CR.A/1095/1999 1/46 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1095 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ===================================================== 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 ? ===================================================== ABDULWAHAB ABDULMAJID BALOCH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR JM PANCHAL with MR KJ PANCHAL for Appellant MR. A.J.DESAI, APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI CR.A/1095/1999 2/46 JUDGMENT Date : 13th, 14th, 16th and 24th August 2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1.Appellant (“the Accused” for short) along with other 25 accused was charged and tried by the learned Additional City Sessions Judge, Court No.4, Ahmedabad in Sessions Case No. 13 of 1997 and 14 of 1997 for commission of the offence under Sections 302, 365, 387, 332, read with Section 34, 120B, 201, 202 of the Indian Penal Code (“the IPC” for short), and under Section 21(1)(a) and 27 of the Arms Act, on the accusation that the Accused and the other accused persons belonging to the gang of Abdul Latif Abdulwahab Sheikh – accused no. 24, who was supplying the foreign liquor, hatched a conspiracy to kill Bhagwandas Dwarkadas Sindhi, who was importing foreign liquor and not purchasing the same from deceased Abdul Latif Abdulwahab Sheikh. As a part of that conspiracy, deceased was kidnapped and thereafter the Accused fired bullet from his foreign made revolver, which he has possessed illegally, and caused the death of Bhagwandas Dwarkadas Sindhi. 2.At the end of the trial, as the Accused was found guilty of committing murder of Bhagwandas Dwarkadas Sindhi, he was convicted vide judgment and order dated 19.8.1999 for commission of the offence punishable under Section 302 of the IPC and was sentenced to suffer imprisonment for CR.A/1095/1999 3/46 JUDGMENT life and fine of Rs.10,000/- in default SI of 3 months, whereas for remaining offences, the accused was acquitted. 3.During the pendency of the trial Accused No.14 – Mohamadrafiq Ganibhai Shayer Chipa and Accused No.24 – Abdullatif Abdulwahab Sheikh died, therefore, case against them has been abated. So far as remaining accused are concerned, since the prosecution failed to establish the charges leveled against them, they have been acquitted of the offences with which they were charged. 4.Aggrieved by the judgment and order of conviction and sentence dated 19.8.1999, the Accused has filed the instant Criminal Appeal with the aid of Section 374 of the Criminal Procedure Code (“the Code” for short). 5.The prosecution case, as disclosed from the FIR and unfolded during trial, is as under: 5.1 On 4.9.1993 at 1:15 am, H.P.Kohri, PSI, Gaekwad Haveli Police Station received message that a dead body was lying near Sahakari Cold Storage, just opposite Munda Gate and Telephone Exchange. Near the dead body, there was a stationery Truck bearing registration No. GJ 1U 7377. The dead body was of a male person aged about 35 years, which was bleeding. A fire-arm injury could be seen on the forehead above left eye. On being seen minutely, there was bullet injury found on the neck of the dead body. He, therefore, lodged FIR, which was registered as CR.A/1095/1999 4/46 JUDGMENT I.C.R. No. 161/93. 5.2 Pursuant to the registration of FIR, investigation was carried out. During the course of investigation, it was revealed that it was the dead body of one Bhagvandas Dwarkadas Sindhi who used to deal with illicit foreign liquor. It has also been alleged that Accused No.24 – Abdullatif Abdulwahab Sheikh (since deceased) was also dealing in identical business and the said Bhagwandas Dwarkadas Sindhi was not prepared to buy liquor from him. There was financial loss caused to Abdullatif Abdulwahab Shaikh as he was not getting amount of commission. Therefore, a conspiracy was hatched by the said Abdullatif Abdulwahad Sheikh, Accused no. 1 Abdulwahab, Accused No. 25 – Abdulsattar and the absconding accused Rasulkhan @ Rasulparti, to abduct Bhagwandas Dwarkadas Sindhi and to extort money from him. If he failed to do so, then he should be done to death. It is also alleged that Accused no.4 – Shakilahmed and Accused No.17 – Aslam were also dealing in liquor business near Madhuram Theatre and the said Bhagvandas Dwarkadas Sindhi used to visit them in this regard. Information in this regard was supplied by said Accused No.17 – Aslam and relying on the same, Accused No.2 – Iqbalhussain and Accused No.3 – Mohamadsalim were posted at Madhuram Cinema for having watch. When said Bhagwandas came there, Accused No.4 – Shakilahmed and Accused No. 20 – Aslam informed Accused No.1 – Abdulwahab and also to deceased CR.A/1095/1999 5/46 JUDGMENT Accused-Sherzada on telephone and therefore, Accused No.7 – Abdulkadar and Accused No.8 – Abdulsattar provided the Accused and deceased Sherzada a Maruti Van bearing No. GH 1R 668 having fictitious number plate. When said Bhagwandas Dwarkadas Sindhi, with his friend Kamli @ Kamlesh appeared there, they were stopped. At the relevant time, Accused No.2 Iqbalhussain and Accused No.3 Mohamadsalim informed the Accused and deceased Sherzada who were occupying Marutivan. The Accused, Accused No.2 – Iqbal and Accused No.3 Mohamadsalim and deceased Sherzada, having revolvers, abducted said Bhagwandas in Maruti Van and attempted to extort money from him. As he resisted, the Accused fired shot from his revolver and he was done to death. Thereafter, in order to screen the evidence, his dead body was thrown near cold storage. It is also alleged by the prosecution that in order to establish supremacy in the business of illicit liquor, Accused No. 26 – Jahangir Patel brought arms by using false documents and bogus license and such arms and cartridges were sold to Accused No.24 – Abdullatif. The arms used to be kept with Accused No.24 Abdullatif, Accused No.25 – Abdulsattar and absconding Accused Rasulkhan @ Rasulparti. The arms were used to commit murder and were given at the instance of Abdullatif. It is also alleged that the Accused No.9 – Mohamad Rafiq was very much aware that the Accused, Accused No.5 – Abdulsattar and Accused No.6 – Mohamadsalim were involved in criminal CR.A/1095/1999 6/46 JUDGMENT activities. In order to avoid their arrest, with the company of Accused No.10 – Mohamadhanif and Accused No.11 – Azaz, they were harboured at Mumbai. It is also alleged that Accused No.12 Yusuf and Accused No.14 Mohammadsharif and Accused No.15 – Firozbhai were also aware that the Accused used to communicate message through their public telephone. It is also alleged that Accused No.16 – Salim Noormohamad and Accused No.18 – Ahmediliyas had provided shelter to the Accused No.1. They were also aided and abetted by Accused No. 19 – Yasin Ganibhai and Accused No.20 – Salauddin Ganibhai and Accused No.21 – Nazirmohamad. After committing serious offence, to facilitate the escape of the Accused from the country, the Accused No.13 – Mohamadiqbal, Accused No. 22 -Ramchandra and Accused No. 23 – Prakash forged the documents and submitted application to passport office. The sum and substance of prosecution case is that after hatching criminal conspiracy, they have committed various offences. 5.3 During the course of further investigation, necessary panchnama of the inquest report was made. Dead body of deceased Bhagwandas Dwarkadas Sindhi was sent for autopsy, necessary panchnama in respect of the seized articles were drawn and articles were sent to F.S.L. Thereafter further investigation was undertaken by crime branch. Certain accused were arrested. Since incriminating evidence was found against the accused, first charge sheet CR.A/1095/1999 7/46 JUDGMENT was filed against 23 accused and thereafter supplementary charge sheet was submitted against remaining accused nos. 24, 25 and 26 before the designated Judge, Ahmedabad. Initially in the present case, provisions of TADA Act were applied. However, the designated Judge, Ahmedabad held that, considering the facts of the case, TADA Act cannot be made applicable, therefore, both the TADA cases were treated as Sessions Case No. 13/1997 and Sessions Case No. 14/1997 respectively. 5.4 As the Sessions Case Nos. 13 of 1997 and 14 of 1997 arise out of same CR, i.e. I.C.R.No.161/1993, both the cases were consolidated and decided by the common judgment. 5.5 The learned trial Judge to whom the case was made over for trial, framed charges against the accused for the offences punishable under Sections 302 read with Section 34, 120B of the IPC as well as for other offences. 5.6 The charges were read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried, and therefore, the trial Court put them on trial. 5.7 To prove the culpability of the accused, the prosecution has examined as many as 18 witnesses and relied upon their oral testimonies, the details of which have been given in paragraph 22 of the impugned judgment CR.A/1095/1999 8/46 JUDGMENT and order. They are as under: PW No. Name & Status Exhibit Page No. 1 Hardhwar Patiraj Kohri, PSI, Complainant. 64 549 2 Mohabbatsingh Pruthvisingh, P.C. 76 563 3 Punjabhai Kanabhai, P.S.O. 78 567 4 Kamlesh Dayaram alias Kamli 90 593 5 Bhawanbhai Maganbhai Parmar, Panch 92 805 6 Noorbhai Nannebhai Shaikh, Panch 93 813 7 Chandmiya Gulam Hussain Shaikh 95 819 8 Imran Yusufbhai 100 831 9 Dr. Dilip Manubhai Desai, P.M.Doctor 101 839 10 Makanaji Jivaji, First Grade Constable 107 851 CR.A/1095/1999 9/46 JUDGMENT PW No. Name & Status Exhibit Page No. 11 Prasad Vishnu Pathak, Branch Manager of Development Co- operative Bank Ltd,. Mumbai 127 873 12 Raghunath Pandurang Pavar, P.S.I. Worli Police Station, Mumbai 132 893 13 Jitendra Rambhai Patel 213 967 14 U.T.Brahmbhatt, P.I. Crime Branch (I.O.) 215 983 15 Mohanbhai Jivabhai Rathod, Ballistic Expert 271 1077 16 Baburao Ramsinh Patil (I.O. - A.C.P. Crime Branch) 273 1089 17 Gunvantray Devram Trivedi, P.S.I, Crime Branch (I.O.) 286 1105 18 Rajendrasinh Hathisinh Rathod, P.I., Gayakwad Haveli Police Station. 287 1115 CR.A/1095/1999 10/46 JUDGMENT 5.8 To prove the charges leveled against the accused, the prosecution has also produced number of documents and relied upon the contents of the same. The details of which have been given in paragraph 23 of the impugned judgment and order. They are as under: Srl. No. Particulars Exhibit Page No. 1. Inquest Panchnama dated 4.9.1993 from 04:45 to 05:15 hrs. 55 (Mark 53/1) 405 2. Panchnama of place of offence dated 4.9.1993 from 05:30 to 06:30 hrs. 56 (Mark 53/2) 409 3. Panchnama of clothes of deceased, cartridge and blood samples produced by P.C. Dated 4.9.1993 from 19:30 to 20: hrs. 79 (Mark 53/3) 417 4. Panchnama of production of Scooter No. GJ 1 DD 2446 57 (Mark 53/5) 429 5. Sanction accorded by D.C.P., Ahmedabad City dated 3.12.1995 274 (Mark 53/18) 511 6. F.I.R. Given by P.S.I. H.P.Kohri dated 4.9.1993. 58 (Mark 54/1) 519 CR.A/1095/1999 11/46 JUDGMENT Srl. No. Particulars Exhibit Page No. 7. Report of registration of offence dated 4.9.1993 at 02:25 hrs. 59 (Mark 53/2) 523 8. P.M.Report 60 (Mark 54/3) 525 9. Yadi / Report for carrying out P.M. 61 (Mark 54/4) 539 10. Yadi by P.I. To M.O. Of V.S.Hospital for opining cause of death. 62 (Mark 54/5) 543 11. Visit by F.S.L. Van to the place of offence 63 (Mark 54/6) 545 12. Repost of F.S.L. of Ballistic Expert – I.C.R. No. 161/93 277 (Mark 91/9) 655 13. Report of F.S.L. in respect to clothes, earth, etc. dated 26.10.1993 – I.C.R. No.161/93. 289 (Mark 91/10) 661 14. Report of F.S.L. 290 (Mark 90/11) 663 CR.A/1095/1999 12/46 JUDGMENT Srl. No. Particulars Exhibit Page No. 15. Report of F.S.L. 291 (Mark 90/12) 665 16. F.S.L. report – Serology dated 25.10.1993 292 (Mark 91/13) 673 17. Report of F.S.L. in respect to Maruti Car GJ 1R 668 293 (Mark 91/15) 679 18. Forwarding note by P.I. To F.S.L. 288 (Mark 91/171) 685 19. Letter to A.C.P. Addressed to F.S.L. in respect to I.C.R. No. 60/94. 282 (Mark 91/19) 717 20. Estimate of spare parts of the car signed by witness. 94 (Mark 91/32) 803 21. Ration card of witness Chandmiya Gulamhussain. 97 (Mark 96/1) 825 22. Account opening form of accused no.9 given by the Bank. 129 (Mark 128/1) 881 CR.A/1095/1999 13/46 JUDGMENT Srl. No. Particulars Exhibit Page No. 23. Statement of account given by the Bank. 130 (Mark 128/2) 885 24. Seizure panchnama prepared by Mumbai Police in respect to accused no.23 – Prakash Shobnath Gupta. 152 (Mark 151/1) 919 25. Discovery panchnama of weapons by the Accused from his residence in ICR No. 60/94 dated 3.6.94 from 1:00 to 7:00 hrs with signatures of IO. 262 (Mark 214/1) 1049 26. Reminder dated 15.11.1994 to F.S.L. by PW No.16. 276 (Mark 275/1) 1099 27. Panchnama of place of offence dated 4.9.1993. 56 409 28. Slips signed by panchas in respect to discovery panchnama – ICR No. 60/94. 221 1025 5.9 After recording of the evidence of the CR.A/1095/1999 14/46 JUDGMENT prosecution witness was over, the trial Court explained to the Accused, Accused No.9 – Mohamadrafiq and Accused No. 23 – Prakash Shobhath Gupta, circumstances appearing against them and recorded their further statement under Section 313 of the Code, whereas there is no evidence worth consideration against the Accused Nos. 2 to 13 and 15 to 23 of Sessions Case No. 13 of 1997 and Accused Nos. 25 and 26 of Sessions Case No. 14 of 1997. Therefore, the trial Court has not recorded their further statement under Section 313 of the Code. 5.10 In his further statement, the Accused has denied the case of the prosecution and stated that during the period, he was under police remand, he was not brought out of the camp. The house of Nandanvan society is not owned by him. Nothing has been seized from his possession or in his presence. He has also produced the certified copy of the affidavit filed by Deputy Superintendent of Police P.P.Ansari before the Honourable Apex Court during the proceeding of Special Leave Petition (Criminal) No. 2584 of 1995. He has also produced certain documents pertaining to 67, Nandan Cooperative Society in order to show that neither he is having the possession nor he is the owner of the said house. These documents indicate that said house is in possession of one Bharat Vanchand Shah. It is the say that false case has been made out against him by police. However, he has neither led any evidence nor CR.A/1095/1999 15/46 JUDGMENT examined any witness in support of his defence. So far as further statements of Accused Nos. 9 and 23 are concerned, it is not necessary for us to refer to the same, since they have been acquitted. 5.11 On appreciation, evaluation and scrutiny of the evidence on record, the trial court held that since there is no evidence worth consideration to connect 23 of the accused, i.e. Accused Nos. 2 to 13 and 15 to 23 of Sessions Case No. 13 of 1997 and Accused Nos. 25 and 26 of Sessions Case No. 14 of 1997, and acquitted them from all the charges, whereas so far as the Accused is concerned, prosecution has successfully proved beyond doubt the guilt of the Accused that he has committed murder of Bhagwandas Dwarkadas Sindhi and thereby committed offence punishable under Section 302 of IPC and sentenced him to suffer RI for life and fine of Rs.10,000/- in default of payment of fine, SI for 3 months. However he has been acquitted of the offence for the remaining charges, which has given rise to the instant Appeal at the instance of original Accused No.1. 6.Mr. J.M.Panchal, learned advocate of the Accused, in support of the Appeal, has raised the following contentions: (i) The prosecution failed to establish the motive of the crime. (ii) The prosecution failed to prove the enmity CR.A/1095/1999 16/46 JUDGMENT between the Accused and the deceased Bhagwandas Dwarkadas Sindhi. (iii) There is no direct evidence in the case as most of the witnesses have not supported the case of the prosecution, with the result that the prosecution has to rely on circumstances to prove its case. (iv) Even the circumstances relied on by the prosecution are not sufficient enough to establish the guilt beyond reasonable doubt. (v) This is also a case of no evidence and prosecution in turn, has not established each and every circumstances in chain against the Accused. (vi) The case mainly hinges upon the so called circumstances of discovery of weapon at the instance of the Accused, which creates a reasonable doubt – as the same was drawn in connection with some other offence and weapons were discovered in connection with some other offence; as the panch witnesses have not supported the case of prosecution, as the I.O. in the present case filed the affidavit before the Honourable Supreme Court stating that the weapons by which the crime was committed were discovered at the instance of Accused No.9; as the ownership of the house from where weapons were allegedly discovered is seriously disputed by the Accused and no other evidence is produced by the prosecution to connect the Accused with CR.A/1095/1999 17/46 JUDGMENT the house; as the discovery panchnama which was drawn by the police does not bear the signature of I.O. showing concoction of documents and also table work of investigating agency. (vii) That the evidence in the nature of discovery panchnama suffers from serious defects which are fatal to the prosecution and the same panchnama is made the sole basis of conviction. Evidence in respect of weapons – seizure of weapons as well as F.S.L. report in respect of the same materially differs giving rise to a doubt regarding identity of weapons with which the crime is alleged to have been perpetrated. (viii) 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 Accused in commission of the offence in question nor are there circumstances which would lead to a legitimate inference that the Accused must have used the weapon for commission of the offence. 7.To buttress the aforesaid submissions, he also highlighted the following discrepancies in the prosecution evidence: (i) There is no link to suggest that bullet mark 'I' was available with F.S.L. when it has compared with the revolver mark 'A' ( of C.R.No. 60 of 1994). (ii) Discovery panchnama exh. 262 is not in CR.A/1095/1999 18/46 JUDGMENT accordance with Section 27 of Evidence Act. (iii) The prosecution is not clear as regards place from where weapons were seized. (iv) Expert cannot be said an expert in absence of special knowledge and skill who is not prepared to accept observation of celebrated author. (v) When discovery of weapon is base of prosecution, close and minute scrutiny is required in respect to testimony of P.I. who is otherwise interested. (vi) Delay in sending Muddamal articles to F.S.L. and there is no explanation from the prosecution, no evidence as to safe custody of such weapons. 8.On the aforesaid premises according to him there is no eye witness to the incident and the circumstances upon which the prosecution placed reliance, absolutely does not provide any link of the chain, and therefore, the impugned judgment and order, convicting the Accused for commission of the offence punishable under Section 302 IPC and sentencing him to imprisonment for life, deserves to be quashed and set aside by allowing this Appeal and thereby acquitting the Accused of the offences with which he was charged. He, therefore, urged to allow this Appeal. 9.Per contra Mr. A.J.Desai, learned APP for the CR.A/1095/1999 19/46 JUDGMENT Respondent – State of Gujarat has supported the impugned judgment and order of conviction and sentence. According to him, no interference is called for in the impugned judgment and order of conviction and sentence as the impugned judgment and order passed by the trial Court is just and proper, and on the basis of the evidence on record. He further contended that no case is made out to take a view contrary to the view taken by the trial Court. According to him, it is true that, in this case, there is no eye witness to the incident of murder of Bhagwandas Dwarkadas Sindhi. So called PW-4 – Kamlesh Dayaram alias Kamli, alleged partner of deceased, in liquor business, has turned hostile and panch witness of the panchnama of the discovery of the weapon from the Accused has also turned hostile. However that fact itself does not absolve the accused from the charges leveled against him, as there is a consistent evidence of the ballistic expert; of the discovery panchnama of the weapons recovered from the Accused; and also evidence to the effect that the bullet article 'I', which was recovered from the dead body of the deceased was fired from the revolver recovered from the Accused. Therefore, according to him this is a case of circumstantial evidence. Therefore, according to him, it is proved that the Accused has committed offence of murder of Bhagwandas Dwarkadas Sindhi punishable under Section 302 IPC, and the trial Court has rightly convicted and sentenced the Accused for commission of the CR.A/1095/1999 20/46 JUDGMENT said offence. He has also pointed out all the details about the Number of the revolvers recovered from Accused No.1. According to him, oral evidence of the IO and the evidence of ballistic expert as well as the contents of the panchnama corroborate each other, therefore, there is no room for doubt about the evidence of the prosecution witness. On the aforesaid premises it is submitted that the appeal lacks merit and deserves to be dismissed. He, therefore, urged to dismiss the Appeal. 10.We have considered the submissions advanced by Mr. J.M.Panchal, learned advocate of the Appellant and Mr. A.J.Desai, learned APP for the Respondent - State of Gujarat. We have perused the impugned judgment and order, and the set of evidence supplied by him during the course of his submission. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. 11.At the outset be it stated that so far as the homicidal death of deceased Bhagwandas Dwarkadas Sindhi is concerned, no dispute is raised by the learned advocate of the Accused before this Court. He has admitted that the deceased has died homicidal death. However, we have perused the evidence of PW-9 – Dr. Dilipbhai Manubhai CR.A/1095/1999 21/46 JUDGMENT Desai (exh. 101), who has performed autopsy on the dead body of the deceased and has issued port mortem report at exh. 60. On conjoint reading of oral evidence of Dr. Dilip Manubhai Desai and P.M. Report, there is no manner of doubt that the deceased Bhagwandas Dwarkadas Sindhi has died homicidal death. The trial Court has therefore, rightly recorded the finding that the deceased died homicidal death and we affirm the said finding. 12.At this stage, it may also be required to be noted that so far as Accused No. 14 and 24 are concerned, they died during the pendency of the trial, therefore, the case against them stood abated. The trial Court has acquitted Accused Nos. 2 to 13 and 15 to 23 of Sessions Case No. 13 of 1997 and Accused Nos. 25 and 26 of Sessions Case No. 14 of 1997, and the State has not preferred any Appeal against the acquittal. Therefore, we need not examine the evidence in connection with those accused. 13.The only question which is required to be examined by us is as to whether the Accused has committed offence of