMENT profusely. At that time, both Imtiaz Rasul Sheikh and Zohrabibi Abbas Malam were present at the scene of offence. As the condition of the victim was deteriorating, Dr. Sheikh Mohmad Saiyed Mohamad Gasi advised that the victim be taken to New Civil Hospital, Surat for necessary treatment. Therefore, they began to search for a vehicle for the purpose of taking the victim to New Civil Hospital, Surat. 2.5 When Imtiaz Rasul Sheikh reached near Rander Bus-stand, he noticed that Shabbir Yusufbhai was sitting in his Auto-rickshaw parked near the said Bus-stand. Therefore, he informed Shabbir Yusufbhai to come along with his Auto-rickshaw for the purpose of taking the victim to New Civil Hospital, Surat. Accordingly, Shabbir Yusufbhai came to the scene of offence along with his Auto-rickshaw and thereafter, took the victim to New Civil Hospital, Surat in his Auto-rickshaw. At that time, the victim was accompanied by Munna @ Asiz Abbas Malam and his wife – Zohrabibi. 2.6 In the meanwhile, the P.S.I. of Rander Police CR.A/453/2001 6/30 JUDGMENT Station, who was doing night patrolling, received a wireless message from the Police Control Room that there was some disturbance near the market place. On receipt of the said information, the P.S.I. reached the scene of offence and after making preliminary inquiry, he proceeded towards New Civil Hospital, Surat. Thereafter, he noted down the complaint of the victim and since both the hands of the victim were seriously injured, he took the right-foot toe impression on the complaint and then sent the same to the Police Station for the purpose of registering the offence. 2.7 On receipt of the same, the P.S.O. registered the offence as Rander Police Station C. R. No. I – 194 of 1996 u/s. 307, 504 and 114 of IPC and Section 135 of the BP Act. Thereafter, the P.S.O handed over a 'wardhi' to P.S.I. - Girdharbhai Mandanbhai Bhalodiya for the purpose of carrying out necessary investigation. The said P.S.I. sent a 'yaadi' to the Executive Magistrate for the purpose of recording the dying declaration of the victim. Consequently, the Executive Magistrate visited the Hospital and recorded the dying declaration after completing necessary formalities. CR.A/453/2001 7/30 JUDGMENT 2.8 In the meanwhile, the Investigating Officer came to know that the victim has succumbed to the injuries at around 0500 hrs,. Therefore, the Investigating Officer sent a note to the concerned Magistrate for the purpose of adding offence u/s. 302 IPC in the said complaint. Inquest 'panchnama' was performed. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. The clothes on the dead body of the deceased were seized by way of a separate 'panchnama' in the presence of 'panchas'. 2.9 On 25.06.1996 the Investigating Officer went to the scene of offence and prepared 'panchnama' of that place in the presence of 'panchas'. Necessary 'muddamal' articles were also collected. Further investigating was carried out and statements of several witnesses were recorded. All the 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other reports, they were kept in the investigation file. CR.A/453/2001 8/30 JUDGMENT 2.10 Looking to the seriousness of the offence, from 26.06.1996 investigation into the same was taken over by P.I. - Bhupendra Ratilal Patel. As cogent evidence was found against the accused, they were arrested on 25.07.1996. Arrest 'panchnama' was prepared in the presence of 'panchas' and after completing necessary formalities, they were sent to judicial custody. During the course of interrogation, as the accused showed willingness to produce the weapons used in the commission of the alleged offence in question, the same was recovered by way of a separate 'panchnama' in the presence of 'panchas'. 2.11 On completion of the investigation, charge-sheet was filed against the accused before the Court of learned Chief Judicial Magistrate, Surat and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Surat and it was numbered as Sessions Case No. 229 of 1996. The matter was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. The learned Addl. Sessions Judge framed the charge and as the accused pleaded not CR.A/453/2001 9/30 JUDGMENT guilty to the charge leveled against them, trial was initiated. 3.0 The prosecution has examined in all sixteen witnesses in order to prove the guilt against the accused, namely, Mohmad Harun Chavda as PW – 1 at Exhibit – 37, who is the 'panch' witness to the discovery 'panchnama', Imtiaz Rasul Sheikh as PW – 2 at Exhibit – 56, who claims to be an eye-witness, Zohrabibi Asiz Malam as PW – 3 at Exhibit – 77, who also claims to be an eye-witness, Shabbir Rasul Bombaywala as PW – 4 at Exhibit – 102, who claims to have taken the deceased in his Auto-rickshaw to New Civil Hospital, Rameshchandra Jerabhai Patel as PW – 5 at Exhibit – 103, who prepared the Map of the scene of offence, Mohmad Illiyas Gulamnabi Tinwala as PW – 6 at Exhibit – 105, who is a 'panch' witness to the 'panchnama' of the scene of offence, Saiyed Farid Ahmedmiyan as PW – 7 at Exhibit – 107, who is a 'panch' witness to the Inquest 'panchnama', Gulam Abbas Abdul Rehman Sheikh Lightwala as PW – 8 at Exhibit – 109, who is a 'panch' witness to the 'panchnama' of seizure of clothes of the deceased, Dr. Sheikh Mohmad Saiyed Mohamad Gasi as PW – 9 at Exhibit CR.A/453/2001 10/30 JUDGMENT – 111, who is the Doctor at whose Clinic Zohrabibi was taken by the deceased, Mohmad Hanif Yusuf Shah as PW – 10 at Exhibit – 112, who is the 'panch' witness of the arrest 'panchnama', Dr. Mohmad Illiyas Isaq Mohmad Sheikh as PW – 11 at Exhibit – 114, who is the Medical Officer who performed the post-mortem of the deceased, Thakorbhai Govindbhai Mistri as PW – 12 at Exhibit – 117, who is the Executive Magistrate, Champaklal Sukhlal Chaudhary as PW – 13 at Exhibit – 123, who is the P.S.O. of Rander Police Station, Dr. Gaurang Somabhai Solanki as PW – 14 at Exhibit – 130, who is the Medical Officer who gave primary treatment to the deceased, Girdharbhai Mandanbhai Bhalodiya as PW – 15 at Exhibit – 132, who is the P.S.I./ Investigating Officer and Bhupendra Ratilal Patel as PW – 16 at Exhibit – 137, who is the P.I./Investigating Officer of Rander Police Station. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 134, the 'yaadi' sent to P.S.O. for the purpose of registering the offence, the dying CR.A/453/2001 11/30 JUDGMENT declaration of the deceased at Exhibit – 119, Inquest 'panchnama' at Exhibit – 108, the 'panchnama' of the scene of offence at Exhibit – 106, the discovery 'panchnamas' of the 'muddamal' weapons at Exhibits – 38, 39 & 40, the arrest 'panchnama' at Exhibit – 113, the PM Note at Exhibit – 115, the 'panchnama' regarding seizure of clothes from the dead body at Exhibit – 110, the Medical Certificate showing cause of death at Exhibit – 116 and the F.S.L. Reports at Exhibit – 140 & 141. 3.2 On submission of the closing ‘purshis’, the further statements of original accused nos. 2 & 3 were recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order and convicted the appellants for the alleged offence in question. As stated in the earlier part of this judgment, original accused no. 1 had expired during the course of trial and therefore, the impugned judgment was passed only qua original accused nos. 2 & 3, i.e. the appellants herein. Hence, this Appeal. CR.A/453/2001 12/30 JUDGMENT 4.0 Mr. Nitin M. Amin learned Advocate for the appellants has submitted that the appellants have been involved in the alleged offence in question only on the basis of presumption, as there is no evidence on record, much less any cogent evidence, to connect the appellants with the crime in question. 4.1 Learned Advocate for the appellants has contented that so far as the oral evidence on record in the form of depositions of Imtiaz Rasul Sheikh [PW – 2 at Exhibit – 56] and Zohrabibi Asiz Malam [PW – 3 at Exhibit – 77] are concerned, the prosecution has claimed them to be eye-witness to the alleged incident in question. However, on close scrutiny of their evidence, it is established that they are not eye-witness to the alleged incident in question. 4.2 Learned Advocate has further contented that the documentary evidence on record in the form of dying declaration of the deceased also cannot be said to be reliable and trustworthy on close scrutiny and therefore, it requires sufficient corroboration. CR.A/453/2001 13/30 JUDGMENT 4.3 Learned Advocate has submitted that the medical evidence on record also does not support the case of the prosecution. He has taken us through the evidence of the Medical Officer who has performed the post-mortem of the deceased and has contented that at the time when the complaint and dying declaration was recorded, the deceased must not have been in a conscious state of mind since the deceased had already lost ½ of the total quantity of blood from his body by the time he was brought to the Hospital. Therefore, the said aspect creates doubts about the genuineness of the complaint and the dying declaration. Hence, the Court below has committed serious error in convicting the appellants for the alleged offence in question. 4.4 Learned Advocate has relied upon a decision in the case of Khima Vikamshi & Ors., v. State of Gujarat reported in (2003) 9 S.C.C. 420 wherein on the facts of that case, the Apex Court held that the fact that no bloodstains were found on the person and clothes of PWs – 4 & 5 in spite of their holding the body of the victim and travelling CR.A/453/2001 14/30 JUDGMENT with him for long distance, though the victim had suffered multiple bleeding injuries, creates doubts about the presence of the said two witnesses at the time of the incident. 4.5 Learned Advocate has relied upon a decision of the Apex Court in the case of Nallapati Sivaiah v. Sub- Divisional Officer, Guntur, A.P. reported in J.T. 2007 (11) S.C. 313 wherein, it has been held that having regard to the nature of the very large number of injuries suffered by the deceased, he may not have been in a position to make any statement before the Police or the Magistrate. It has been further held therein that it is not safe to record conviction on the basis of a dying declaration alone where suspicion is raised as regards the correctness of the dying declaration and in such cases, Courts must look for corroborative evidence. 4.6 Learned Advocate has, therefore, submitted that looking to the overall oral as well as documentary evidence available on record, it is established that the prosecution CR.A/453/2001 15/30 JUDGMENT has failed to establish beyond doubt the guilt of the appellants. Therefore, this is a fit case wherein the appellants deserve to be acquitted from the alleged offence in question by granting them the benefit of doubt. 5.0 Mr. H. L. Jani learned APP has vehemently objected to the grant of this Appeal. He has contented that the oral evidence in the form of depositions of Imtiaz Rasul Sheikh [PW – 2 at Exhibit – 56], Zohrabibi Asiz Malam [PW – 3 at Exhibit – 77] and Shabbir Rasul Bombaywala [PW – 4 at Exhibit – 102] and documentary evidence in the form of complaint at Exhibit – 134 and dying declaration at Exhibit – 119 clearly establish the guilt of the appellants. 5.1 Learned APP has further contented that so far as the dying declaration is concerned, the same has been recorded after taking necessary endorsement from the Medical Officer concerned. Therefore, the dying declaration is reliable and trustworthy and conviction can be based on it. Thus, this is a fit case wherein the prosecution has been able to prove beyond doubt the guilt of the appellants. CR.A/453/2001 16/30 JUDGMENT Hence, no interference is required from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties and perused the oral as well as documentary evidence on record. Having heard the parties, it appears that the case of the prosecution mainly rests upon the oral evidence of Imtiaz Rasul Sheikh [PW – 2 at Exhibit – 56], Zohrabibi Asiz Malam [PW – 3 at Exhibit – 77] and Shabbir Rasul Bombaywala [PW – 4 at Exhibit – 102]. As per the claim of the prosecution, Imtiaz Rasul Sheikh [PW – 2 at Exhibit – 56] and Zohrabibi Asiz Malam [PW – 3 at Exhibit – 77] are eye-witness to the alleged incident in question while Shabbir Rasul Bombaywala [PW – 4 at Exhibit – 102] is the person who had taken the deceased to New Civil Hospital in his Auto-rickshaw along with PW – 2 & PW – 3 at the relevant point of time. We shall now examine the evidence led by each of the said three witnesses so as to ascertain the genuineness of the case put by the prosecution. 7.0 PW – 2 Imtiaz Rasul Sheikh, in his deposition at CR.A/453/2001 17/30 JUDGMENT Exhibit – 56, has stated that on the date of the alleged incident in question, at around 0230 hrs. while he was sitting in the Auto-Garage of the deceased along with the deceased, the cousin brother of the deceased – Munna @ Asiz Abbas Malam came to the Garage and inquired as to which Doctor would be available at that point of time as his wife was not feeling well. The deceased informed that Dr. Sheikh Mohmad Saiyed Mohamad Gasi [PW – 9 at Exhibit – 111] would be available and that the said Doctor would be available at Hajira Mosque. Therefore, Munna @ Asiz Abbas Malam proceeded towards Hazira Mosque while the deceased, he himself and Zohrabibi Asiz Malam proceeded towards the Clinic of the said Doctor. When they reached the Clinic of the said Doctor, they noticed that all the three accused persons were coming from the direction of Pijrawad with swords in their hands. Thereafter, original accused no.1 asked the deceased as to why he had disclosed his name as an accused in the Saiyedpura liquor case and that he was also the person who had implicated his friend Babloo in another offence. Immediately thereafter, all the three accused persons started to inflict sword blows on the CR.A/453/2001 18/30 JUDGMENT deceased. Therefore, he as well as Zohrabibi Asiz Malam made shouts of help. Some time later, the accused persons fled the scene of offence with their swords. Thereafter, he proceeded towards Rander Bus-stand and came back to the scene of offence in the Auto-rickshaw of his elder brother – Shabbir. When they reached the scene of offence, they noticed that Dr. Sheikh Mohmad Saiyed Mohamad Gasi [PW – 9 at Exhibit – 111] and Munna @ Asiz Abbas Malam were present. They lifted the deceased from the stairs of the Clinic and rested him in the Auto-rickshaw and then took the deceased to New Civil Hospital. Zohrabibi Asiz Malam and her husband – Munna @ Asiz Abbas Malam had accompanied the deceased to the Hospital in the said Auto- rickshaw. Thereafter, he left for his house. 7.1 This witness has been cross-examined at length by the other side before the Court below. The fact which has come out from his cross-examination is that though this witness has stated in his examination-in-chief that he and Shabbir had rested the deceased in the Auto-rickshaw of Shabbir immediately after the alleged incident in question CR.A/453/2001 19/30 JUDGMENT had taken place for the purpose of taking the deceased to the Hospital. However, no bloodstains have been found on the clothes of this witness on examination by the F.S.L,. 7.2 Here, it is pertinent to note that the medical evidence on record states that the deceased had sustained 25 external and 4 internal injuries on the body and that by the time the deceased was brought to the Hospital, about ½ of the total quantity of blood of the body must have flown out. Looking to the Report of the F.S.L. at Exhibit – 141 in light of the medical evidence on record, this Court finds it difficult to believe the say of this witness that after the alleged incident in question had taken place, he and Shabbir had lifted the deceased from the stairs of the Clinic and thereafter, rested the deceased in the Auto-rickshaw and then took the deceased to New Civil Hospital in the company of Zohrabibi Asiz Malam and her husband – Munna @ Asiz Abbas Malam. Had this witness and Shabbir firstly lifted the deceased from the stairs and then rested him in the Auto-rickshaw, then naturally, blood would have got stuck on his clothes. However, as per the F.S.L. Report CR.A/453/2001 20/30 JUDGMENT at Exhibit – 141, no bloodstains were found on the clothes of this witness, which were seized by way of 'muddamal' article. 7.3 Apart from that this witness has also not tendered any satisfactory explanation as to what he was doing in the auto garage of the deceased on the date of the alleged incident in question at about 0200 hrs., i.e. when Munna @ Asiz Abbas Malam had come to the garage of the deceased to inquire about the availability of any Doctor for the purpose of providing treatment to his wife – Zohrabibi Asiz Malam [PW – 3 at Exhibit – 77]. 7.4 The conduct of this witness at the relevant point of time is also to be noted. In his evidence, this witness has stated that after the deceased was taken to New Civil Hospital, Surat in the Auto-rickshaw of his brother – Shabbir, he went to his house without informing anybody about the alleged incident in question. Had this witness noticed the alleged incident in question, then he would have immediately informed about the said incident to the police CR.A/453/2001 21/30 JUDGMENT authority or any other person. However, that has not been done. Moreover, it is also to be kept in mind that this witness is a relative of the deceased. Thus, the above set of circumstances, as discussed herein above, creates serious doubts in our minds about the veracity of the evidence led by this witness. 8.0 Zohrabibi Asiz Malam [PW – 3 at Exhibit – 77] is the wife of Munna @ Asiz Abbas Malam and the person for whose ailment, the deceased, Imtiaz Rasul Sheikh [PW – 2 at Exhibit – 56] and said Munna @ Asiz Abbas Malam had gone to the Clinic of Dr. Sheikh Mohmad Saiyed Mohamad Gasi [PW – 9 at Exhibit – 111] at the relevant point of time. However, this witness has not supported the case of the prosecution and she has been declared hostile by the Court below. Therefore, we are not discussing the evidence led by this witness in detail. 9.0 So far as the evidence led by Shabbir Rasul Bombaywala as PW – 4 at Exhibit – 102 is concerned, he appears to be an interested witness. This witness postures CR.A/453/2001 22/30 JUDGMENT himself to be the Auto-rickshaw driver, in whose Auto- rickshaw, the deceased was taken to New Civil Hospital, Surat by Munna @ Asiz Abbas Malam and his wife – Zohrabibi Asiz Malam on the date of the alleged incident in question. 9.1 However, the say of this witness does not get any support from the evidence on record, more particularly, the evidence of Dr. Gaurang Somabhai Solanki as PW – 14 at Exhibit – 130. PW – 14 at Exhibit – 130 is the