CR.A/1081/1999 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1081 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE 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 ? ============================================== = ABDUL RAOOF ABDUL KADER SHAIKH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ============================================== = Appearance : MR JB PARDIWALA with MR SHAUKAT A SHAIKH for the appellant. MR KP RAVAL, APP, for the respondent-State. ============================================== = CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 22/12/2006 ORAL JUDGMENT CR.A/1081/1999 2/34 JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Present appeal arises out of a judgment and order rendered by learned Additional Sessions Judge, Court No.4, Ahmedabad, in Sessions Cases Nos. 45 and 46 of 1998, whereby present appellant-Abdul Raoof Abdul Kader Shaikh came to be convicted for offences punishable under Section 302 of Indian Penal Code and Sections 25(1)(f) and 27 of the Arms Act, and accused-Gulammohmad alias Gulal alias Aarif Abdulla Shaikh came to be acquitted for the said offences. 1.1 The charges against the appellant and acquitted accused Gulammohmad were of having entered into a criminal conspiracy for the murder of Ganibhai Usmanbhai Chandmiya and of having murdered the said Ganibhai on 1st October, 1994, at about 1.45 P.M., near Honest Cold Drink House in Dariapur area of Ahmedabad, after going there on a motorcycle and firing shots at the deceased. 2. The Trial Court tried the two Sessions cases together as they were arising out of the same incident. The appellant was accused in Sessions Case No.45 of 1998 whereas the acquitted accused, Gulammohamad was the accused in Sessions case No.46 CR.A/1081/1999 3/34 JUDGMENT of 1998. The Trial Court came to a conclusion that the prosecution was not successful in establishing the charges against Gulammohamed alias Gulal alias Aarif Abdulla Shaikh and recorded his acquittal whereas it came to a conclusion that the offence of murder simpliciter was proved to have been committed by the appellant so also the offences under the Arms Act. The Trial Court awarded imprisonment for life for the offence of murder and imposed a fine of Rs.10,000/-, and in default thereof, to undergo simple imprisonment for three months. For the offence punishable under Section 25(1)(b) of the Arms Act, the Trial Court awarded rigorous imprisonment for two years and imposed a fine of Rs.2000/-, and in default thereof, to undergo simple imprisonment for one month. For the offence punishable under Section 27 of the Arms Act, the appellant is awarded rigorous imprisonment for three years and imposed a fine of Rs.3000/-, and in default thereof, to undergo simple imprisonment for one month. The learned Trial Judge directed the sentences to run concurrently. Being aggrieved by the said judgment and order, present appeal is preferred by convict-Abdul Raoof Abdul Kader Shaikh. 3. We have heard learned Advocate, Mr. J. B. Pardiwala, for the appellant and learned Additional Public Prosecutor, Mr. Raval, for the respondent-State. The record and proceedings are before us and we have been taken through the record and CR.A/1081/1999 4/34 JUDGMENT proceedings by both of them. 4. Learned Advocate, Mr. Pardiwala, has raised following contentions :- (1) That there is no direct evidence in the matter and the case rests on circumstantial evidence. (2) That the discovery of weapon by the appellant is one of such circumstances, but it could not have been the foundation of the prosecution case in absence of any other independent evidence to connect the appellant with the crime. (3) That the discovery Panchnama, if examined, would reveal that it does not disclose the authorship of concealment to the appellant-accused. That the discovery Panchnama was drawn during the course of investigation in another offence registered with Gomtipur Police Station at Crime Register No.I-149 of 1995 and, in the trial of that offence, the Court has not believed this Panchnama. (4) That the disclosure allegedly made by the appellant was in the month of November, 1995, whereas the appellant was in custody from May 1995, though in another offence. CR.A/1081/1999 5/34 JUDGMENT (5) That there is no evidence to show the ownership of the place of recovery of weapon or to show that the said property was in exclusive possession or under exclusive control of the appellant. On the contrary, the evidence is that there were several other persons who were occupying the said house. (6) That it cannot be believed that a man would retain such a weapon in his house for such a long time when it is an important clue of a crime. (7) That the prosecution has adduced evidence of two witnesses whose statements were recorded by learned Metropolitan Magistrate under Section 164 of the Code of Criminal Procedure. It was contended that these witnesses have retracted from their original stand and have not supported the prosecution. Though the learned Metropolitan Magistrate who recorded the statement was examined, he has proved only the recording part and not the contents. Those witnesses who did not support the prosecution case have been examined by the learned Public Prosecutor, but contents of the statements were not proved and brought on record the and, therefore, on record of the Court, the contents of the statements are not there. CR.A/1081/1999 6/34 JUDGMENT (8) It was further contended that statements under Section 164 of the Code of Criminal Procedure have been held to be not a substantive piece of evidence and they can be used only to contradict or corroborate the witness. (9) That the prosecution has not been able to establish the link between the accused and the offence in the sense that there is no evidence to show that the weapon was used by the appellant in commission of the offence in question nor are there circumstances which would lead to a legitimate inference that the appellant must have used the weapon for commission of the offence. (10) That, if the entire prosecution case is seen, the original case was that of conspiracy, which the prosecution failed to establish and the Trial Court also did not accept it. The case was that there were two assailants who were on a motorcycle, one of whom was the present appellant who fired shots at the deceased and the other was the acquitted accused. If the case of conspiracy or common intention is not believed by the Trial Court, then in absence of any other cogent material, conviction could not have been recorded. CR.A/1081/1999 7/34 JUDGMENT (11) That the Trial Court has committed an error in arriving at a presumption that because the weapon was recovered by the accused, it was used by him for the commission of the offence. The Trial Court overlooked the aspect that there were 13 months between the date of offence and the date of recovery. The Trial Court also overlooked the aspect that the appellant was in jail for last about six months. Learned Advocate, Mr. Pardiwala also submitted that, as the weapon was discovered by the accused, it was presumed to have been used by him in the commission of the offence. But there are no connecting circumstances from which a legitimate inference can be drawn that it was the appellant alone who must have used the weapon in commission of the offence. Guilt of the accused is not the solitary and conclusively established hypothesis and, therefore, the Trial Court committed an error in recording conviction. Learned Advocate, Mr. Pardiwala, relied on certain decisions, which we propose to consider in the paragraphs to follow while discussing the evidence. 5. Learned Additional Public Prosecutor, Mr. Raval, submitted that when making and recording of statements under Section 164 of the Code of Criminal Procedure are established; CR.A/1081/1999 8/34 JUDGMENT when there is evidence to establish that it was read over to the witness and the witness admitted the same and when the statements are accepted on record, it would amount to proof of contents of the statements and the Court may look into those statements. 5.1 Mr. Raval also contended that the discovery by the appellant is duly established. The discovery is from his residence and from a cupboard on 2nd Floor and only the appellant could have knowledge about the same. It is the case of the defence that the appellant knew about the existence of this weapon's author because he was so informed or because he had seen somebody concealing the weapon and, therefore, an inference may be drawn about the authorship of concealment being of the appellant. It was submitted that the weapon was sent to F. S. L. expert's opinion along with cartridges recovered from the place of incident and from the body of the deceased and a specific opinion has been expressed that they were cartridges of bullets fired from the weapon in question, i.e. muddamal Article No.28. Mr. Raval, therefore, submitted that there is discovery of a weapon by the accused which is concealed by him and there is evidence to show that the weapon discovered was the weapon which was used in commission of the offence. The necessary inference would be that it was the appellant who used the weapon at the time of commission of the offence and, therefore, CR.A/1081/1999 9/34 JUDGMENT the conviction is well founded and deserves to be sustained. Mr. Raval submitted that it is true that independent witnesses in the form of discovery Panch and the witnesses whose statements under Section 164 were recorded have turned hostile, but the execution of Panchnama is proved through the Investigating Officer. He is a Government Officer and has no axe to grind against the appellant. There is no reason for him to falsely implicate the appellant. Similarly, the factum of recording of statement under Section 164 of the Code of criminal Procedure is also established through deposition of the Metropolitan Magistrate. The statements are very much on record and may, therefore, be looked into. The prosecution has, therefore, established the complete chain of circumstances to link the accused with the crime and, therefore, the appeal may be dismissed confirming the conviction. 6. At the outset, we may state that except the Metropolitan Magistrate, police witnesses and the medical witnesses all other witnesses have not supported the prosecution case and were treated as hostile to the prosecution. In the instant case, the case depends on circumstantial pieces of evidence and there is no direct evidence to connect the appellant with the crime. The circumstances on which the prosecution has relied on to substantiate the charges against the appellant are that the appellant discovered firearm muddamal Article No.28 from his CR.A/1081/1999 10/34 JUDGMENT house in presence of Panch witnesses. That firearm, on being sent to the F. S. L. for inspection, is certified to be the weapon which fired the fatal shorts on the deceased at the time of the incident. 6.1 Witnesses-Saiyed Iftekhar Hakizudin Saiyed (Exhibit 34) and Mohmad Aarif Mohmad Hanifkhan (Exhibit 35) are the witnesses through whom an extra-judicial confession made by the appellant before them is sought to be established. The prosecution has, thus, tried to show that the appellant made an extra-judicial confession that he discovered the weapon and that there is ballistic expert's report which says that this very weapon was used in firing the fatal shots at the deceased. 7. As stated earlier, we find that most of the witnesses have turned hostile and, therefore, both the discovery Panch witnesses as well as Saiyed Iftekhar Hakizudin Shaikh (P.W.3- Exhibit 34) and Mohmad Aarif Mohmad Hanifkhan (P.W.4-Exhibit 35) have turned hostile. Witness-Rasheed Husain Abdul Razak (P.W.9-Exhibit 48), who was examined by the prosecution to show that the appellant had handed over two revolvers and cartridges to Ashrafkhan has also not supported the prosecution case and has turned hostile. Statement of this witness is also got recorded by learned Metropolitan Magistrate under Section 164 of the Code of Criminal Procedure like P.Ws. 3 and 4. CR.A/1081/1999 11/34 JUDGMENT 8. We find from the judgment of the Trial Court that the learned Trial Judge has placed reliance on discovery of the weapon by the appellant and on the ballistic expert's report and has come to a conclusion that because the weapon was discovered by the appellant, he was the person who could have used the weapon and ballistic expert's report indicates that this was the weapon used in commission of the crime and, therefore, the Trial Court has recorded conviction. 9. This Court, therefore, would be required to examine whether the evidence led by the prosecution establishes the complete chain of circumstances connecting the appellant with the crime and whether those circumstances are proved by cogent and reliable evidence. 10. In order that the evidence may be properly appreciated, certain basic facts of the case are required to be considered. The incident in question occurred on 1st October, 1994, at about 13.45 hours at the STD/PCO Cabin of Honest Cold Drinks situate at Popatiyawad of Dariapur area of Ahmedabad city. One Usmangani alias Hasubhai Shaikh was shot dead by two persons, who came there on motorcycle. The said two persons were, according to the prosecution, the present appellant and the acquitted accused, CR.A/1081/1999 12/34 JUDGMENT Gulammohmad alias Gulal alias Aarif Abdulkader Shaikh. As per the prosecution case, the motorcycle was driven by the acquitted co-accused and the appellant was the pillion rider who fired shots at the deceased and one of the bullets hit the deceased, which caused his death. As per the prosecution case, the two accused persons had entered into a criminal conspiracy and, pursuant thereto, committed the offence. The F. I. R. was lodged by one Mohmad Farooq Rahimbhai Shaikh, but he did not disclose names of the assailants. He described the physical appearance of the assailants and the manner in which the incident occurred. On the basis of the F. I. R. before Dariapur Police Station, offence was registered and investigation started. However, as the culprits could not be detected, the Investigating Officer filed Summary “A”. 10.1 Present appellant came to be arrested in connection with Gomtipur Police Station C.R.-I No.149 of 1995. While he was in police custody in connection with Gomtipur Police Station offence, he made certain disclosures, on the basis of which a discovery Panchnama under Section 27 of the Evidence Act was drawn and two fire arms (revolvers) came to be discovered at the instance of the appellant from his house No.1212 of Karoda Pole, Dariapur area from a steel almirah placed on the second floor of the house. The appellant came to be arrested in connection with the present offence on the basis of certain information received by the CR.A/1081/1999 13/34 JUDGMENT police. The investigation was reopened/restarted. The bullets recovered from the place of incident and from the body of the deceased along with the revolver, muddamal Article No.28, discovered by the appellant were sent to F. S. L. for the opinion of ballistic expert, who opined that the bullet recovered from the body of the deceased was fired from the revolver, muddamal Article No.28, discovered by the appellant. Statements of three witnesses, P.Ws. 3, 4 and 9 were recorded by the Investigating officer, which reveal that the appellant had made extra-judicial confession and transferred the possession of the weapon. Statements of these three witnesses were also recorded by the Metropolitan Magistrate under Section 164 of the Code of Criminal Procedure, so also statement of Jahangir Marzaban Patel, who was accused No.3 in Sessions Case No.45 of 1998. The said accused filed application (Exhibit 5) for discharge, which came to be allowed by order dated 7.4.1998 and, ultimately, the charge sheet came to be filed against the appellant and co-accused, Gulammohmad alias Gulal alias Aarif Abdulla Shaikh vide Exhibit 7 on 7.4.1998. Both the accused pleaded not guilty to the charge and claimed to be tried. 11. From the record, we find that, following witnesses have not supported the prosecution case and are treated as hostile :- (1) P.W.3-Saiyed Iftekhar Hafizuddin Saiyed (Exhibit 34). CR.A/1081/1999 14/34 JUDGMENT (2) P.W.4-Mahmad Aarif Hanifkhan Pathan (Exhibit 35). (3) P.W.5-Rajesh Amratlal Parmar (Exhibit 40). (4) P.W.6-Mahamad Rafik Mahamad Hanif Shaikh (Exhibit 43). (5) P.W.8-Shaukat Hussein Gulam Ahmed (Exhibit 46). (6) P.W.9-Rashid Husein Abdul Razak (Exhibit 48). (7) P.W.10-Maheshbhai M. Jantani (Exhibit 53). 12. The first question that we propose to deal with is whether the statements of Prosecution Witnesses 3, 4 and 9 recorded under Section 164 of the Code of criminal Procedure by the learned Metropolitan Magistrate can be used against the appellant herein. P.Ws. 3, 4 and 9 have not supported the prosecution case and have denied to have made any statement connecting the appellant with the crime. During cross-examination, they said that the statements before the learned Magistrate were made under coercion by the police. 12.1 The prosecution has examined the Metropolitan Magistrate, who recorded the statements. He is P.W.2 at Exhibit 18. He says that on 6.4.1996, witness-Mahmadarifkhan Mahmad Hanifkhan Pathan was brought to him with report Exhibit 20. He interrogated the witness regarding recording of statement and the witness indicated that he wanted to give a statement regarding whatever he knew. The witness was presented before him at 6.00 CR.A/1081/1999 15/34 JUDGMENT in the evening while he was in his chamber and he recorded the statement in his chamber itself. The concerned police officers were sent out of the room before recording the statement. Oath was administered and the statement of the witness was dictated by the learned Magistrate to his Stenographer, who recorded the same as per his dictation. The whole statement was read over to the witness after it was completed and the witness accepted the same. Thereafter, he obtained signature of the witness on both the sides of the pages. He also put his signature and designation. He identified the statement which came to be exhibited at Exhibit 21. 12.2 The witness then says that on 16th January, 1996, at 5.45 P.M., witness-Iftekhar alias Chhotu Hakizudin Saiyed was brought before him by Police Inspector, ATS, for recording statement under Section 164 of the Code of Criminal Procedure. He called the witness on the next day. On 17th January, 1996, the said witness was produced before him. He was interrogated and he expressed his willingness to give his statement. The statement given by the witness to the Magistrate was dictated by the Magistrate to his Stenographer, who typed the same as per his dictation. It contains the signature of the witness as well as his own signature and that statement is exhibited at Exhibit 24. 12.3 The witness says that on 8th April, 1996, at about 5.30 CR.A/1081/1999 16/34 JUDGMENT P.M., witness-Rasheed Husain alias Dolar Abdul Razak was produced before him by Police Inspector, ATS. He also expressed his willingness to give statement and, therefore, the witness recorded the statement of the said witness-Rasheed Husain and obtainted his signature. He says that all these statements were placed into an envelope and sent to the concerned judge in a concealed cover. The cross-examination of this witness reveals that the witnesses told him that they were brought from their home. 13. A look at the deposition of Saiyed Iftekhar Hakizudin Saiyed (P.W.3-Exhibit 34) would indicate that he has not supported the prosecution. He admits that police recorded his statement, but states that the said statement was given under coercion. He states that on 17th January, 1996, he was taken to the Court of learned Metropolitan Magistrate and his statement was recorded. He was, therefore, treated as hostile witness. During cross-examination to learned Public Prosecutor, he denied the suggestion of Raoof (appellant herein) handing over a bag containing revolver and cartridges to Aarif. He denies the suggestion that Abdul Raoof had asked him to preserve the revolver and cartridges and, thereafter, Abdul Raoof told him that he had committed murder of Ganibhai with that revolver as Ganibhai was police informant. This witness denies the suggestion that he had made same statements before the police as well as Metropolitan Magistrate. He denies to have made CR.A/1081/1999 17/34 JUDGMENT statement before the learned Metropolitan Magistrate on 17th April, 1996, as per the contents of Exhibit 24-statement, as recorded in paragraph 6 of the deposition. The witness has been cross- examined on behalf of the accused where he admits that he was beaten by Police and was asked to sign the statements before the Magistrate, failing which he and his brothers also would be arraigned as accused. He accepts the suggestion that he was taken to the learned Metropolitan Magistrate by Police from the ATS Office. He was also asked not to say anything about being beaten by the police. 13.1 Deposition of P.W. 4-Mahmad Aarif Hanifkhan (Exhibit 35) is on the same lines where he denies the suggestion that he stated before the learned Magistrate that Raoof had come to him with two revolvers and cartridges and stated before him that he along with Dulal had committed murder of Ganibhai with the help of the revolver and cartridges. He admits his signatures on Exhibit 21 before the learned Magistrate. He denies to have made any statement before police on 3.4.1996 containing the above aspects. During cross examination, he accepts a suggestion that he gave statement under police coercion and threat of involving in the case. 13.2 P.W.9-Rasheed Husain Abdul Razak (Exhibit 48) has also resiled although he admits to have gone to Metropolitan CR.A/1081/1999 18/34 JUDGMENT Magistrate on 8th April, 1996 and given statement. He admits his signatures on Exhibit 29 so also his left thumb mark. The contents of the statement Exhibit 29 are put to him during cross-examination to the Public Prosecutor, which he denies to have stated before the Magistrate. During cross-examination to the learned defence counsel, he says that he and his wife were called on 7.4.1996 in the office of Anti-Terrorist Squad and when he was taken to the Magistrate for statement, his wife was detained in the ATS office. He stated that he was threatened that, if he does not give the statement as desired, he and his wife would be involved in the case. 13.3 If the evidence of the Metropolitan Magistrate, Kashiram Joitaram Patel, (Exhibit 18) is read in context of this deposition, we find that the learned Magistrate indicates that he had satisfied himself that the witnesses were not giving the statement under threat or pressure or coercion. He states that he had recorded the statements as given by the witnesses and obtained their signatures. He also states that the statements were recorded as given by the witnesses, but we find that contents of none of the three statements recorded by the learned Magistrate are stated by the Magistrate in his deposition. He does not state as to what was stated by which witness. 14. Thus, in our opinion, the situation that emerges is that CR.A/1081/1999 19/34 JUDGMENT the witnesses deny to have made the statements, Magistrate says that he did record the statements, but he does not state the contents of the statements, although the statements are produced on record. 14.1 The Court has to examine whether these statements can be made use of against the accused-appellant. In this regard, we may refer to a decision of the Bombay High Court in the case of Audumbar Digambar Jagdane v. State of Maharashtra, 1999 Cri. L.J. 1936, where a Division Bench of the Bombay High Court took a view, on the basis of decision rendered by Privi Council reported in AIR 1946 PC 38, that a statement given under Section 164 of the Code of Criminal Procedure, even if proved, cannot be accepted as a substantive piece of evidence. Sir