IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 471 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE B.J.SHETHNA and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 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 Civil Judge? : NO -------------------------------------------------------------- KADAR SATTAR ALIAS MELO ANSARI GARANA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 471 of 1993 MR YOGESH S LAKHANI for Petitioner No. 1 MR RAVAL A.P.P.for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.J.SHETHNA and MR.JUSTICE D.P.BUCH Date of decision: 11/01/2002 ORAL JUDGEMENT (Per : MR.JUSTICE D.P.BUCH) 1. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') challenging the judgment and conviction order dated 30.1.1992 recorded by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No.56/92 under which the learned Judge found present appellant original-accused No.2 guilty and convicted him for the offence punishable under Section 302 I.P.C. and sentenced him to suffer R.I. for life. The learned Judge further directed him to pay fine of Rs.500/-. The learned Judge also directed that in case of nonpayment of fine, the appellant shall undergo further R.I. for two months. 2. By the said judgement and order, the learned Judge also found that original accused No.1 was not guilty and, therefore, the said original accused No.1 came to be acquitted by the learned Judge. 3. The facts of the case leading to this appeal may be briefly stated as follows. 3.1. On 3.5.1992, the incident took place at Jamnagar. There was a lunch arranged at the place known as Sayed Ali Pir Dargah. The deceased Razak Iqbal, his brother Akbar Iqbal and others had gathered together for taking lunch at the said place. At about 1.30 p.m., the deceased brother of Akbar had gone to wash his hands. At that time there was some sprinkling of water drops on the person of the present appellant Kader Satar and one Hussain Babu Garana who was accused No.1 and who has been acquitted by the Trial Court. That because of the said event, the present appellant started giving abuses at which the deceased requested him not to give abuses. At that time, there was some oral exchange of words which ended in physical quarrel between the two i.e., between the deceased and the appellant, even the shirt of the deceased was torn in the said scuffle. One Hanif AliMahmad had given him a shirt which was then put on by the deceased. Other persons present there intervened and, therefore, the said matter came to an end. Thereafter, the deceased, his brother Akbar and others sat for lunch, and after completing the lunch, the deceased and his brother Akbar went out of the said place of lunch. One Sayed Mohmad was also following them. 4. Thereafter, when they were entering GadarShah Pir Street, the present appellant as well as co-accused Hussain Garana came from the adjoining street; out of them, the present appellant came running and gave a knife blow on the chest of deceased Razak, which struck on the left side of the chest of the deceased. Because of the said knife blow, the deceased fell on the road and wound started bleeding. After the said incident, the co-accused Garana and the appellant had ran away from the said place. The witness Sayed Mohmad Arif Aziz, who was just following them arrived there and thereafter the father of the deceased had also arrived there. About 100-150 persons had gathered on the spot. Thereafter the deceased was taken to the Irwin Hospital at Jamnagar. The deceased was taken to the emergency ward of Irwin hospital at Jamnagar. The Doctor examined the deceased and declared him dead. Thereafter, First Information Report was lodged. Postmortem of the dead body of the deceased was carried out. Mudammal articles were seized. The appellant and co-accused both were arrested; statements of witnesses were recorded; relevant panchnama was drawn, inquest report was also drawn and at the end of the investigation, the Investigating Officer found that the appellant as well as the co-accused both had committed the aforesaid offence of murder of the deceased. Therefore, chargesheet was filed before the Court at Jamnagar. The learned Magistrate found that the offence punishable under Section 302 I.P.C. was exclusively triable by the Court of Sessions and, therefore, the case was committed to the Court of Sessions and, there it was registered as Sessions Case No.56/92. The learned Additional Session Judge ascertained that necessary copies of police papers were supplied to the appellant as well as to the co-accused and thereafter charge was framed at Exh.3. on 19.11.1992, for the said offence against the accused persons. There it was also alleged that the present appellant had held a knife in public place in violation of the notification of the District Magistrate and thereby committed offence punishable under Section 135 of the Bombay Police Act. The appellant as well as co-accused pleaded not guilty to the said charge and, therefore, the prosecution examined the witnesses. At the end of the Trial, the learned Additional Sessions Judge recorded further statements of both the accused persons under Section 313 of the said Code. Arguments were heard and the learned Judge pronounced his judgment holding that the first accused was not found guilty and, therefore, he came to be acquitted. So far as the present appellant is concerned, the learned Judge found that the evidence on record was sufficient to hold him guilty and, therefore, he was convicted for the offence punishable under Section 302 I.P.C. After hearing the defence on the point of quantum of punishment, the learned Judge found that this was not the rarest of rare offence and, therefore, the learned Judge sentenced the appellant to suffer R.I. for life. The learned Judge also directed him to pay fine of Rs.500/- and in default of payment of fine he was directed to undergo further R.I. for two months. Necessary set-off was also provided in the order. 5. Feeling aggrieved by the said judgment and conviction order of the learned Additional Sessions Judge, the appellant, herein, has preferred this appeal before this Court. It has been mainly contended here that the learned Additional Sessions Judge has not properly appreciated the evidence produced before him; that the learned Judge ought to have held that the present appellant had not committed any offence; that the learned Judge has not properly appreciated the medical opinion that the offence has not been committed by the weapon produced before the Court; that even the evidence of the eye witnesses with respect to the weapon used at the offence is doubtful and it is not in accordance with the medical evidence and, therefore, the learned Additional Sessions Judge ought to have rejected the evidence of eye witnesses; that the learned Judge has omitted to consider that certain panch witnesses have turned hostile and have not supported the case of the prosecution; that though the incident is said to have taken place in a residential locality, no independent witness has been examined in support of the two eye-witnesses said to have been present there at the time of the offence. That even the incident of lunch has been falsely fabricated and there is no material to show that such a lunch was arranged as deposed by the two witnesses; that even the postmortem note is not in conformity with the allegations of the lunch arranged as aforesaid. That there was previous scuffle between the appellant and the deceased and this fact ought to have been properly appreciated by the Trial Court; that even the shirt in question has been wrongly brought in mudammal and the evidence with respect to it is contradictory; that the F.I.R. was filed late and there is a case of doubtful identity with respect to the present appellant; that certain witnesses important for the purpose of fair trial have not been examined by the prosecution; that on the whole, the judgment and the conviction order of the Trial Court are illegal and erroneous and deserve to be set aside. The appellant has therefore prayed that the present appeal be allowed, the judgment and conviction order be set aside, the appellant be acquitted for the charges levelled against him and he be set at liberty forthwith. 6. On receiving the appeal, it was ordered to be admitted but bail was refused. At the hearing, the arguments were advanced on behalf of the appellant by Mr.Y.S. Lakhani whereas arguments were advanced on behalf of the State by Mr.Raval, learned A.P.P. They have taken us through the oral and documentary evidence as well as through the reasoning and findings recorded in the judgment by the learned Trial Judge. We have considered the fact situation. We have also considered the oral and documentary evidence as well as the reasonings and findings of the Trial Court. We have also considered the relevant citations shown to us by the learned advocates for the parties in support of their arguments. However, on overall assessment of evidence on record, we find ourselves unable to agree with the arguments advanced by the learned advocate for the appellant. By and large, we are in general agreement with the reasonings and findings of the learned Trial Judge holding the appellant guilty for the aforesaid offence. In that view of the matter, it is not very much necessary to discuss the evidence at length which would amount to repetition of whatever is stated by the learned Trial Judge in the course of his judgment. On this point we would stand fortified by the decision of State of Gujarat v. Mansukhlal Lovchand Choksi reported in 1993 (2) G.L.H. 849. 7. At the same time, when the arguments have been advanced at length by the learned advocates for the parties it would be in the fitness of things to deal with those arguments atleast in a brief manner. 8. So far as the prosecution is concerned, it has examined following witnesses for proving the case against the appellants. P.W.1 Ichashanker Exh.8 - who prepared the map Harukhshanker of the place of the offence. P.W.2 Akbar Iqbal (brother & Exh.10 - who filed F.I.R. eye-witness) P.W.3 Sayed Mohmad Arif Aziz Exh.11 - Eye witness. P.W.4 Hanif AliMohmad Exh.12 - Eye witness. P.W.5 Dr.Satish D. Kalel Exh.14 - who performed postmortem of the deceased. P.W.6 Allarakha Gagubhai Exh.19 - Panch. P.W.7 Harun Ishaq Exh.21 - Panch. P.W.8 Mohmad Sidik Abdul Karim Exh.23 - Panch (hostile). P.W.9 Anirudh Sinh Devubhai Exh.25 - Panch (hostile). P.W.10 Dilubha Ranabhi Exh.27 - P.S.O. P.W.11 Paresh Hemantbhai Exh.32 - Panch (hostile) P.W.12 Jayendra Sinh Dinubha Exh.34 - Panch (hostile) P.W.13 Ismail Daud Exh.35 - Panch (hostile) P.W.14 Manilal K. Damor Exh.36 - Investigating Police officer. P.W.15 Chunilal Babulal Exh.48 - Panch (hostile). 9. It is not much in dispute that the brother of the deceased and the informant Akbar Iqbal and his companion are the eye witnesses of the present case. They are the only persons shown and examined as eye witnesses. Out of them Akbar, Exh.10 is the brother of the deceased and, therefore, he would naturally have interest against the appellant and he would have some interest in seeing that the appellant is convicted. We are therefore, aware of this situation and, therefore, it would be necessary to undertake the scrutiny of the evidence of this witness very closely. This witness has stated on oath before the Trial Court that on 3.5.92 that he alongwith the deceased had gone to attend a lunch arranged at Sayed Pir Dargah at about 1.30 to 1.45 p.m.; then he has deposed about the initial hot exchange of words between the appellant and the deceased; then according to him both of them had some scuffle and in the process, the shirt of the deceased was torn and it was replaced by the shirt of Hanif AliMohmad. Thereafter, they took their meals and proceeded towards Gadar Shah Pir street. Thereafter, the witness has further stated that as soon as they were about to enter the said street, the deceased and the co-accused Babu Garana came there from the adjoining street. That the appellant had a knife in his hand and he gave a knife blow on the chest of the deceased which struck on the left side of his chest. As a result, the deceased fell on the road and the injury started bleeding. That Sayed Mohmad Arif Aziz had also arrived there and other persons had also gathered there. 10. P.W.3 Sayed Mohmad Arif Aziz Exh.11 has provided full support and corroboration to the evidence of the informant Akbar. He was just following the deceased and the informant at a distance of about 5 feet and he has also deposed on oath that when these two brothers were about to enter the street, the appellant came in running from the adjoining street with knife in his hand and dealt a knife blow on the left side of the chest of the deceased. He had no reason to falsely implicate the appellant in a serious offence of murder of the deceased. He is not thick with the deceased/Akbar. He had no axe to grind against the appellant. He has stood the test of cross-examination and there also, his evidence has not been shaken to any extent. The Trial Court was justified in relying upon his evidence. 11. In fact, he seems to have been a witness to the incident at the place of lunch also. But he does not speak anything about it. Nonetheless, the learned Advocate for the accused persons before the Trial Court had brought out this contradiction on records which shows that it was the case before the police that he had seen the said incident also. Any way, his evidence fully supports the evidence of Akbar the informant so far the offence of murder is concerned. 12. Even the previous episode between the deceased and the appellant about seven to eight months before the date of the offence of murder of the deceased has been brought on records through his cross-examination by the learned advocate for the defence which proves that there was acquaintance and enmity between these two groups. He has denied that he had lent Rs.50,000/- to Rs.60,000/- to the deceased. There is no further evidence on records on this point. 13. P.W.4 Hanif Alimahmad Exh.12 has given evidence about the quarrel between the deceased and the appellant at the place of lunch. He had given his bushshirt to the deceased, as per his evidence. He had identified his blood stained shirt from mudammal articles which the deceased had put on at the time of offence and which was referred as such in his evidence by Dr.Kalel also. 14. On the evidence of this witness it has been strenuously argued by Mr.Lakhani that though the place of lunch is not away, no other witness has been examined in support of the evidence of this witness. Now there is no evidence to show that some persons were standing outside the place where the lunch was arranged who had witnessed the incident in question. Therefore, there was no question of examination of such witnesses to support the evidence of this witness. 15. It is next contended that the entire story of lunch has been subsequently fabricated and no such lunch was arranged and the person arranging the lunch has not been examined. Now the arrangement of lunch is not the major part of the story of the prosecution. It is true that because, some incident had taken place at the place of lunch little before the incident in question, the person who had arranged the lunch could not be treated to be a necessary witness. It is nobody's case that the said person was present when the initial scuffle took place between the deceased and the appellant. It is nobody's case that he was standing outside the premises and had witnessed the incident in question. Therefore his evidence would not have led us to any particular direction. The learned advocate for the appellant has argued that even the fact of arrangement of lunch has been seriously disputed by the appellant and, therefore, the said witnesses were required to be examined. Now after all the challenge would take place only when the trial took place. Therefore, really speaking when the fact of lunch is not at all a major part of the incident in question, and when the person who had arranged the lunch was not necessary witness, non examination of the said witness cannot be treated to be fatal on the case of the prosecution. 16. The learned advocate for the appellant has also argued at length that the evidence of witnesses is contrary to the medical evidence, since the postmortem note shows no presence of undigested food in the stomach of the deceased. It would be necessary to read the evidence of Doctor Kalel a little closely. The witness Dr.Kalel is at Exh.14. It has come out from his evidence that if the food particles are mixed up with the blood then, it would not be possible to identify the same. He also says that rice or mutton could or could not be identified in the pool of blood. Therefore simply because the Doctor had not noticed the existence of undigested food in the stomach of the deceased, it could not be said that the deceased had not taken any food little before the incident in question. In that case, the entire story of the lunch cannot be treated to be a fabricated one. From this angle it cannot be said that the evidence of eye witnesses is contrary to the evidence of the Medical Officer and the postmortem note, and, therefore, the evidence of eye witnesses should be rejected by this Court. 17. It was then argued by the learned advocate for the appellant that the place of offence is a public place at the junction of streets. The place is surrounded by a residential locality also. It is therefore contended that so many persons were available as eye witnesses and they have not been examined. It is further argued that even the place where the lunch was arranged is also not far away from the scene of the offence and, therefore, some witness from that place could also be available to the prosecution for supporting the evidence of the brother of the deceased, Akbar Iqbal. 18. The fact is not in dispute. It is true that the scene of offence is not far away from the place where the lunch was arranged. At the same time there is no evidence to show that some persons were standing outside that place so as to witness the incident in question. Therefore, even if the place of lunch was not away from the scene of the offence, there is nothing on record to propose the presence of some witnesses outside the said place in order to witness the incident in question. 19. So far the surrounding houses are concerned, some windows open towards the place where the incident took place. But at the same time, the incident had taken place in a very short time. The deceased and his brother Akbar were about to enter the street. The present appellant rushed from the adjoining street. He gave a knife blow on the chest of the deceased and then ran away. Looking to the time sphere it would not be possible to hold that the incident would have been witnessed by so many persons since the persons residing in the surrounding areas may not be present at the window, to witness the incident. Even the charge also shows that the incident took place at about 2.30 p.m.. Therefore, normally, the persons residing in the neighbourhood may not be sitting at the window to witness the incident. Even with respect to the persons passing through the said area, it may be said that they may be little late. They may not have witnessed the appellant causing injury to the deceased. Moreover, apart from the evidence of Akbar, there is evidence of another eye witness Sayed Mohmad Arif Aziz at Exh.11, who has clearly supported the evidence of Akbar Iqbal and there is no material contradiction between the evidence of these two witness. The said witness Exh.11 is not proved to have any interest in favour of the deceased or against the appellant. His evidence completely corroborates the evidence of Akbar. Both have said that the deceased and witness Akbar Exh.10 were about to enter the street and at that time, the appellant came running from the adjoining street and gave a knife blow on the chest of the deceased. In fact, Akbar Exh.10 was just going by the side of the deceased and Sayed Mohmad Arif Aziz, Exh.11 was just following them. Looking to the evidence of these two witnesses, there is hardly any possibility of any other independent witness who may have witnessed the incident in question. Again it was 2.30 p.m. and, therefore, so many persons would not be passing at that time at the place of incident to witness the incident. Even otherwise, number of witnesses is not a relevant or material aspect to prove the case of the prosecution. It is said that the evidence is required to be weighed and it is not required to be counted. Sometimes, there may be number of witnesses and yet their evidence may not be accepted by the Court. At the same time, the conviction can also be based on the evidence of a solitary witness. Therefore, when two witnesses have consistently given evidence supporting the case of the prosecution, it cannot be said that some more witnesses should have been examined by the prosecution. 20. It is then contended that the knife produced as mudammal article is not proved to be the knife with which the injury was caused by the appellant to the deceased. It is true that the medical evidence shows that the present injury on the person of the deceased could not be caused by the mudammal knife. At the same time, it is also the matter on record that the brother Akbar Iqbal has clearly stated that this was not the knife with which the offence was committed. In any way, it is not necessary that the offence must be proved to have been committed by the weapon which is produced as a mudammal article before the Court, since the mudammal weapon may either be attached from the possession of the accused or be discovered by the accused. 21. It is then argued that according to the evidence of the witnesses, the blade of the knife used by the appellant for committing the offence was like a saw and according to the medical evidence the injury could not have been caused by such a knife. Now as said above, the incident had taken place in a very short time. The appellant had come to the spot running to cause injury to the deceased and had run away soon after inflicting one knife blow. In that view of the matter, the witnesses may not have a very clear and close vision of the blade of the knife handled by the appellant at the time of committing the offence. Therefore, this cannot be treated to be a very major and important contradiction between the medical evidence and the evidence of two eye witnesses. In that view of the matter, the evidence of the two eye witnesses cannot be rejected on this consideration. 22.