IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 666 of 1993 with CRIMINAL APPEAL No 746 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 -------------------------------------------------------------- GULAMHUSAIN A CHAUDHARY Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 666 of 1993 MS SM AHUJA for Petitioners No. 1-2,3 (MR PB MAJMUDAR) for Petitioners No. 1,2,3-4,5-6 MR MM TIRMIZI for Petitioners No. 1,2,5-6 MR DP JOSHI, APP for Respondent No. 1 2. Criminal Appeal No. 746 of 1993 MR DP JOSHI, APP for Petitioner No. 1 (MR PB MAJMUDAR) for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 16/10/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. On a trial held by the Ld. Addl. Sessions Judge, Court No.8, Ahmedabad, 8 accused i.e. six appellants in Criminal Appeal No. 666/93 and respondents nos. 3 and 4 in Criminal Appeal No. 746/93 were tried of the offences punishable under Sections 120B, 143,147, 148, 149, 302, 304, 307, 323, 324, 326 and 337 of the Indian Penal Code as well as section 135 of the Bombay Police Act in Sessions Case No. 149/1991. The Ld. Judge has convicted all the appellants in Criminal Appeal No. 666/93 of the offences punishable u/Ss. 147 and 148 of the Indian Penal Code and has further convicted the appellants nos. 3 to 6 of the offence punishable u/S. 326 read with section 149 of the Indian Penal Code whereas the appellants nos. 1 and 2 are convicted of the offence punishable u/S. 302 of the Indian Penal Code and the appellant no. 5 convicted of the offence punishable u/S. 307 of the Indian Penal Code. The Ld. Judge has punished all the appellants with RI for one year and fine of Rs.200/in default RI for 10 days for the offences punishable u/Ss. 147 and 148 of the Indian Penal Code. The appellants nos. 3 to 6 are punished with RI for 5 years and fine of Rs.300/-, in default RI for two months for the offence punishable u/S. 326 read with section 149 of the Indian Penal Code, whereas the appellants nos. 1 and 2 are punished with RI for life and fine of Rs.500/-, in default RI for five months for the offence punishable u/S. 302 of the Indian Penal Code and the appellant no.5 is punished with RI for 5 years and fine of Rs.500/-, in default RI for 3 months for the offence punishable u/S. 307 of the Indian Penal Code. It may be stated that the sentences imposed upon the convicted appellants are ordered to run concurrently. In Criminal Appeal No. 746/1993 the State of Gujarat claims that the appellants nos. 3 to 6 in Criminal Appeal No. 666/1993 and the two acquitted accused i.e. respondents nos. 3 and 4 in Criminal Appeal No. 746/1993 ought to have been convicted of the offences punishable u/Ss. 302, 307 and 326 of the Indian Penal Code with the aid of section 149 of the Indian Penal Code. As common questions of facts and law arise for our consideration in these two appeals, we propose to dispose them of by this common judgment. 2. One Haji Mahmad Husenbhai is having his tailoring and cloth shop in Devadiwala building and is residing near Saiyed Sahab Baba Dargah in Jamalpur area of Ahmedabad city. He had five sons. Their names were (1) Yunus, (2) Yasin, (3) Yusuf, (4) Faruk and (5) Firoj. Except Firoj all the sons of Haji Mahmad Husenbhai at the relevant time were married. In Jamalpur area there is one Masjid known as Kachni Masjid. One Munnabhai Ghasletwala staying in Devadiwala building was running Vishi in the area and about 40 to 50 persons had become its members. Each member was required to deposit Rs.100/- per month and on the 12th of every month, the amount collected was offered for bid. As per the prevailing practice, the amount collected per month used to be offered to the person who used to give the lowest bid. In the said Vishi son of the complainant Haji Mahmad i.e. Yunus was also a member. On January 12, 1991 at about 8.00 p.m. near Kachni Masjid, the members of the said Vishi had gathered together at the office of Mitra Mandal, where the bid was to take place. The proceedings of the meeting had started and Yunus had offered his bid of Rs.3,000/- in the Vishi. At that time Akbar Abdul Karim, who was also one of the members of the Vishi, had objected against the bid offered by Yunus making grievance that Yunus was taking amount collected during one month on all occasions and had also abused him. In view of the objection raised by Akbar Abdul Karim the meeting was treated as over. Thereafter, Yunus had gone to his father's shop at 9.45 p.m. and informed him that because of the objection raised by Akbar Abdul Karim, he was not given the amount though his bid was lowest and that Akbar Abdul Karim had quarrelled with him. The father of Yunus i.e. complainant Haji Mahmad Husenbhai had, therefore, gone to the residence of Abdul Karim, who is father of Akbar Abdul Karim, but as Abdul Karim was not at his house, he had gone near the office of Mitra Mandal where the convicted appellants and others were standing. The complainant tried to know from Munnabhai, who was managing the affairs of Vishi as to what had happened to the money collected during the course of month. Munnabhai replied Haji Mahmad Husenbhai that his son was taking the amount of bid on every occasion and, therefore, Akbar and his brothers had abused him and that the meeting was dissolved. The complainant had, therefore, asked Gulam Husen Abdul Karim Choudhary as to why he was abusing his son Yunus and thereupon Gulam Husen Abdul Karim had replied that he had not abused his son. At that point of time two sons of the complainant i.e. Firoj and Faruk as well as nephew of the complainant i.e. Aslam Musabhai had come at the place of incident. As the convicted appellants and others were scolded, they had got agitated and Gulam Husen Abdul Karim i.e. convicted appellant no. 1 in Criminal Appeal No. 666/1993 had caused injury with a knife on the hand of Firoj, whereas Akbar Choudhary i.e. convicted appellant no. 3 in Criminal Appeal No. 666/1993 had caused injuries on left hand fingers of the complainant Haji Mahmadbhai. As the complainant himself and his son were injured, the complainant had asked his sons and nephew to come with him at the police station for lodging complaint against the convicted appellants and others. When the complainant and his relatives had come on the road near his shop, at that time the convicted appellant no. 1 inflicted two knife blows on left side of the chest of Yasin and, therefore, Yasin had fallen down on the ground. Further the convicted appellant no.2 had caused knife injury on waist of another son of the complainant i.e. Firojbhai, as a result of which he had also fallen down. Thereafter, the convicted appellant no. 3 had delivered blow with pipe to Firoj who was trying to get up whereas the convicted appellant no. 4 had given blow with Soda water bottle on the head of Yunus. It is also the case of the prosecution that Akbar Husen i.e. the convicted appellant no. 2 had given knife blow on shoulder of Yunus, whereas the convicted appellant no. 1 had given pipe blow to Yunus and the convicted appellant no. 5 had given knife blow on left side abdomen of Faruk. As per the case of the prosecution, the convicted appellant no. 6 had given one knife blow to Faruk and when Aslam, who is nephew of complainant Haji Mahmad had tried to save Faruk , Akbar Husen i.e. convicted appellant no. 2 had given fist blow on the back of neck of Aslambhai. According to the prosecution, the brothers of appellant no. 2 i.e. the respondent nos. 3 and 4 in Criminal Appeal No. 746/1993, had also come to the place of incident and given kick and fist blows to the injured. Meanwhile, Yasin had profuse bleeding and, therefore, son in law of the complainant had removed him in a rickshaw to V.S. Hospital for treatment. In another rickshaw Aslam, injured Firoj, Faruk , etc. were also removed to V.S. Hospital. During the course of treatment Yasin and Firoj succumbed to their injuries. Therefore, Haji Mahmad Husenbhai had lodged his complaint with Police Inspector, Gaekwad Haveli Police Station, Ahmedabad. In the course of investigation that followed, usual steps for holding inquest, preparing panchnamas of scene of offence, seizure of blood stained clothes were taken and the two dead bodies were sent to the Medical Officer for autopsy. All the injured were also treated. Certain incriminating weapons were recovered at the instance of some of the accused persons during investigation. On completion of investigation, the police had submitted chargesheet and in usual course the case was committed to the City Sessions Court for trial, where it was numbered as Sessions Case No. 149/1991. 3. The charge at Exh.1 was framed against 8 accused of the offences punishable u/Ss. 147, 148, 302, read with section 149, 307 read with sections 149, 323, 504 read with sec. 149 of the Indian Penal Code as well as section 135 (1) of the Bombay Police Act. The charge was read over to the accused who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Yunusbhai Haji Mahmad P.W.1 Exh. 22 (2) Aslam Musabhai Chhipa P.W.2 Exh. 23, (3) Farookbhai Haji Mahmad P.W.3 Exh. 24, (4) Dr. Madhurikaben Sundarjibhai Panchal P.W. 4 Exh. 25, (5) Bharatkumar Dahyabhai Lauva P.W.5 Exh.28, (6) Haji Mahmad Husenbhai Chhipa P.W. 6 Exh.31, (7) Sifayatulla alias Munnabhai Vahidulla Ghasletwala P.W.7 Exh.32, (8) Dr. Dushyant Chandravadan Dave P.W.8 Exh.33, (9) Himanshubhai Mahendrabhai Acharya P.W.9 Exh.37, (10)Ismailbhai Daudbhai P.W.10 Exh.39, (11) Amanullakhan Hasanbhai Pathan P.W.11 Exh.41, (12) Mahmadumar Abdul Karim P.W.12 Exh. 43, (13) Dr. Jayram Premchand Parmar P.W.13 Exh.45, (14) Aaiyub Abdulbhai Halvawala P.W.14 Exh. 49, (15) Irfankhan Hasankhan Pathan P.W.15 Exh. 51, (16) Gulabnabi Aminbhai P.W.16 Exh. 53, (17) Ahmedbhai Ramjanbhai P.W.17 Exh.55, (18) Makdum Abdul Raheman Shaikh P.W.18 Exh.57 (19) Aaiyubmahmad Sharif P.W.19 Exh. 59 and (20) Baldevsing Kalyansing Kumpavat P.W.20 Exh. 61 to prove its case against the accused. The prosecution also produced documentary evidence such as inquests held on dead bodies of the two deceased, discovery panchnamas prepared u/S. 27 of the Indian Evidence Act, report of the Serologist, post mortem notes of deceased Yasin and deceased Firoj prepared by Dr. Madhurikaben Panchal, injury certificates of injured witnesses, panchnama of place of occurrence, arrest panchnamas of the accused, complaint lodged by complainant Haji Mahmad, etc. in support of its case against the accused. The accused examined Kiritbhai Madhusudan Thakkar as Defence Witness No. 1 at Exh. 67. 4. After recording of prosecution witnesses was over, the Ld. Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by section 313 of the Code of Criminal Procedure. In their further statements, all the accused denied the case of the prosecution. 5. On appreciation of evidence led by the prosecution, the Ld. Judge held that it was proved beyond reasonable doubt that deceased Yasin and deceased Firoj had died homicidal deaths. The Ld. Judge referred to the evidence of injured eye witnesses and found that their evidence was reliable as well as trustworthy. The Ld. Judge held that it was not proved by the prosecution that the common object of all the accused was either to commit murder of deceased Yasin or deceased Firoj or to cause injury to Faruk . Placing reliance on the evidence of injured witnesses the Ld. Judge deduced that the appellant no. 1 had caused death of deceased Yasin, whereas the appellant no. 2 had caused the death of deceased Firoj and that both the appellants were liable to be convicted of the offence punishable u/S. 302 of the Indian Penal Code. The Ld. Judge further held that commission of offences by all the convicted accused u/S. 147 and 148 of the Indian Penal Code was established by the prosecution and that it was proved by the prosecution that the convicted appellants nos. 3 to 6 had committed offence punishable u/S. 326 read with sec. 149 of the Indian Penal Code. Further the Ld. Judge deduced that it was proved by the prosecution that the appellant no. 5 had committed offence punishable u/S. 307 of the Indian Penal Code. The Ld. Judge noticed that no cogent and reliable evidence was adduced by the prosecution that any offence was committed by respondents nos. 3 and 4 in Criminal Appeal No. 746/1993. In view of the above referred to conclusions, the Ld. Judge has convicted the appellants in Criminal Appeal No. 666/1993 and imposed punishment referred to earlier; whereas the Ld. Judge has acquitted the respondents nos. 3 and 4 in Criminal Appeal No. 746/1993, giving rise to the present two appeals. 6. Mr. M.M. Tirmizi, learned counsel for the convicted appellants as well as respondents in acquittal appeal, submitted that the prosecution has not examined independent witnesses in this case and, therefore, interested version of the incident as given by the prosecution witnesses should be disbelieved by the Court. The learned counsel submitted that it is not satisfactorily proved by the prosecution that the convicted appellants as well as the respondents in acquittal appeal had knowledge that murders were likely to be committed by some of the convicted appellants and, as common object as mentioned in section 149 of the Indian Penal Code does not stand established, each accused should be held liable for his own act and the appeal should be accepted. According to the learned counsel for the accused, the evidence of the prosecution witnesses establishes that a sudden quarrel had taken place between the accused on one hand and complainant and his relatives on the other and, therefore, section 149 of the Indian Penal Code would not be attracted to the facts of the present case. The learned counsel for the accused pleaded that the appellant no. 2 had not taken undue advantage at all and he having inflicted only one blow to deceased Firoj, the offence committed by him would be punishable under Part-I of Section 304 of the Indian Penal Code and as he has undergone imprisonment of 12 years by this time, the imprisonment undergone should be imposed on him for the commission of the offence punishable u/S. 304 Part-I of the Indian Penal Code. The learned counsel pointed out that the convicted appellant no. 3 had caused, according to the prosecution, injuries on fingers of complainant Haji Mahmadbhai, but complainant Haji Mahmadbhai has sustained only minor injuries and was not even admitted in the hospital for treatment and as the appellant no. 3 had not caused injury to any one else, his conviction should be altered to one u/S. 323 of the Indian Penal Code. The learned counsel argued that though it is the case of the prosecution that the convicted appellant no. 3 had caused injury to deceased Firoj by means of a pipe, no contused lacerated wound was found on the person of Firoj when his post mortem examination was carried out and, therefore, the convicted appellant no. 3 would be liable only for causing injury to the complainant Haji Mahmadbhai. Further it was claimed that the appellant no. 4 is alleged to have caused injury to injured Yunus with a Sola water bottle and pipe as well as injury to Aslam, but the evidence on record establishes that injured Yunus was discharged on 3rd day of his admission in the hospital; whereas injured Aslam was discharged within a day from the hospital and thus appellant no. 4 having not caused any grievous hurt to any one, his conviction is liable to be altered to one u/S. 324 of the Indian Penal Code. According to the learned counsel for the accused, the appellant no. 5 had caused one knife injury on abdomen of injured Farukbhai, but as his intention was not to cause murder of Farukbhai, his conviction of the offence punishable u/S. 307 should be altered to one u/S. 326 of the Indian Penal Code. It was also claimed that the appellant no. 6 is alleged to have caused one knife blow on hand of Faruk, which was not found to be serious at all and, therefore, the conviction of the said appellant of the offence punishable u/S. 326 of the Indian Penal Code should be altered to one punishable u/S. 324 of the Indian Penal Code. The learned counsel for the convicted appellants submitted that appellant no. 3 should be convicted u/S. 323 of the Indian Penal Code and as he has undergone imprisonment of about 31 months, no further punishment should be imposed on him, whereas as the appellant no. 4 and appellant no. 6 have undergone imprisonment of 5 months, the punishment of imprisonment already undergone should be imposed on them for having committed the offence punishable u/S. 324 of the Indian Penal Code. The learned counsel further pointed out that the convicted accused no. 7 whose conviction deserves to be altered to one u/S. 326 of the Indian Penal Code, has already undergone imprisonment of 5 months and, therefore, for the said offence he should be punished with imprisonment already undergone because of lapse of time between his conviction and the date on which the appeal is taken up for final hearing. The learned counsel lastly pleaded that the reasons given by the Ld. Judge for convicting the convicted appellants of the major offences are contrary to the evidence adduced by the prosecution and the appeal filed by the convicted appellants should be accepted. So far as acquittal appeal is concerned, the learned counsel emphasized that no case is made out by the prosecution for application of provisions of section 149 of the Indian Penal Code to the facts of the present case and as respondents nos. 3 and 4 in the acquittal appeal were merely present at the place of incident, their acquittal being well founded, should be confirmed by the Court. 7. Mr. D.P. Joshi, Ld. APP contended that the common object of the convicted appellants as well as acquitted respondents in acquittal appeal was to cause the murder of the deceased as well as to cause grievous hurt and attempt to murder Faruk and, therefore, the common object having been established, all the accused ought to have been convicted u/S. 302 with the aid of section 149 of the Indian Penal Code. According to the Ld. APP, the evidence of the prosecution witnesses is not only consistent, trustworthy and cogent, but is also supported by medical evidence on record and, therefore, the prosecution case cannot be thrown overboard as claimed by the learned counsel for the accused on the ground that independent witnesses have not been examined in this case. What was highlighted by the learned counsel was that the appellant no. 2 had caused injury to deceased Firoj with a dangerous weapon on vital part of the body and, therefore, conviction of the said appellant of the offence punishable u/S. 302 of the Indian Penal Code being just, should be upheld. The learned counsel further submitted that the appellant no. 5 had caused injury by knife blow on abdomen of injured Faruk, who was required to be operated and whose injury was found to be of grievous nature by the doctor and, therefore, his conviction of the offence punishable u/S. 307 of the Indian Penal Code should also be upheld by the Court. Further according to the Ld. APP, rest of the convicted appellants had caused different injuries to injured witnesses by means of weapons like pipe, Soda water bottle, etc. and, therefore, their conviction of the offences punishable u/S. 326 read with section 149 of the Indian Penal Code should be maintained by the Court. The learned counsel lastly pleaded that there is no merits in the conviction appeal and, therefore, the same should be dismissed; whereas acquittal appeal filed by the State Government should be accepted by the Court, as common object contemplated by section 149 of the Indian Penal Code is successfully established by the prosecution. 8. We have considered the arguments advanced at the bar and reappreciated the whole evidence on record. The evidence of injured Yunus Haji Mahmad P.W. 1 is recorded at Exh.22. His evidence indicates that since childhood he was residing near Saiyedbabani Dargah situated in Jamalpur area of Ahmedabad city. According to him, he was residing with his brothers, parents and wife. The witness has stated that in his locality a Vishi was being run in the name and style of Unity Mitra Mandal and that he was one of the members of the said Vishi. According to this witness, he had enrolled 21 members and that each member was required to deposit a sum of Rs.100/- per month and draw of the Vishi amount collected was taking place on 12th of next month. The witness has informed the Court that on January 12, 1991 monthly draw was arranged in the office of Unity Mitra Mandal and that he had offered lowest bid regarding amount collected, but Akbar and Gulamhusen had objected and they had quarrelled with him. According to this witness because of the objection taken by Akbar and Gulamhusen, the meeting was dissolved and he was not given the amount collected during the month and that he had, therefore, informed about the same to his father Haji Mahmad. The witness has stated that thereafter his father had gone to the house of father of Akbar, but as father of Akbar was not available, his father had gone to the office of Unity Mitra Mandal, where Gulamhusen, Sadikhusen and Akbar Chaudhary were standing and that they were scolded by his father. According to this witness, he was following his father and had also come near the office of Unity Mitra Mandal and his brother Firoj had also come there and that Gulamhusen i.e.the convicted appellant no. 1 had given blow with knife on the hand of his brother Firoj. What is claimed by this witness is that at that time Akbar Abdul Rajak i.e. the convicted appellant no. 3 had tried to cause injury to his cousin Aslam Musabhai and when his father had tried to save Aslam, his father had received injury on his left hand finger. The witness has further stated that thereupon his father had suggested to file criminal complaint against Gulamhusen Chaudhary and others and when they were passing on the road, the appellant no. 1 had inflicted knife blows on the neck and chest of his brother Yasin, as a result of which, his brother had fallen down. The witness has further stated that thereafter the appellant no. 2 had caused knife injury on the waist of his brother Firoj, as a result of which he had also fallen down and that Akbar Chaudhary i.e. the appellant no. 3 had caused injury to his brother Firoj by means of a pipe. According to this witness, the appellant no. 4 had caused injury on his head by hitting a Soda water bottle,