CR.A/62320/2002 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 623 of 2002 With CRIMINAL MISC.APPLICATION No. 14769 of 2008 In CRIMINAL APPEAL No. 623 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= = 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 ? ========================================= = SAIYED SALIM AHMED @ KALIYO ABDUL GAFAR Versus STATE OF GUJARAT ========================================= =Appearance : MR US BRAHMBHATT with MR SAMIRKHAN AFZALKHAN for the Appellant MS HB PUNANI, ADDL PUBLIC PROSECUTOR for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 19/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The appellant accused (original accused) was shown as CR.A/62320/2002 2/4 JUDGMENT accused No.5 in F.I.R. His trial was separated and the trial of Accused Nos. 1 to 4 was conducted at first point of time. Original Accused No.1- Sattarkhan Pirzadakhan Pathan was convicted for offence punishable under Section 302 of the Indian Penal Code. Original accused Nos. 2 to 4 were also found guilty for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code. In the appeal filed by accused Nos. 1 to 4, this Court by judgment and order dated 14.10.2008 was pleased to alter the conviction from Section 302 to Section 304 Part I of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for 10 years. Remaining three accused (original accused Nos. 2 to 4) were acquitted under Sections 302 and 326 of the Indian Penal Code and they have been convicted under Section 324 of the Indian Penal Code. 2. As far as present appellant is concerned, though his case is noway grave and greater than that of original accused Nos. 2 to 4, in the trial separately conducted, complainant Samirkhan and witness Firozkhan (real brothers) have tried to implicate the present appellant with graver allegation, contrary to their original version, they have given before the Executive Magistrate in their respective dying declaration and so much so are also contrary to what they have deposed in the first trial against original accused Nos. 1 to 4. That part of the theory was also recorded by the this Court in the judgment and order dated 14.10.2008 delivered in the appeals filed by original accused Nos. 1 to 4. The other eye witnesses who are independent eye witnesses, namely Pathan Alamkhan PW 3 Exh.42, Babu Mulchand PW 4 Exh.43 and Nandkishore Sahu PW 5 Exh.44, in the first trial CR.A/62320/2002 3/4 JUDGMENT conducted against original accused Nos. 1 to 4 have not supported the case of the prosecution. In the background of these facts, when the complainant and his brother who are interested and inimical witnesses and who happened to be real sons of the deceased, it is not safe to rely upon their depositions implicating the present appellant- accused No.5 with different and graver allegation than the original story of the prosecution of only having caused injury to one of the witnesses and not to the deceased. It is also indicated that the dying declaration of both these witnesses Samirkhan and Firozkhan though gives totally different story with no such role now being alleged are ever being denied to have been given to Executive Magistrate in the deposition of the first trial. 3. This being the facts coming on record, we deem fit to give the same treatment to the present appellant as given to original accused Nos. 2 to 4 and acquit the appellant of the offence under Section 302 read with Section 149 of the Indian Penal Code as also under Sections 147 and 148 of the Indian Penal Code. However, the appellant is convicted for offence under Section 324 of the Indian Penal Code and he is sentenced to suffer three years' rigorous imprisonment with fine of Rs.500/- and in default to undergo simple imprisonment for three months. 4. Fine, if any, paid for the other offences be refunded to the appellant. It is stated that the present appellant is in jail for more than 8 years. Since the appellant has already served the substantive sentence, he is ordered to be released forthwith if not required in any other case. CR.A/62320/2002 4/4 JUDGMENT 5. The Criminal Appeal is partly allowed to the aforesaid extent. ORDER IN CRIMINAL MISC.APPLICATION NO.14769 OF 2008: In view of the order passed in the main appeal, being Criminal Appeal No.623 of 2002, the present application does not survive and is disposed of accordingly. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) omkar