CR.A/575/1997 1/82 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.575 of 1997 With CRIMINAL APPEAL No.525 of 1997 With CRIMINAL APPEAL No.526 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE J.R.VORA =============================================================== 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? =============================================================== MOHAMMED SALIM IBRAHIM QURESHI & ANR. - Appellants Versus STATE OF GUJARAT – Respondent. =============================================================== Appearance : MR YOGESH S LAKHANI Advocate for Appellants in Criminal Appeal No.575 of 1997 and for Respondents in Criminal Appeal Nos.525 of 1997 and 526 of 1997. MR HM PRACHCHHAK Additional Public Prosecutor for Respondent in Criminal Appeal No.575 of 1997 and Appellant in Criminal Appeal Nos.525 of 1997 and 526 of 1997. =============================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE J.R.VORA Date : 03-06/03/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) CR.A/575/1997 2/82 JUDGMENT Criminal Appeal No.575 of 1997 filed under Section 374(2) of the Code of Criminal Procedure, 1973 (“the Code” for short) is directed against judgment dated April 24, 1997 rendered by the learned Additional Sessions Judge, Court No.12, Ahmedabad, in Sessions Case No.140 of 1996 by which the two appellants, who were original accused Nos.1 and 2, have been convicted for commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code (“IPC” for short), and each sentenced to R.I. for life and fine of Rs.1,000/- (Rupees One Thousand Only), in default R.I. for three months, for gruesome murder of Ms.Geetaben Bachubhai Rambhiya, who was engaged in the activity of rescuing cattle, which were being sent to abattoir for illegal slaughtering. Criminal Appeal No.525 of 1997 is filed by the State Government under Section 377 of the Code wherein prayer is made to impose death sentence on the appellants in Criminal Appeal No.575 of 1997 for causing diabolical ghastly murder of Ms.Geetaben Bachubhai Rambhiya in broad daylight near C.N.Vidyalaya, Ambawadi, Ahmedabad, on August 27, 1993. Criminal Appeal No.526 of 1997 is filed by the State Government under Section 378 of the Code wherein acquittal of the appellants in Criminal Appeal No.575 of 1997 for commission of offence punishable under Section 135(1) of the Bombay Police Act, 1951 (“the Act” for short) is challenged. CR.A/575/1997 3/82 JUDGMENT As all the three appeals arise out of judgment dated April 24, 1997 rendered by the learned Additional Sessions Judge, Court No.12, Ahmedabad, in Sessions Case No.140 of 1996, this Court proposes to dispose them of by this common judgment. 2. The facts emerging from the record of the case are as under: Ms.Geetaben Bachubhai Rambhiya @ Shah was residing at 1140, Zumpadi Ni Pole, Mandvi Ni Pole, Manek Chawk, Ahmedabad, with her husband Bachubhai Shah. She was engaged in the activity of rescuing animals, which were being sent to abattoir for illegal slaughtering. She was appointed as an Honorary Inspector by Shri Akhil Bhartiya Hinsa Nivaran Sangh. She was also appointed as a Cattle Welfare Officer by Animals' Welfare Board of India, Madras. On August 27, 1993, she was patrolling in Ahmedabad City with her colleagues namely, Kansara Rakesh and Ketan Arvindbhai Shah, with a view to stopping vehicles carrying cattle, which were being sent to abattoir. When she was near Kot-Ni-Rang, Sarangpur, Ahmedabad, a loading rickshaw bearing registration No.GTH-7705 was stopped by her. On checking the rickshaw, she found that six calves were being taken to abattoir for slaughtering. On interrogation of the driver, she learnt that the cattle belonged to the appellant No.1, i.e. Mohmed Salim Ibrahim CR.A/575/1997 4/82 JUDGMENT Kureshi. She took the loading rickshaw with cattle and driver to Astodia Police Station and lodged her complaint against the driver of the loading rickshaw, i.e. Rajubhai Shivabhai Raval, and another person, who was with Rajubhai, for commission of offences punishable under Sections 335(1) and 378 of the Bombay Provincial Municipal Corporations Act, 1949. After lodging of the complaint, the cattle, which were six in number, were handed over to Ms.Geetaben to be lodged at Panjarapole, Ahmedabad. Therefore, Ms.Geetaben requisitioned services of Gogaji Surajmal to carry the cattle from Astodia Police Station to Panjarapole, Ahmedabad. Accordingly, Gogaji Surajmal with his loading rickshaw went to Astodia Police Station and met Ms.Geetaben as well as one Hiteshbhai Patel, who was also working in Shri Akhil Bhartiya Hinsa Nivaran Sangh of which, Ms.Geetaben was Honorary Inspector. At Astodia Police Station, the cattle were placed in the loading rickshaw of Gogaji Surajmal. Gogaji Surajmal in the company of one policeman from Astodia Police Station proceeded towards Panjarapole, Ahmedabad whereas Ms.Geetaben and Hitesh Patel proceeded towards Panjarapole in another auto-rickshaw. On way to Panjarapole, the policeman, who was sharing the driver's seat, alighted near Town Hall. Therefore, Ms.Geetaben disengaged her rickshaw and occupied part of driver's seat of loading rickshaw of Gogaji whereas Hitesh Patel sat in the loading portion of the rickshaw. The loading rickshaw thereafter was taken to Panjarapole, Ahmedabad. At Panjarapole, Ms.Geetaben contacted CR.A/575/1997 5/82 JUDGMENT the concerned officer and left the six cattle to the care of Panjarapole. At the instance of Ms.Geetaben, Gogaji and Hitesh Patel took tea from a road side Tea-Stall. Thereafter, Gogaji drove his rickshaw towards C.N.Vidyalaya. At that time, Ms.Geetaben was siting by the side of driver whereas Hitesh was occupying the loading portion of the rickshaw. Before the rickshaw could reach bus stand located near C.N.Vidyalaya, a scooter on which the two persons were sitting, overtook the rickshaw. The scooter was stopped in front of the loading rickshaw and, therefore, driver Gogaji had no option, but to halt his loading rickshaw. The moment the rickshaw was halted, the appellant No.1, who was driving the scooter, left the scooter and rushed towards Ms.Geetaben with a pistol shaped big knife in his hand. On seeing this, Ms.Geetaben, who was occupying the part of the driver's seat, came out of the rickshaw and started running for her life. The appellant No.1 chased her and overtook her within no time. The appellant No.1 thereafter inflicted blows with knife on Ms.Geetaben. Meanwhile, the pillion rider also took out a knife lying in the dickey of the scooter and both the appellants started inflicting indiscriminate blows on Ms.Geetaben. It may be stated that the place where the incident took place is a busy thoroughfare. Meanwhile, Police Constable Radheshyam Chhotelal, who was serving at Chhadavad Police Chowky attached to Ellisbridge Police Station, was going for performing his patrolling duty near Kameshwar Flats at about 2.00 p.m. He CR.A/575/1997 6/82 JUDGMENT witnessed that the loading rickshaw was kept opposite the bus stand near C.N.Vidyalaya and a person was inflicting knife blows on a woman. Therefore, he rushed to the spot where the incident was taking place and challenged the person, who was inflicting the blows on Ms.Geetaben. The person, who was inflicting the blows made an attempt to escape on the scooter with another who was with him. However, Police Constable Radheshyam Chhotelal caught him by hair as a result of which, the appellant No.1 fell down and the appellant No.2 who was with the appellant No.1 started running towards Excise Chowky, Ambawadi. An attempt was made by the appellant No.1 to mount an assault on Police Constable Radheshyam, but on seeing the incident, one SRP Jawan rushed to the place in question and aimed his loaded rifle at the appellant No.1 asking him to raise his hands. The appellant No.1 had no option but to raise hands and after he had raised his hands, the bloodstained pistol shaped knife was taken away by Police Constable Radheshyam Chhotelal from him. Meanwhile Police Jamadar Jashuji Takhuji, who was present at Chhadavad Police Chowky which is quite near the place of incident, was informed by some one that one person had inflicted blows on a woman and was fleeing towards Ambawadi Excise Chowky. On learning this, Police Jamadar Jashuji Takhuji left the Police Chowky and started chasing the said person. He found that the person, who had made an attempt to flee, was caught by members of the public and was being beaten. He, therefore, caught the person and brought him CR.A/575/1997 7/82 JUDGMENT to Chhadavad Police Chowky. The person caught by Police Jamadar Jashuji Takhuji is the appellant No.2 in Criminal Appeal No.575 of 1997. When Police Jamadar Jashuji Takhuji brought the appellant No.2 in Criminal Appeal No.575 of 1997 to Chhadavad Police Chowky, he found that Police Constable Radheshyam was sitting in the chowky with the appellant No.1 in Criminal Appeal No.575 of 1997. Police Constable Radheshyam Chhotelal and Police Jamadar Jashuji Takhuji brought the appellants to Ellisbridge Police Station from Chhadavad Police Chowky. Meanwhile, injured Geetaben was removed to V.S.Hospital for treatment. At V.S.Hospital, CMO Dr.Rakesh N. Patel examined injured Geetaben and declared her as brought dead. Dr.Rakesh N. Patel, in turn, informed Jamadar Jethabhai, who was discharging duties at V.S.Hospital, that injured Geetaben was brought dead. Therefore, Jamadar Jethabhai conveyed the message to PSO Mr.Sabursinh of Ellisbridge Police Station that injured Geetaben, who was brought at the hospital for treatment was declared dead by the CMO of the hospital at 14.55 hours on August 27, 1993. The information received was conveyed by PSO to PI of the Police Station, who was at his residence and on the instructions of the PI, PSI Mr.Parmar of Ellisbridge Police Station went to V.S.Hospital, Ahmedabad. Mr.Surendrasinh Gambhirsinh Gohil, who was then PI of Ellisbridge Police Station, on learning about the incident from PSO of the Police Station went to Ellisbridge Police Station. Regarding the incident of murder of deceased Geetaben, complaint was lodged CR.A/575/1997 8/82 JUDGMENT by Police Constable Radheshyam Chhotelal before PI Mr.Gohil. On the basis of the complaint of Police Constable Radheshyam, offences were registered against the appellants and others. At V.S.Hospital, PSI Mr.Parmar held inquest on the dead body of the deceased and made arrangements for sending the dead body of the deceased for postmortem examination. The big knife and another knife produced by the appellants which were bloodstained were seized under a panchnama. Under the same panchnama, condition of person of each of the appellants was noted and clothes put on by them, which were found to be bloodstained, were also seized. The said panchnama was drawn on August 27, 1993 between 17.15 hours and 18.15 hours. As the appellants had sustained minor injuries, they were referred to V.S.Hospital for medical examination. The Investigating Officer also drew the panchnama of place of incident. At the place of incident, a hunter was found lying, which was seized. The scooter, on which the appellants had come and intercepted the rickshaw in which the deceased was travelling, was also seized. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory for analysis. The Investigating Officer recorded statements of those persons, who were supposed to be conversant with the facts of the case. Witness Gogaji was not available at his house as he had left his house out of fear. The Investigating Officer could contact him only after six days of the day of the incident. His statement was recorded and a yadi was sent to CR.A/575/1997 9/82 JUDGMENT Executive Magistrate Mr.Parmar to hold identification parade. Accordingly, identification parade was held on September 3, 1993 where witness Gogaji identified the two appellants as assailants of deceased Geetaben. The investigation further revealed that a conspiracy was hatched by the appellants with four others, i.e. (1) Iqbal Yakubbhai Kureshi @ Haji Iqbal; (2) Gulam Gosh @ Gosiyo Langado Abdulrasheed Kureshi; (3) Mohmed Iqbal @ Iqbal Chinabhai Mohmed Hanif Kureshi; (4) Salim Ahmed @ Babakhan Ibrahimbhai Kureshi, to kill deceased Geetaben and, therefore, they were also arrested. On completion of investigation, the appellants and four others were chargesheeted in the Court of learned Metropolitan Magistrate Court No.15, Ahmedabad, for commission of offences punishable under Section 302 read with Section 120B IPC and Section 135(1) of the Act. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Ahmedabad City, for trial where it was numbered as Sessions Case No.140 of 1996. 3. The learned Additional Sessions Judge, Court No.12, Ahmedabad City, to whom the case was made over for trial, framed necessary charge against the appellants and four other accused at Exh.9. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) Dr.Dineshbhai Savjibhai Chandana as P.W.-1 at Exh.17; (2) complainant, i.e. Police CR.A/575/1997 10/82 JUDGMENT Constable Radheshyam Chhotelal as P.W.-2 at Exh.21; (3) Dr.Ravindra Shrikrishna Bhise as P.W.-3 at Exh.23; (4) eye witness Police Jamadar Jashuji Takhuji as P.W.-4 at Exh.25; (5) eye witness Gogaji Surajmal as P.W.-5 at Exh.27; (6) Nizamuddin Gyasuddin Shaikh as P.W.-6 at Exh.29; (7) Police Constable Jethabhai Khengarbhai as P.W.-7 at Exh.31; (8) Labour Contractor Haribhai Govindbhai as P.W.-8 as Exh.33; (9) Dineshbhai Laljibhai as P.W.-9 at Exh.35; (10) Babulal Mohanlal as P.W.-10 at Exh.37; (11) Dineshbhai Bhavanbhai as P.W.-11 at Exh.39; (12) Saburbhai Gambhirbhai as P.W.-12 at Exh.42; (13) Investigating Officer i.e. PI Mr.Surendrasinh Gambhirsinh Gohil as P.W.-13 at Exh.45; and (14) Executive Magistrate Mr.Jageeshbhai Sunderlal Parmar as P.W.-14 at Exh.50, to prove its case against the appellants and other accused. The prosecution also produced documentary evidence such as; inquest report at Exh.14; panchnama indicating seizure of the clothes of the deceased at Exh.15; injury certificate of Police Constable Radheshyam Chhotelal Lahori issued by Dr.Chandana at Exh.18; injury certificate of the appellant No.2 in Criminal Appeal No.575 issued by Dr.Chandana at Exh.19; certificate indicating injuries sustained by the appellant No.1 in Criminal Appeal No.575 of 1997 issued by Dr.Chandana at Exh.20; complaint lodged by police constable Radheshyam at Exh.22; postmortem report prepared by Dr.Bhise at Exh.24; extract of entry made at Ellisbridge Police Station pursuant to the information conveyed by Dr.Rakesh N. Patel to Police Jamadar CR.A/575/1997 11/82 JUDGMENT Jethabhai at Exh.32; panchnama of place of incident at Exh.34; panchnama of collection of blood samples of the two appellants at Exh.36; panchnama indicating arrest of the appellants and seizure of blood-stained weapons produced by them as well as their bloodstained clothes at Exh.38; panchnama indicating seizure of the bloodstained clothes of Hitesh at Exh.40; extract of entry made in Police station diary pursuant to the information sent by Dr.Patel at Exh.43, notification issued by the competent authority under the provisions of Section 37 of the Act at Exh.44; report of FSL at Exh.48; panchnama indicating that identification parade was held by Executive Magistrate Mr.Parmar and that the appellants were identified by witness Gogaji as assailants of the deceased at Exh.52, etc. in support of its case against the appellants and others. 4. After recording of the prosecution witnesses was over, the learned Judge of the trial Court explained to the appellants and other accused the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In his further statement, the appellant No.1 in Criminal Appeal No.575 of 1997 claimed permission to produce certain documents. One of the documents was an application dated April 9, 1997 made by the appellants. In the application, it was stated that no evidence worth the name was adduced by the prosecution against the original accused Nos.3 to 6 to CR.A/575/1997 12/82 JUDGMENT substantiate charge of conspiracy levelled against them and, therefore, they should be acquitted. It was claimed that deceased Ms.Geetaben was known to Dr.Pravin Togadiya, who was President of Vishwa Hindu Parishad, and as the Police had investigated the case as desired by Dr.Togadiya, the prosecution case should not be accepted. It was mentioned in the application that out of 64 witnesses mentioned in the charge-sheet, only few were examined with an oblique motive and, therefore, the case of the prosecution should be disbelieved. According to the appellants in Criminal Appeal No.575 of 1997, the incident had not taken place at about 2-55 hours as claimed by the prosecution, but had happened subsequently and, therefore, the prosecution case should not be believed. It was mentioned in the said application that the investigation papers indicated that the appellant No.1 in Criminal Appeal No.575 of 1997 had handed over the pistol shaped knife to Constable Radheshyam, but, in fact, the knife found lying on the ground was picked up, which makes the case of the prosecution against the accused doubtful. It was stated in the application that Hitesh, who was travelling with deceased Ms.Geetaben in the rickshaw, was not examined with an oblique motive and, therefore, an adverse inference should be drawn against the prosecution. By filing the said application, it was emphasised that the accused were innocent and should be acquitted. In his further statement recorded under Section 313 of the Code, the appellant No.2 in Criminal Appeal No.575 of CR.A/575/1997 13/82 JUDGMENT 1997 claimed that his case would be explained to the Court by his learned lawyer. The further statements of other accused were also recorded by the learned Judge, but no specific defence was pleaded by them. It is relevant to notice that though the appellant Nos.1 and 2 had submitted a detailed application taking up several defences and contentions, no defence evidence was adduced by any of them at all. 5. On scrutiny of the evidence led by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that Ms.Geetaben Bachubhai Rambhiya died a homicidal death. The learned Judge carefully considered the testimony of three witnesses namely; (1) complainant Radheshyam Chhotelal recorded at Exh.21; (2) Police Constable Jashuji Takhuji recorded at Exh.25; and (3) eye witness Gogaji Surajmal recorded at Exh.27, and concluded that their evidence was cogent, trustworthy and free from any serious infirmity. Placing reliance on their evidence, the learned Judge held that it was proved by the prosecution beyond pale of doubt that the appellants had inflicted knife blows on the deceased and murdered her. The plea that police statement of eye witness Gogaji Surajmal was recorded after six days and, therefore, his testimony should not be relied upon, was not accepted by the learned Judge of the trial Court. The learned Judge also negatived the contention of the defence that for non- examination of several witnesses, a case was made out by the CR.A/575/1997 14/82 JUDGMENT defence for drawing adverse inference against the prosecution. The plea that the incident had not taken place at 2.30 p.m., but had taken place subsequently on the day of incident was also rejected by the learned Judge. The learned Judge held that witness Gogaji had seen the whole incident and had correctly identified the appellants in Criminal Appeal No.575 of 1997 as perpetrators of crime at the identification parade. The learned Judge noticed that the contents of report of FSL produced by the prosecution at Exh.48 and held that find of same group of blood as that of the deceased on the clothes of the appellants and weapons recovered from them established that the appellants were in close proximity of the deceased when the deceased was fatally wounded. The learned Judge further held that it could not be proved by the prosecution that a criminal conspiracy was hatched by the appellants in Criminal Appeal No.575 of 1997 with rest of accused to murder deceased Geetaben and, therefore, charge under Section 120B IPC was not proved. The learned Judge also noticed that it was not proved by the prosecution that Notification under Section 37 of the Act prohibiting use of dangerous weapons mentioned therein was issued by the competent authority and held that the appellants were not liable to be convicted for commission of offence under Section 135(1) of the Act. In view of abovereferredto conclusions, the learned Judge convicted the appellants in Criminal Appeal No.575 of 1997 for commission of offence punishable under Section 302 read with Section 34 IPC and CR.A/575/1997 15/82 JUDGMENT acquitted the rest of the four accused. The learned Judge of the trial Court thereafter heard the learned counsel of the parties on the question of sentence to be imposed on the appellants for commission of offence punishable under Section 302 read with Section 34 IPC. Though the learned Judge deduced that gruesome murder of the deceased was committed in broad daylight by the appellants, the case was not one of the rarest of the rare case as explained by the Supreme Court in Bachan Singh vs. State of Punjab, A.I.R. 1980 SC 898 and Machi Singh & Ors. vs. State of Punjab, A.I.R. 1983 SC 957 and, therefore, held that no case was made out by the prosecution for imposition of capital punishment on the appellants. In view of the said conclusion, the learned Judge has imposed sentence of R.I. for life and fine of Rs.1,000/-, in default R.I. for three months, on each appellant in Criminal Appeal No.575 of 1997 by judgment dated April 24, 1997, giving rise to said appeal. It may be stated that the State has not challenged acquittal of the original accused Nos.3 to 6 and, therefore, their acquittal has become final. As noticed earlier, in Criminal Appeal No.525 of 1997, the claim of the State Government is that having regard to the manner in which the incident had taken place and gruesome murder of a helpless young woman, capital punishment should have been imposed on the appellants. In Criminal Appeal No.526 of 1997 the claim of the State Government is that the appellants of Criminal Appeal No.575 of 1997 should have been convicted for commission of offence punishable under Section CR.A/575/1997 16/82 JUDGMENT 135(1) of the Act in view of the Notification issued by the competent authority under Section 37 of the Act, which is produced at Exh.44 on the record of the case. 6. Mr.Y.S.Lakhani, learned counsel of the appellants in Criminal Appeal No.575 of 1997, contended that the genesis of the incident having been suppressed by the prosecution, unwarranted conviction of the two appellants under Section 302 read with Section 34 IPC should be set aside. Elaborating this contention, it was argued that the documents produced by the appellant No.1 at the time of recording of his statement under Section 313 of the Code indicate that panchnama of seizure of six calves pursuant to the complaint lodged by deceased Geetaben was completed between 13-50 hours and 14-20 hours on August 27, 1993 after which deceased Geetaben in the company of witness Gogaji Surajmal and others had gone to Panjarapole to leave the cattle to the care of said institution from where they had gone to a road side stall to take tea and, thereafter had proceeded towards C.N.Vidyalaya, Ambawadi and, therefore, the case of the prosecution that the incident had taken place at about 2.30 p.m., should not have been accepted by the learned Judge of the trial Court. What was claimed by the learned counsel of the appellants was that the incident must have taken place between 3.00 p.m. and 3.30 p.m., and as the prosecution has suppressed the genesis of the incident, the whole case of the prosecution should be disbelieved. The CR.A/575/1997 17/82 JUDGMENT learned counsel argued that the prosecution has neither examined Hitesh, who was with deceased Geetaben in the loading rickshaw and who had removed the deceased to V.S.Hospital for treatment, in spite of the fact that his bloodstained clothes were seized by the Police during the course of investigation nor the prosecution has examined PSI Mr.Parmar, who had held inquest on the dead body of the deceased after reaching V.S.Hospital pursuant to message sent by Police Constable Jethabhai; nor the prosecution has examined panch-witnesses, who were summoned to witness as to what transpired