CR.A/12719/1996 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 127 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ?No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge ? No. ========================================================= PATHAN KAYAMKHAN PIRMAHAMMAD & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : NOTICE SERVED for Appellant(s) : 1, 3,MR VIJAY H PATEL for Appellant(s) : 1 - 3.MR SALIM M SAIYED for Appellant(s) : 2, PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 07/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellants have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, CR.A/12719/1996 2/11 JUDGMENT 1973 (hereinafter referred to as 'Cr. P.C.”) and challenged the judgment and order of conviction and sentence rendered by learned Addl. Sessions Judge, Mehsana at Patan on 14-11-1995 in Sessions Case No.101 of 1995, convicting the appellants for the offence punishable u/s 302 read with Section 114 of the I.P.Code and sentencing them to undergo life imprisonment and to pay fine of Rs.1000/- and in default thereof to undergo rigorous imprisonment for one month. 2. The appellants and other six persons were prosecuted for the offences punishable u/s 302, 147, 148, 149, 120-B, 504 of the I.P. Code and u/s 135 of the Bombay Police Act. 3. According to the prosecution case on 20-1-1995 around 1-00 and 1-30 in the noon the appellants with six other persons, armed with deadly weapons like sword, dagger, 'dharia' and knife, hatched a criminal conspiracy, formed an unlawful assembly with common object to assault deceased Sabbir and gave abuses and in furtherance thereof used force and attacked Sabbir with deadly weapons. Appellant – Jamilkhan Mahemmadkhan hit dagger on the chest of Sabbir with an intention to cause his death and thereby committed offences punishable u/s 302, 147, 148, 149, 120-B, 504 of the I.P. Code and u/s 135 of the Bombay Police Act. 4. On the basis of complaint lodged by Abbasbhai Mahmmadbhai before Siddhpur Police Station an CR.A/12719/1996 3/11 JUDGMENT offence was registered as I – CR No. 13 of 1995 for the aforesaid offences and investigation was started. On completion of investigation, charge sheet against the appellants and other persons for the aforesaid offences was laid before learned J.M.F.C., Siddhpur. As the offences were triable by Sessions Court, the case was committed to the Sessions Court at Mehsana camp at Patan and it was registered as Sessions Case No. 101 of 1995. 5. Learned Sessions Judge, Mehsana Camp at Patan framed charged Exh. 10 against the accused for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried. Therefore the prosecution adduced evidence. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused denied having committed the offence in their further statements recorded u/s 313 of the Cr. P.C. and stated that they have been falsely implicated in the offence. 6. After hearing learned A.P.P. for the – State and learned advocate for the accused, the trial court convicted the appellants and sentenced them as mentioned hereinbefore but acquitted other accused. Being aggrieved by the said decision, present appeal has been preferred by the appellants. 7. We have Mr. Vijay H. Patel for appellants No.1 CR.A/12719/1996 4/11 JUDGMENT and 3 and Ms. Salim M. Saiyed learned advocate for appellant No. 2 and Mr. Maulik G. Nanavati learned A.P.P. for respondent – State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 8. Mr. Patel learned advocate appearing for appellants No.1 and 3 submitted that it is the case of the prosecution that they have caught hold of the deceased and facilitated appellant No. 2 in inflicting the fatal injuries. But there is no direct and cogent evidence in that regard on record. Therefore, the trial court has committed serious error in convicting appellant Pathan Kayamkhan Pirmahammad and appellant Pathan Abdulraheman Mahammadkhan for offence of murder. 9. Learned advocate Mr. Saiyed for appellant No. 2 submitted that there no sufficient evidence on record to convict appellant for the offence of murder as there are discrepancies in oral evidence and therefore appellant No.2 could not have been convicted for offence of murder. 10. Learned A.P.P. Mr. Nanavati submitted that the evidence on record indicates that appellant Pathan Kayamkhan Pirmahammad and appellant Pathan Abdulraheman Mahammadkhan caught hold of CR.A/12719/1996 5/11 JUDGMENT the deceased and appellant Jamilkhan Pathan inflicted the fatal injuries. Therefore, no interference is warranted in the impugned judgment. 11. The prosecution examined several witnesses to prove the case. According to prosecution, P.W. 2 Abbasbhai the first informant, P.W. 3 Mahebubbhai and P.W. 4 Bhupataji were the eye witnesses to the incident. P.W. 2 has in his deposition stated that the accused were armed with deadly weapons and appellants Kayamkhan and Abdulraheman caught hold of Sabbir and appellant Jamilkhan gave dagger blow on the chest of Sabbir. The witness has denied that this fact of catching hold of Sabbir is not alleged in the F.I.R. The prosecution has produced F.I.R. at Ex.59. It appears that this fact is not stated in F.I.R. Therefore, it becomes clear that the witness has improved his version with a view to implicate the appellants in the offence. 12. The evidence of P.W. 3 Mahebubbhai Samashubhai Exh. 32 and P.W. 4 Bhupataji Ghemarbhai Thakor Exh. 33 indicates that appellant Pathan Kayamkhan Pirmahammad and appellant Pathan Abdulraheman Mahammadkhan caught hold of the deceased and appellant Jamilkhan Pathan gave dagger blow on the chest CR.A/12719/1996 6/11 JUDGMENT of the deceased. Both these witnesses have denied that they have not stated this fact of catching hold of the deceased in their police statement. 13. The Investigating Officer P.W. 16 Naranbhai Gangaram Patel Exh. 57 in his deposition has admitted that P.W. 3 and P.W. 4 have not stated in their statement that appellant Pathan Kayamkhan Pirmahammad and appellant Pathan Abdulraheman Mahammadkhan caught hold the deceased. This clearly indicates that the witnesses have improved their version. 14. F.I.R. Produced Exh. 59 alleges that appellant Jamilkhan Pathan hit dagger blow on the chest of the deceased, but it does not indicate that appellant Kayamkhan and appellant Abdulraheman caught hold of the deceased. F.I.R. gives details about the manner in which the incident occurred. It does not except, presence of the appellants Kayamkhan and Abdulraheman with weapons and attack attribute any role. Even accusation in that regard is also vague. It is general tendency of the witnesses to rope in as many as possible. Therefore, it is difficult to believe that the appellants Kayamkhan and Abdulraheman caught hold of the deceased. If these accused were armed with deadly weapons, CR.A/12719/1996 7/11 JUDGMENT they would have inflicted injuries with the weapon to the deceased and would not have merely caught hold of the deceased. In view of this evidence, it appears that improvement in the oral deposition of the witnesses that appellants Kayamkhan and Abdulraheman caught hold of the deceased is made only with a view to rope appellant Pathan Kayamkhan Pirmahammad and appellant Pathan Abdulraheman Mahammadkhan in the offence. Therefore, it would not be safe to rely upon this evidence to connect appellant Pathan Kayamkhan Pirmahammad and appellant Pathan Abdulraheman Mahammadkhan with the offence. In our view, learned trial Judge committed serious error in relying upon the evidence of these witnesses in connecting these appellants with the offence. 15. As observed earlier F.I.R. does not implicate the appellants Kayamkhan Pathan and Abdulraheman Pathan but they were implicated in the oral deposition of P.W. 3 and P.W. 4, whose deposition could not be relied upon to connect the appellants with the offence. Except oral improved version of the witnesses there is no other cogent, convincing and reliable evidence on record to connect these appellants with the offence. Therefore, the learned trial Judge committed error in convicting appellant Pathan CR.A/12719/1996 8/11 JUDGMENT Kayamkhan Pirmahammad and appellant – Pathan Abdulraheman Mahammadkhan for the offence punishable u/s 302 and 114 of the I.P. Code. Therefore, conviction of these appellants is required to be set aside and both these appellants are required to be acquitted of the offence charged against them. 16. So far as conviction of appellant Jamilkhan is concerned, the prosecution examined P.W. 1 Dr. Janki Shirishkuamr Pandit at Exh. 28. She is the witness who has performed the postmortem examination of the dead body of the deceased. According to the witness the deceased had following injuries: i. Stab wound on chest at left nipple joint medial and upward to left nipple oblique in direction elliptical in shape. (3 cm x 1 cm) 16 cm. Downward deep and medially. ii. Stab wound of (1 cm x 1 cm x 0.5 cm. Deep elliptical in shape. According to the witness, the injuries were antemortem and injury No.1 was sufficient in the ordinary course of nature to cause death. The witness also deposed that such injury was possible by sharp edged weapon like dagger. CR.A/12719/1996 9/11 JUDGMENT 17. Postmortem Report Exh. 29 indicates the injuries and cause of death. Column No.17 of Postmortem Report indicates two external injuries. The cause of death is shock due to internal and external haemorrhage due to injury to vital organs. The evidence of P.W. 2, P.W. 3 and P.W. 4 indicates that appellant Jamilkhan gave dagger blow on the chest of Sabbir. F.I.R. also alleges that dagger was hit on the chest. Considering the evidence of these witnesses in light of medical evidence, it is proved beyond reasonable doubt that deceased died on account of injuries sustained by him with dagger and that death of Sabbir was homicidal in nature and fatal injury was caused by appellant Jamilkhan Pathan. Considering the fact that the fatal injury was caused on chest it cannot be said that injury was not on vital organ. Therefore, the learned trial Judge was justified in convicting appellant No. 2 – Jamilkhan Mahmadkhan Pathan for the offence punishable u/s 302 of the I.P. Code. 18. In view of above, learned advocate Mr. Saiyed has failed to point out any legal infirmity in the impugned judgment. Therefore, no interference is warranted with regard to conviction of appellant – Jamilkhan Mahammadkhan for the offence punishable u/s 302 of the I.P. Code. 19. For the reasons recorded in the judgment, the CR.A/12719/1996 10/11 JUDGMENT present appeal is partly allowed and so far as appellant No. 2 – Pathan Jamilkhan Mahammadkhan is concerned, the judgment and order of conviction and sentence dated 14-11-1995 passed by the learned Additional Sessions Judge, Mehsana Camp at Patan in Sessions Case No. 101 of 1995 for the offence punishable u/s 302 of the I.P. Code is confirmed. So far as appellant No. 1 Pathan Kayamkhan Pirmahammad and appellant No. 3 – Pathan Abdulraheman Mahammadkhan are concerned, the judgment and order of conviction and sentence dated 14-11-1995 passed by the learned Additional Sessions Judge, Mehsana Camp at Patan in Sessions Case No. 101 of 1995 for the offence punishable u/s 302 and 114 of the I.P. Code is set aside and both these appellants are hereby acquitted of the offence charged against them and they are ordered to be set free forthwith, if they are not required in any other offence. The fine, if paid, be returned to present appellant Nos.1 and 3. 20. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad,J.) (Bankim N. Mehta, J.) /JVSatwara/ CR.A/12719/1996 11/11 JUDGMENT