CR.A/361/1999 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 361 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= NIZAMMIYA AKBARMIYA SAYEED - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1 - 3. Mr.P.D.Bhate, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE DN PATEL Date : 24/06/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/361/1999 2/19 JUDGMENT 1. This appeal arises out of the judgment and order rendered by the Sessions Court, Mehsana camping at Patan in Sessions Case No.163 of 1997 on December 15, 1999. The Sessions Court tried the appellants for the offences punishable under Sections 302, 307, 324, 354, 294-B and 34 of Indian Penal Code, Section 25-C of the Arms Act and Section 135 of the Bombay Police Act. The Sessions Court recorded conviction of three accused persons before it for offence punishable under Sections 302 read with Section 34, Section 307 read with Section 34 and sentenced them to undergo imprisonment for life and pay a fine of Rs.1000/- for the offence punishable under Section 302 read with 34 and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- each and in default, to undergo simple imprisonment for six months respectively. The Sessions Court also convicted original accused Nos.1 and 3 Nizammiya and Aminmiya for the offences punishable under Section 25(1-A) of the Arms Act and sentenced both of them to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- each and to undergo simple imprisonment for a period of six months in case of default in payment of fine. All the sentences were ordered to run concurrently and the accused persons were given the benefit of set off. The accused persons were acquitted for rest of the charges giving them benefit of doubt. Aggrieved by the said judgment and order, the appellants original accused Nos.1, 2 and 3 in the said Sessions Case respectively CR.A/361/1999 3/19 JUDGMENT have preferred this appeal. 2. We have heard learned Senior Advocate Mr.K.J.Shethna for the appellants and learned APP Mr.Bhate for the respondent State. We have also examined R & P which is before us. 3. The facts of the case in brief can be stated thus : 3.1. An FIR came to be lodged by Zakirhusain Faridmiya Saiyed on 6.3.1997 against the appellants and one Maiyuddin Akbarmiya Saiyed alleging that on 6.3.1997 at about 9.30 a.m. when the first informant and his two elder brothers, sisters Jebunben and Nasimben, sister-in-law Mehmudabibi Asgarmiya and their children were all taking tea outside the room in their field, Maiyuddin Akbarmiya, Nizammiya Akbarmiya and Aminmiya Akbarmiya who are their neighbours came there with guns in their hands. They were accompanied by Mustufamiya Akbarmiya who had Dhariya in his hands. They all came near to their house in the field and challenged them giving abuses. Therefore, the complainant's brother Sagirmiya went to the place where these persons were standing to cool them down when Maiyuddin Akbarmiya fired his gun on Sagirmiya, as a result of which the left eye ball of Sagirmiya came out. On hearing the gun shot the first informant and his brother Murtuzamiya; both, rushed to the place. At that time, Maiyuddin Akbarmiya and Nizammiya Akbarmiya fired gun on them CR.A/361/1999 4/19 JUDGMENT which hit his brother on head and chest as a result of which, his brother fell down. The first informant was also hurt because of firing by Aminmiya Akbarmiya. According to the first informant, his nephew Farid Zubermiya was assaulted by Mustufa Akbarmiya with dharia and was injured on the left hand. Mehmoodabibi and Zebunben were also assaulted upon and hurt was caused to them by butt of the gun and handle of dharia beside kick and fist blows. According to the first informant, on hearing the above and gun fire, Bhupatji Bhaguji Rajput and others came to the spot and the four assailants went away. Both his brothers died on the spot and were taken to Siddhpur Government Hospital in a jeep car. The first informant himself was admitted in the hospital and was under treatment when his FIR was recorded. 3.2. On the basis of the First Information Report, an offence was registered and investigated. The police recorded the statements of various witnesses, panchnama was drawn, muddamal seized and sent to FSL for ballistic examination and ultimately, the police having found sufficient material against the accused, filed the chargesheet in the court of JMFC, Siddhpur. Since the offences were triable by the court of Sessions exclusively, the case was committed to the court of Sessions by learned JMFC and Sessions Case No.163 of 1997 came to be registered. CR.A/361/1999 5/19 JUDGMENT 3.3. On considering the evidence led by the prosecution, the Sessions Court recorded conviction for all the accused before it and hence, this appeal. 3.4. The fourth accused Maiyuddin was absconding. However, subsequently, he came to be arrested and tried. We are informed that the Sessions Court, upon considering the evidence in that trial, has acquitted the said fourth accused of charges against him. 4. We have heard the learned advocate Mr.K.J.Shethna for the appellants. He has taken us through the Record and Proceedings and has emphasized following aspects to assail the judgment of the trial Court. (1) The complainant's side and the accused side are close relatives but the relations are strained and they have a long drawn animosity. Both the sides have lost number of lives. Mr.Shethna stated that the prosecution story, therefore, may be viewed with caution in light of the enimical relations of the parties. (2) The motive that is sought to be pressed by the prosecution does not inspire any confidence. It is a petty quarrel which is sought to be projected as a motive for the accused persons to commit such a heinous crime of taking two lives and causing hurt to several persons. CR.A/361/1999 6/19 JUDGMENT (3) An attempt is made by the prosecution to implicate maximum number of family members of the accused by showing the use of gun by three persons. (4) It has also been contended that the story of use of dharia is also a concoction, is not believable and is not supported by any evidence except oral version of witnesses who are on enimical terms. (5) It is also contended that it has come in evidence that Akbarmiya – father of the accused was murdered by the prosecution side 15 years back. It has also come in evidence that the disputes were resolved prior to the incident and, therefore, there was no motive on part of the accused appellants to commit the offence. 4.1. Mr.Shethna submitted, therefore, that if the prosecution evidence is viewed and assessed keeping these aspects in mind, the evidence would not carry any weight good enough to record or to confirm the recording of conviction. Mr.Shethna, therefore, submitted that the appeal may be allowed and the conviction may be set aside. 4.2. It was contended by Mr.Shethna that it has come in evidence that the incident occurred in the field where the castor plants were grown. It has also come in evidence that these plants had grown very tall and, therefore, the vision would be obstructed by these grown up plants. The eye witnesses who claim CR.A/361/1999 7/19 JUDGMENT to have seen the incident could not have seen the incident and, therefore, their version may not be accepted. Though not very empathetically, Mr.Shethna submitted that co-accused Maiyuddin has been acquitted. The involvement of Maiyuddin is for the same incident, same transaction and was tried with the same evidence and appropriate weightage may be given to this aspect. 5. The appeal is opposed to by learned APP Mr.Bhate. Mr.Bhate submitted that here is a case with unfailing direct evidence of eye witnesses whose presence is established by circumstances in form of injuries sustained by the witnesses themselves. The presence of these witnesses is natural. The evidence of these witnesses is consistent with each other without any contradiction or omissions. Even during cross-examination, no contradiction or omission emerge. Mr.Bhate submitted that it is true that the early disputes were resolved and it is not a case of the prosecution that the earlier disputes had any influence on the incident. In fact, the incident is free from shadow of those earlier incidents which would make the incident more grave. Mr.Bhate submitted that the incident had occurred in broad day light between known persons. The evidence of eye witnesses is consistent and there is no reason to disbelieve the evidence which clearly implicate the accused persons. The version of the eye witnesses is fully corroborated by the medical evidence as well as the experts evidence from the FSL. CR.A/361/1999 8/19 JUDGMENT 5.1. It was lastly submitted that an attempt is made to raise doubt about the witnesses having witnessed the incident by contending that the incident took place in the field where there was castor plantation and the trees were fully grown which would have made it not possible for the witnesses to see the occurrence. However, Mr.Bhate submitted that if the evidence of the witnesses is seen and the panchanama of place of incident besides the map prepared by the Revenue Circle Inspector is seen, it would make it clear that the incident has occurred though in the field where the castor plantation was there, but near the edge. The growth of castor plantation, therefore, was of no significance. In fact, there was no castor plantation between the place of incident and the house where the complainant and witnesses were sitting wherefrom they have seen the incident. It is also contended that empty cartridge of the gun was found from the field where wheat was grown. This would indicate that the person who fired the gun was standing somewhere near the wheat crop if not in the wheat crop. Mr.Bhate submitted, therefore, that the height and growth of castor plants was of no significance. It was, therefore, contended that the trial Court was justified in recording the conviction. All relevant aspects have been considered by the trial Court in their proper perspective and the appeal may, therefore, be dismissed. CR.A/361/1999 9/19 JUDGMENT 6. Before we proceed to consider the merits of the appeal, we propose to take up the last contention of Mr.Shethna first namely that co-accused Maiyuddin who was absconding when the present trial took place was subsequently tried and was acquitted by the Sessions Court and this aspect may be given due weightage. In this regard, we may refer to the decisions in case of Rajan Rai V/s State of Bihar, (2006)1 SCC 191 and Karan Singh V/s The State of Madhya Pradesh, AIR 1965 SC 1037. 6.1. It has been clearly held by the Apex Court that the judgment of acquittal of co-accused rendered in earlier trial arising out a same transaction is wholly irrelevant in case of an accused who is tried separately. The judgment would not be admissible under Sections 40 or 44 of the Evidence Act. The case of acquittal of co-accused was decided on the basis of evidence led in that case while the case on hand will have to be decided only on basis of evidence adduced before the Court during the course of trial. Under the circumstances, the acquittal of co-accused Maiyuddin loses significance. We have also made inquiry with the Registry to know if any appeal is preferred against the acquittal of said accused Maiyuddin and are informed that no such appeal is preferred or pending with this Court. The said accused Maiyuddin had preferred Criminal Revision Applications No.499 of 2007 and 500 of 2007 which came to be withdrawn by him on 17.10.2007 and 20.2.2008 respectively. CR.A/361/1999 10/19 JUDGMENT 7. At the outset, we may state that the prosecution has examined five eye witnesses in support of its case. P.W.1 Zakirhussain Faridmiya Saiyed is at Exh.22, P.W.5 Bhupatji Bhaguji Rathod is at Exh.30, P.W.6 Mehmoodaben Asgarali Saiyed is at Exh.31, P.W.7 Zebunben Faridmiya Saiyed is at Exh.32 and P.W.8 Faridmiya Zubermiya Saiyed is at Exh.33. 7.1. If we see their depositions, Zakirhussain appears to be brother of the deceased. He says that on the day of incident, they were at the room in their field at about 9-9.30 a.m., were having tea. He speaks about presence of the two deceased – Sagirmiya and Murtuza besides presence of Mehmoodaben, Zebunben and Faridmiya. He says that these persons came to their field and challenged them to come out giving abuses. In response thereto, deceased Sagirmiya went to them and at that time, accused Maiyuddin fired a gun shot at the deceased and caused hurt on the left eye of deceased Sagirmiya. Therefore, the witness and his brother Murtuzamiya went to the field and at that time, Maiyuddin and Nizammiya fired shots from their guns which caused injury to Murtuza on his face, neck and chest by hitting of the pallets. The witness says that Aminmiya fired a shot on chest of the witness. Faridmiya was assaulted upon by Murtuza with dharia and Zebunmiya and Mehboodaben were assaulted by accused persons collectively by giving fist and kick blows. Hearing the hubbub, Bhupatji arrived at the spot and took all injured persons to the government CR.A/361/1999 11/19 JUDGMENT hospital at Siddhpur. Both Sagirmiya and Murtuza died on the spot. This witness identifies all the three accused persons in the Court and states that the main accused Maiyuddin has absconded. The witness identified the weapons also. He states that the incident occurred because there was a quarrel on the previous day for some domestic reason. He also refers to the earlier history of murder of Akbarmiya. 7.2. The witness is put to the test of cross- examination. He admits that the fields of the accused persons and the complainant's side are located near to each other. He admits that the Muslim ladies in their community whether married or otherwise do not engage themselves in labour work and they are usually Pardanasheen. He has made an admission that on hearing the gun shot, he and Murtuzamiya ran towards the spot of incident. He also admits that when he and Murtuza went there, Sagirmiya had already sustained injuries on his eye and was lying on the ground. He admits that he had suffered only one bullet injury. He admits that the burial was over by midnight and he gave the complaint to the police at around 7 p.m. He states that police had noticed butt of the gun and cartridges at the place of incident and was recovered by drawing panchanama. He states that the butt of the gun and the cartridge was found at about a field's distance from the room. The butt was found lying at a distance of about 25 ft., from the place where there was blood stained soil. He denies the suggestion that none of the accused persons had ever fired a gun shot CR.A/361/1999 12/19 JUDGMENT at either him or any of his brothers. The FIR lodged by this witness is at Exh.23 which is, more or less, very much in consonance with the deposition. 7.3. Another eye witness is Bhupatji Bhaguji Rajput. He was working as a labourer with the complainant's side, but barring that he is an independent witness not involved with the inter se relationship or dispute between the complainant's side and the accused side. If his deposition Exh.30 is seen, he says that he was working in the field at the time of incident. Maiyuddin, Nizammiya, Aminmiya and Mustufamiya came there around 9.30 a.m., three of them had guns and one a dharia. Mustufamiya was armed with a dharia whereas rest of them were armed with guns. They were heading towards the well of Zakirmiya. He heard the sound of gun shot at about 9- 9.30 a.m. He, therefore, went to the field where castor plants were grown and he found Sagirmiya and Murtuzamiya lying on the ground. Sagirmiya's left eye was injured and eye-ball had come out of the socket. Murtuzamiya had injuries on head, chest and neck. He and Zebunmiya had come in jeep car of Hasanbhai Nagori and took them at Siddhpur Government Hospital. The witness has been cross-examined at length on the topography of the area but nothing emerges to throw doubt in his deposition or to throw doubt about the version of other witnesses. 7.4. Mehmoodaben Asgarali Saiyed is examined at Exh.31. She also states that they were all having tea CR.A/361/1999 13/19 JUDGMENT around 9-9.30 a.m. She speaks of presence of other family members and then she says that Maiyuddin, Nizammiya, Aminmiya and Murtuzamiya came there and challenged them to come out after giving abuses. She attributes the gun fire to accused Aminmiya for causing injury to Zakirmiya and Maiyuddin as well as Nizammiya for firing three shots. She identifies the weapons so also the accused persons as assailants. She admits that she had not stated in her police statement about the abuses being given by Maiyuddin or giving challenge on arrival at the place of the incident. Rest of the cross-examination does not indicate any material to throw doubt in the deposition of the witnesses. 7.5. Witness Zebunben Faridmiya Saiyed is at Exh.32. She gives the same details as Mehmoodaben so far as the incident is concerned. She attributes the same overact to the accused persons respectively. Besides this, she is herself an injured eye witness just like P.W.1 Zakirhussain. However, we may note that there is no material medical evidence to support her case of having sustained injuries as contended by Mr.Shethna. 7.6. Faridmiya Zubermiya Saiyed is also eye witness who is examined at Exh.33. He was aged 13 when his deposition was recorded. The trial Court put several questions to him to ascertain whether he understands the seriousness of oath and having found that he does, administered oath to the witness. He CR.A/361/1999 14/19 JUDGMENT also supports the prosecution case in detail. He has been cross-examined but nothing emerges. It was contended by learned advocate Mr.Shethna that if the answers to the question put by the Court initially are seen, it would be clear that the witness was well instructed and, therefore, possibility of his being a tutored witness cannot be ruled out and his deposition may not be given much weightage. However, we may remain content at this stage by simply observing that the argument advanced by Mr.Shethna cannot be accepted for the reason that the version given by this witness corroborates the version of other witnesses and, therefore, there is no question of doubting his version as a tutored version. 8. The depositions of these eye witnesses has been assailed by learned advocate for the appellant on the ground that they are all relatives and/or interested witnesses. It is contended that these witnesses are relatives and, therefore, they support the prosecution case. Bhupatji though not a relative, was in employment of the complainant's side and, therefore, would support the complainant side version. Factually, it may be true that the witnesses are relatives of the complainant side. They are all family members except Bhupatji, who in turn, is an employee of the complainant side and may be interested in the complainant. The deposition of these witnesses cannot be thrown out only on this count. Being a witness interested in complainant or complainant side cannot be considered as being CR.A/361/1999 15/19 JUDGMENT interested against the accused. There has to be some specific reason shown which may prompt an interested witness to depose against the accused falsely. Ordinarily, a witness would not implicate an innocent person and let the real culprit go scot-free, more so, if he is interested in the complainant side or the victim. Therefore, some reason/motive has to be shown which would prompt such interested witnesses to depose against the accused falsely. In the present case, we do not find any such material or even suggestion in the deposition of any of these witnesses except the fact that there was an old quarrel which was settled. On the contrary, it has come in evidence that on the day previous to the incident, there was some petty quarrel for household reasons. Otherwise, the depositions of all these witnesses are consistent with each other and go hand in hand. 9. The version emerging from depositions of these witnesses is given a close scrutiny by us for the reason that they are relatives of the deceased and interested witnesses as alleged. We find that the version of these witnesses gets corroboration from medical evidence in form of P.M.Notes of the two deceased and medical certificates in respect of Mehmoodaben Exh.51 and medical certificate of Zakirhussain at Exh.52. 10. The depositions of the eye witnesses is assailed on other grounds, namely that they could not CR.A/361/1999 16/19 JUDGMENT have seen the incident from the place wherefrom they claim to have seen the incident and on the ground that witnesses have admitted that they went to the place of incident upon hearing the gun shot and when they went there, the deceased were lying on the ground. The arguments cannot be accepted on any of these grounds. 10.1. We notice from the panchanama drawn in respect of place of incident and the map drawn on basis of that panchanama that the house where the complainant and his family members were having tea is located on the northern side in the field in which wheat crop was standing. The said field stands in name of Nargisbanu. Adjacent to that field of Nargisbanu on south is the field of Zubermiya Faridmiya where castor crop was standing where the incident has occurred. It was contended that it has come in evidence that the castor plants had grown tall and would obstruct the vision and it would not be possible to see through the plants as to what happens in the field. It is true that the incident occurred in the field where the castor plants were grown but if we see the location, it is on the north- west corner of the field at a distance of about 20ft., from the edge. The resultant effect is that the castor crop would be towards south from the place of incident whereas the house of the complainant's side is on the northern side of the place of incident. The distance between the house and the place of incident is about 400 ft., which cannot be CR.A/361/1999 17/19 JUDGMENT considered too long a distance to unable a person to see the occurrence and identify the persons involved therein, particularly, when the incident occurred in broad day light and the persons involved in the incident were close relatives. The height of the wheat crop was about 2 ft., and would not have obstructed the vision. The incident has occurred in the field of Zubermiya where castor crop was standing on its northern edge and obviously, a person towards north would be able to see the incident occurring. 10.1.1 Apart from this, there is one more aspect which would show that the assailants were nearer the house than the victim for the reason that the victim was found to be lying in the castor field whereas empty cartridge and the butt of the gun is found and recovered from the wheat field. This would mean that the assailants were in the wheat field which falls between the house of complainant and the place where victim