IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 327 of 1998 For Approval and Signature: HON'BLE MR.JUSTICE H.H.MEHTA and HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- YAKUB ISMAILBHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 327 of 1998 MR KJ SHETHNA for Petitioner No. 1-3 Mr.P.R.Abichandani, learned A.P.P.for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.H.MEHTA and HON'BLE MR.JUSTICE SHARAD D.DAVE Date of decision: 29/08/2003 C.A.V. JUDGEMENT (Per : HON'BLE MR.JUSTICE SHARAD D.DAVE) 1. The appellants-original accused, by filing this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (to be referred to as the Code for the sake of brevity) have challenged the judgment and order dated 13th February, 1998 rendered by the learned Addl.Sessions Judge, Ahmedabad City in Sessions Case no. 101 of 1996 by which judgment and order the appellant no. 1 was convicted under Sec. 302 of the Indian Penal Code and appellant nos. 2 & 3 were convicted under Sec. 302 read with Sec. 34 of the Indian Penal Code and sentenced them to imprisonment for life. 2. The brief facts of the present case are as under: On August 25, 1995 at about 13-15 hrs. the Ahmedabad Railway Police received a Vardhi from one Abdulmajid containing that "knife blow is inflicted on Nazim at Kankaria Loco Shed." In this regard entry no. 24/95 was recorded in police station diary. On the strength of the said entry, P.S.I. Prajapati of Ahmedabad Railway police station went to the scene of occurrence, prepared inquest report of dead body and also drew panchanama of scene of occurrence. In the meantime, at about 17.40 hrs. complaint was given by Munna @ Gheti Mohamadshafi Shaikh. In the said complaint, it is stated that he happens to be a friend of Nizamuddin Ismailbhai (deceased) for the last 15 years and said Nizamuddin has been allotted one quarter in B scale colony of Kankaria railway colony but he was not residing there. He gave the quarter to his relative. Nearby the quarter of Nizamuddin, Yakubbhai Patel (accused no. 1 ) was residing. The complainant also used to visit the said quarter along with Nizamuddin. On 24.08.1995, there was altercation/dispute and quarrel in between accused no. 1 and deceased in respect to the said quarter, as he wanted to get it evicted. On 25.08.1995 (the day of incident) while said Munna @ Gheti was returning from the house of his friend, somewhere near Kankaria railway colony, he saw accused no. 1 and accused no. 2 along with other person. They were running. There was Jamaiya (kukari) in the hand of accused no. 1. There was also Jamaiya in the hands of accused no. 2. Therefore, he went towards fuel room of diesel shed, where he saw the dead body of Nizamuddin in a pool of blood lying near railway tracks. One Raju (witness) was also there. In the inquiry, he could gather from said Raju that accused no. 1 & 2 along with one another person had inflicted injuries on the person of Nizamuddin and thus has resulted into his death. Said Munna had also seen the injury on the throat and on face of Nizamuddin. His said FIR/complaint was registered as I C.R.No. 223/95 with Ahmedabad Railway police station. 3. During the investigation, police recorded the statements of witnesses, panchanamas were drawn in respect of the clothes of deceased, discovery of weapons at the instance of accused persons and post mortem note of deceased was collected. Incriminating articles were also collected for having scientific examination. Police also arrested accused no. 1 & 2 and Tapan @ Tondi Shashdhar accused no. 3 on 19.09.1995. After completion of investigation, accused came to be chargesheeted on 16.12.95 before the learned Metropolitan Magistrate, Court no. 5, Ahmedabad. The said chargesheet was for the alleged offences punishable under Sec. 302, 34 of I.P.C. and Sec. 135 of the Bombay Police Act. It was numbered as Criminal case no. 2833/95. 4. As the alleged offence punishable under sec. 302 of I.P.C. is exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate court no. 5, Ahmedabad in turn committed the said criminal case no. 2833/95 of his file to the Court of Sessions Ahmedabad on 01.02.1996 and it was numbered as Sessions Case no. 101/1996. 5. Charge was framed against all the three accused. They pleaded not guilty to the charge and claimed to be tried. 6. In order to prove the charge against the accused, the prosecution examined 14 witnesses ; (1) P.W.no. Munnabhai @ Gheti Mohammadsami exh. 11, (2) p.w. 2 Akbarkhan Abbaskhan exh. 14, (3) p.w.3 Parshottambhai Motibhai exh. 15, (4) p.w. 4 Gulamyuddin Abdulrahman exh. 16, (5) p.w. 5 Yusufkhan Rahimkhan exh. 18, (6) p.w. 6 Mohammadshafi Mohammadyusuf Shaikh exh. 20, (7) p.w. 7 Ajijkhan Usmankhan exh. 22, (8) p.w. 8 Mohammadaiya Mohammadfaruqui exh. 24, (9) p.w. 9 Ramjibhai Koyabhai Parmar exh. 25, (10) p.w. 10 Kamleshbhai Vijaybhai Rathod exh. 28, (11) p.w. 11 Vinayakarao Vasudevrao Patil exh. 30, (12) p.w. 12 Govindbhai Parsottamdas Prajapati exh. 37, (13) p.w. 13 Babliben Jumlabhai exh. 45, (14) p.w. 14 Mohammadbeg Sardarbeg Mirza and also relied on documentary evidence which consisted of FIR, panchanama of place of incident, recovery of weapons panchanama from the present appellants etc. The appellants have also examined D.W. no. 1 Munna @ Gheti Mohammadsami Shaikh at exh. 71 and produced documentary evidence, exh. 39 receipt in respect of dead body received by Kamaluddin Ismailbhai, exh. 40 Yadi sent to fire brigade officer by P.S.I., Ahmedabad railway station, exh. 41 Yadi for calling dog squad, exh. 33 and exh. 42 two death reports sent to Civil surgeon along with dead body by police and exh. 66 xerox copy of Muster roll of Loco Shed office, K.K.F. Western railway. 7. After the prosecution case was over, the appellants were questioned with regard to the evidence led by the prosecution against them and their statements were recorded under Sec. 313 of the Code. In their further statements all the appellants have denied the part played by them in the alleged offence. However, they gave application to examine complainant Munna Gheti Mohamadshafi Shaikh as defence witness. 8. The learned Addl.Sessions Judge, after appreciating the oral and documentary evidence and arguments advanced by the learned counsel of the prosecution as well as the defence, held that on the day of incident i.e.25.08.1995 all the appellants had common intention to kill the deceased. It was further held that deceased Nizamuddin died a homicidal death. In light of this, the learned Addl.Sessions Judge convicted all the appellants and sentenced them as stated above which has given rise to this appeal. 9. Heard learned counsel Mr.K.J.Shethna for the appellants and Shri P.R.Abichandani, learned A.P.P. for the respondents. They have taken us through the entire record and proceedings of the case. According to learned counsel Mr.Shethna for the appellants, there is no direct evidence to indicate any connection of appellant nos. 1 to 3 with the alleged crime. The accused no. 1 was serving as railway servant in the diesel shed where Nizamuddin (deceased) was also serving. The premises of deceased Nizamuddin was near the house of accused no. 1. On the previous day i.e. on 24.08.1995 there was an exchange of words between the accused no. 1 and deceased in respect of premises. The incident took place on 25.08.1995. On that day at about 9.30 a.m. the complainant Munna @ Gheti had gone in the Government colony to meet his friend. After talking to him he was returning. At that time, he saw those persons i.e. the present appellants running. As per the deposition of witness Akbarkhan Abbaskhan p.w.2 exh. 14 he and deceased Nizamuddin left the place at about 7.30 a.m. to place sick note as he was not feeling well. In both the offices, it took 4 to 5 hours. Accordingly, the witness Akbarkhan has not stated the exact time of alleged offence. However, as per entry no. 24/95 it seems that incident has taken place at about 13.30 hrs. on 25.08.1995. Accordingly, in submission of learned counsel for the appellants, the time of incident is not proved by the prosecution. The place of incident is also not proved by the prosecution. Though there was blood on the table, chair and floor, P.S.I. Prajapati has made panchanama near the railway track where the body was found lying. At the place of incident, the police has noted blood, one watch, goggles etc. The police has not seized anything from the room. Under the circumstances, when there is dispute regarding the place of offence, the benefit should go to the accused. According to the learned counsel for the appellants, it is the case of the prosecution that the alleged injuries sustained by the deceased were inflicted by kukari by appellant no. 1 and by knives by appellant nos. 2 & 3 but there are no witnesses to that fact. The witness Akbarkhan has stated in his deposition that Yakubkhan has given blow with jamaiya on the neck of Nizamuddin and accompanying persons also did the same. Against the aforesaid deposition of the alleged eye witness, Dr.Vinayakarao Vasudevrao Patil who performed the post-mortem of deceased Nizamuddim has stated in his deposition that incised wound no. 3 stated in column no. 17 cannot be possible by kukari but it can be possible by gupti or sword. As per the eye witness all the three appellants were having kukari in their hands but the medical evidence says otherwise. The case of the prosecution that accused no. 2 and 3 were having knives in their hands and knives were also seized from them. The stab wounds cannot be possible by kukari. It is not the case of the prosecution that the incised wounds were caused by knives. Therefore, there is contrary evidence on record regarding weapon by which the injury was caused and therefore the benefit should go to the appellants-accused. 10. According to the learned counsel for the appellants, the prosecution has only one reliable eye witness Akbarkhan Abbaskhan who has given deposition as p.w. 2 at exh. 14 who appears to be got up witness. It is the defence of the present appellants that Raju is not the eye witness and Akbarkhan is not known as Raju. He is subsequently got up and learned counsel for the appellants relied on certain facts to disbelieve the said witness. As per his say at about 7.30 a.m. on the day of incident he was standing in the corner of the street to go to mutton shop. However, the mutton shop is situated outside the lane but still he was saying that he was standing on the corner of the street. According to this witness, when he was standing on the corner of the street, deceased Nizamuddin came and told him that let us go to the office and put sick leave and come back. According to him they went on scooter though Nizamuddin was suffering from cold and fever. Normally sick person would not go on scooter. Assuming that deceased went to mark his absence but they stayed for 2 1/2 hours each in both the offices. As per the muster roll exh. 66 it is clear that on 25.08.1995 the deceased was present on his duty. Accordingly the presence of witness Akbarkhan is very much doubtful at the place of incident and therefore there is a reason to believe that he has been got up at a later stage. Moreover, assuming for the sake of argument that Akbarkhan was with the deceased Nizamuddin at the time of incident, however he has not tried to save his best friend. Therefore also, the only alleged eye witness cannot be believed at all and benefit should go to the present appellants. According to the learned counsel for the appellants, time gap between the alleged incident and filing of FIR is not explained by the prosecution. It has come on record that from the place of incident, the police station is about 1 km. or so, however, one of the witnesses lodged the FIR before the police. After the FIR was lodged, P.S.I.Prajapati came at the place of incident and prepared inquest panchanama and panchanama of scene of offence. The witness Akbarkhan @ Raju has also not filed any FIR before the police even though he was with the deceased from 7.30 a.m. till he saw the incident. Therefore there is a reason to believe that Akbarkhan has no business to enter the railway yard. Moreover, the name of present appellant no. 3 was not known to witness Akbarkhan. Therefore, he has stated that he saw Yakubkhan and one more person running with the weapons. There is no T.I.parade. In the aforesaid circumstances also, the prosecution has miserably failed to prove the alleged guilt of the appellants. Therefore, they should be acquitted. 11. It was submitted by learned counsel for the appellants that Munna @ Gheti who was examined as defence witness no. 1 has resiled from the evidence which he gave as P.W. 1. Therefore, he was also disbelieved as P.W. 1 and his deposition as p.w. 1 should be discarded. His affidavit should be taken into consideration. There is no chance of influencing the defence witness Munna @ Gheti in the jail premises. What is transpired is stated by the witness and therefore also the benefit should go to the present appellants-accused. 12. In support of his submissions, Mr.K.J.Shethna learned counsel for the appellants has relied on the following decisions : 1. Ramratan and others V/s State of Rajasthan reported in AIR 1962 S.C. 424. 2. Awadh Behari Sharma V/s State of Madhya Pradesh reported in 1956 S.C. 738. 3. Mohan Singh and another V/s State of Punjab reported in AIR 1963 S.C. 174. 4. Prabhoo V/s State of Uttar Pradesh reported in AIR 1963 S.C. 1113. 5. Krishna Govind Patil V/s State of Maharashtra reported in AIR 1963 S.C. 1413. 6. Hanumantta Ramchandra V/s The State of Gujarat reported in 1963 G.L.R. 1031. 7. Mohd.Iqbal M.Shaikh and others V/s State of Maharashtra reported in AIR 1998 S.C. 2864. 13. Against the aforesaid submissions, learned A.P.P. Shri P.R.Abichandani for the respondents has submitted that the alleged incident took place at 12.30 p.m. In the station diary it is mentioned as 13.30 hrs. and inquest panchanama and panchanama of scene of offence were carried out by P.S.I.Prajapati from 13.45 hrs. to 15.20 hrs. and 15.35 hrs. to 16.30 hrs respectively. It is true that FIR number is not mentioned in the panchanama and panchanama of scene of offence on account of FIR registered at 17.40 hrs. In submission of Mr.Abichandani learned A.P.P. for the State body was received by the doctor at about 16.30 hrs. obviously FIR was not registered till that hour. Pavti of the receiving body by brother of deceased makes the position clear that FIR was filed at a later stage. If we peruse FIR exh. 47 it only refers to making a note. It does not disclose the name of the assailants. Exh. 49 can be said to be a detailed FIR. Appellant no. 3 is described as unknown person. Therefore, runs the submission of learned A.P.P. for the State, that though the railway police station was nearer to the place of incident, on receipt of information to the P.S.I.Prajapati he immediately moved and came to the place of incident and drew panchanama of scene of offence as well as inquest panchanama. Thereafter, the body was taken for post-mortem and ultimately complaint came to be recorded at 17.40 hrs. Therefore, delay of 2 hrs. in lodging the complaint cannot be said to be fatal to the prosecution. 14. P.W.no. 2 Akbarkhan has given deposition at exh. 14 who is said to be the eye witness. His evidence is required to be read with the deposition of I.O. The deposition of I.O. ought to be accepted as he is not interested person though p.w. 9 Ramjibhai Parmar is hostile witness. The application at exh. 26 dated 23.04.1997 requires consideration. According to learned A.P.P. for the State, witness Ramjibhai Parmar has stated that the relatives of the accused's side are strong headed persons and giving threats to him and his family and therefore prayed for police protection. On this application, the trial court Judge has also passed order directing the P.I. Karanj police station to give proper protection to the witness. Therefore, runs the submissions of learned A.P.P. for the State, that under the circumstances, though witness Ramjibhai Parmar was serving with the railway and was serving with the deceased and knew each other, he has not supported the prosecution case. 15. So far as the `u' turn taken by the P.W. 1 who was also D.W. 1, learned A.P.P. for the State submitted that as he was in jail along with the present appellants, he was supposed to change the version after a span of more than two years. The incident took place on 25.08.1995 whereas his deposition was recorded on 19.01.1998. The witness was in jail on account of other offences under the Narcotics Act. His affidavit was read over which is at exh. 72. Therefore, assuming for the sake of argument, the deposition of p.w. 1 Munna @ Gheti is not considered at all then also the deposition of p.w. 2 Akbarkhan @ Raju inspires confidence and when evidence of one eye witness is sufficient to inspire confidence in the mind of the court then conviction can be confirmed on such deposition. In short, learned A.P.P. for the State has tried to support the judgment and order passed by the learned Addl.Sessions Judge Ahmedabad. Lastly, it is submitted that the appeal be dismissed. 16. We have gone through the depositions on record and papers produced with the paper book. Before going through the discussion, it is proper to note down the main aspects of the depositions of p.w. 1 and p.w. 2. As far as p.w. 1 Munna @ Gheti is concerned, he has stated at exh. 11 that deceased was serving as a Pointman in the railway in diesel shed and was residing at Jamalpur. He had another house in railway colony also. In the railway colony house/quarter, his relative was residing. He knows Yakub Patel-accused no. 1 on account that witness, accused no. 1 and deceased used to take tea together. In clear terms, he stated that one Safibhai gave him information that there was an altercation between the deceased and Yakub Patel. On the day of incident, while he was returning from railway colony after meeting his friend at about 12.00 noon, he saw accused no. 1, accused no. 2 and another person running. Thereafter, he saw the body of deceased Nizamuddin lying in a pool of blood. He saw Raju standing near the body of Nizamuddin. Raju told the witness that Yakub Patel and other accused persons gave blow to Nizamuddin and ran away. Subsequently, Raju and witness went to the police station to lodge complaint which is given mark 10/1. One day, T.I.parade was held and at that time he identified accused no. 2 & 3. 17. In cross-examination of this witness, he admitted that deceased Nizamuddin was his fast friend since last 15 years. At that time, deceased was staying in Saudagar pole and before 8 years he was allotted quarter in railway colony where he stayed for 1 1/2 years to 2 years or so. The witness used to visit Nizamuddin's house in Saudagar pole as well as railway colony. The witness saw the accused persons when they were coming from Kankaria yard. It is admitted that there used to be R.P.F. police near the yard and that yard was used for loading and unloading process which goes on for 24 hours. The witness had no occasion to see accused no. 3 at any time. The distance between diesel shed and Ahmedabad railway police is about 1/2 an hour. It took 1/2 hour in dictating complaint at police station. Lastly, in clear terms he has denied that he is not knowing regarding the incident at all. 18. At this stage, it is worth to note that as defence witness at exh. 71, Munna @ Gheti has stated that Gheti name is given by police. The police has filed many cases of theft against the witness. He knows deceased Nizamuddin and Akbarkhan as they are his friends. The witness knows deceased Nizamuddin on account of help rendered by him in his illegal activities. On 25.08.1995, the witness was at his friend's room from 10.00 a.m.to 1.30 p.m. where he came to know that Nizamuddin died. Thereafter he came to railway crossing where police called him and told him to remain as witness. He has not seen any incident taking place nor he has seen anyone involved in the crime. The witness does not know full name of Akbarkhan. He has no alias name. The witness has read over the affidavit which was sworn before the Notary and admitted the contents of the same which is given exh. 72. 19. In cross-examination by the learned A.P.P. for the State, the witness stated that he is in jail since 31.07.1997 in Narcotics case which was filed by the nephew of deceased Nizamuddin. The witness denied the suggestion that on only national occasions the under-trial prisoners meet each other. There were 37-38 undertrial prisoners in one barrack who used to talk with each other. In clear terms the witness admitted that his earlier deposition was recorded in March 1997 but denied the suggestion that in the said deposition he stated that he saw the body of Nizamuddin after his death and that he saw some persons running away. He clearly stated in his deposition that he wrongly identified accused nos. 1 & 3. He denied that on 25.08.1995 the witness went to police station and gave complaint. He admitted that as the witness was rickshaw driver, the traffic police used to file many cases against him. But he denied the suggestion that on account of many traffic cases,the witness had to enter into conflict with the police. The witness denied the suggestion that Police Commissioner is the authority for making grievance against the police officer. In clear terms he admitted that on 25.08.1995 after the thumb mark was taken, he has not made any complaint to higher authority. The witness does not know advocate M.I.Laliwala nor he has seen him. After the witness was examined on 27.03.1997 he has not made any complaint through this court also. The witness has signed the affidavit at exh. 72 in presence of Jailor. The witness does not know who is Notary Public. Typing of exh. 72 was done in the jail premises. The witness denied that he was knowing accused no. 1 & 3 before he went to jail and that whenever he was in jail both the accused used to meet him who forced him to execute affidavit at exh. 72. The witness also denied that today, he is under threat of accused no. 1 & 3. Lastly, he denied that he was stating that there were theft cases filed against him and cases under PASA were filed against him in order to help the accused. 20. So far as deposition of P.W.no. 2 Akbarkhan Abbaskhan is concerned, it is recorded at exh. 14. In clear terms he stated that his real name is Akbarkhan Raju. He states that he is residing at Saudagar Pole, Jamalpur and serving in