MUSTAK @ KANIO AHMED SHAIKH versus STATE OF GUJARAT
[2020] 5 S.C.R. 360, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Arguments
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MUSTAK @ KANIO AHMED SHAIKH
v.
STATE OF GUJARAT
(Criminal Appeal Nos. 488-489 of 2017)
JUNE 18, 2020
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Penal Code, 1860 – s.307 r/w. s.114 – Arms Act – s.25(1)(B)(a)
– Bombay Police Act – s.135(1) – Attempt to murder – Prosecution
case that victim, who was going to his laboratory was shot on face
in his car from a motorbike driven by the appellant – The first
accused was the pillion rider – The bullet was operated and removed
– Thereafter, the statement of victim was recorded by the investigating
officer – Both appellant and the first accused were arrested – The
Trial court convicted the appellant and the first accused of the
offence punishable u/s.307 r/w. s.114 IPC and s.25(1)(B)(a) of the
Arms Act r/w. s.135(1) of the Bombay Police Act – Both the
complainant -driver of victim and the victim had identified the
appellant – The Trial court sentenced the appellant and the first
accused to undergo rigorous imprisonment for six years – The High
Court enhanced the sentence of imprisonment for offence u/s.307
r/w s.114 IPC to seven years instead of six – Before the Supreme
Court, the appellant contended that identity of the appellant was
not established – Held: The appellant was identified by both the
victim and the complainant apart from pancha witness – Be that as
it may, the testimony of an injured victim is sufficient for conviction
– The complainant had identified the appellant as
the driver of the
motor cycle – The Judicial Magistrate had corroborated
identification of the appellant by the complainant in the Test
Identification Parade – It is also clear that the appellant as well as
the dummies were brought before the Judicial Magistrate before
the witness arrived – The defence was not able to show any infirmity
in the identification parade of the appellant which vitiates the
identification – Further, the pancha witness testified to the recovery
of the weapon in his presence, at the instance of the appellant and
identified appellant in Court – Also, the prosecution had established
from the ballistic report and the evidence of FSL experts that the
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bullet that was extracted from the body of the victim, was fired from
the weapon recovered on the confession of the appellant – The
Trial court had successfully established the chain of events, linking
the crime to inter alia the appellant – Thus, the conviction and
enhancement of sentence imposed on appellant by the High Court
affirmed.
Dismissing the appeals, the Court
HELD: 1. The Trial Court, in effect, found:
(i) It had been established beyond any iota of doubt that
the victim had sustained bullet injuries. It had also been proved
that the incident had taken place and in the manner alleged.
(ii) The contention of the defence that the injuries were
not so life threatening or grave or serious as to attract Section
307 of the Indian Penal code was not acceptable, considering the
testimony of three Medical experts who deposed with regard to
the gravity and seriousness of the injury.
(iii) The evidence of the FSL (Forensic Science Laboratory)
Expert, coupled with Exhibit 92 established that an offence
attracting the provisions of Section 307 of the Indian Penal Code
had taken place.
(iv) The recovery of the weapon in terms of Panchnama
(Exhibit 88) was proved beyond reasonable doubt.
(v) Minor irregularities on the part of the investigation and,
in particular, the casual manner in which the Investigating Officer
(PW-14) testified would not vitiate the case of the Prosecution.
(vi) The Appellant as also first accused were duly identified
both by the
complainant (PW-8) and the victim (PW-12) in course
of identification parade held on 1st and 3rd January 2003 and
they were also identified in Court. The mere fact that the
Identification Parades were held on different dates would not
render the identification unreliable.
(vii) Both the eye-witnesses had identified the Appellant
and the  first accused as being the persons who were on the
motorcycle. The motor cycle was driven by the Appellant and the
first accused was the pillion rider. Both the eye-witnesses had
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seen the pillion rider, that is, the first accused handling the weapon.
The victim clearly deposed that the first accused had fired at the
victim at point blank range. The said witnesses remained
unshaken despite extensive cross-examination.
(viii) The concerned Executive Magistrate who conducted
the identification parade (PW-11) corroborated the evidence of
PW-12 and PW-8 with regard to the identification and he also
could not be shaken despite extensive cross-examination.
(ix) The Panchnama being Exhibit-88 relating to recovery
of the weapon was duly proved by the oral testimony of Pancha
witness (PW-10) who had also identified the Appellant.
(x) The Prosecution had established from the ballistic report
being Exhibit-92, and the evidence of FSL experts that the bullet
that was extracted from the body of the victim, had been fired
from the weapon recovered on the confession of the Appellant.
[Para 56][380-F-H; 381-A-H]
2. The sessions Judge, correctly found that notwithstanding
minor discrepancies, the Prosecution had successfully established
the chain of events, linking the crime to inter alia the Appellant.
[Para 57][382-A]
3. In this appeal, this Court is not concerned with the
conviction of the first accused. The involvement of the Appellant
in the offences alleged has duly been established inter alia by the
injury of the victim; extraction of bullet from the body of the
victim; linking of the bullet to the
weapon recovered on the
confession of the Appellant upon Forensic examination; the
evidence of two eye-witnesses to the crime, namely the
complainant (PW-8)
and victim (PW-12); Identification by the
complainant and the victim of the Appellant in the Identification
Parades as also in Court; Identification by the Pancha witness
(PW-10) of the Appellant as the person at whose instance the
weapon of offence was recovered. [Para 58][382-B-C]
4. The finding of the Sessions Court that the Prosecution
had not been able to establish the involvement of the third
accused, or to establish that the Appellant and the first accused
were part of a conspiracy, which had targeted prominent leaders
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of the Hindu community did not warrant interference. The High
Court rightly dismissed the Criminal Appeal No.1145 of 2006,
and allowed Criminal Appeal No.567 of 2006 filed by the
Respondent State, only to the extent of enhancing the sentence
of imprisonment inter alia of the Appellant to 7 years under
Section 307 read with Section 114 of the Indian Penal Code,
considering the gravity and seriousness of the offence.
[Para 59][382-D-E]
Iqbal and Another v. State of Uttar Pradesh (2015) 6
SCC 623 : [2015] 6 SCR 239; Salim Akhtar @ Mota v.
State of U.P (2003) 5 SCC 499 : [2003] 3 SCR 470;
Bodhraj @ Bodha and Others v. State of Jammu &
Kashmir (2002) 8 SCC 45 : [2002] 2 Suppl. SCR 67 –
referred to.
Case Law Reference
[2015] 6 SCR 239
referred to
Para 41
[2003] 3 SCR 470
referred to
Para 49
[2002] 2 Suppl. SCR 67
referred to
Para 49
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 488-489 of 2017.
From the Judgment and Order dated 29.09.2015 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 1145 of 2006.
Ms. Meenakshi Arora, Sr.Adv., M.M. Saikh, Ms. Monisha Handa,
Mohit D. Ram, Ms. Jesal Wahi, Ms. Vishakha, Ms. Mamta Singh,
Ms. Hemantika Wahi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. This appeal is against a common judgment and order dated 29th
September 2015 passed by a Division Bench of the High Court of Gujarat
at Ahmedabad, dismissing Criminal Appeal No.1145 of 2006, filed by the
Appellant, partly allowing Criminal Appeal No.567 of 2006, filed by
Respondent State,  affirming the judgment and order of conviction dated
18th January 2006, passed by Additional City Sessions Judge (Court No.6)
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at Ahmedabad City in Sessions Case No.245 of 2004, but enhancing the
sentence of rigorous imprisonment from six to seven years, for offence
under Section 307 of the Indian Penal Code.
2. The learned Sessions Judge had, by his aforesaid judgment and
order convicted the Appellant and one Salim alias Salim Chaurala Yakubhai
Patel, hereinafter referred to as the first accused, of offence punishable
under Section 307 read with Section 114 of the Indian Penal Code and
Section 25(1)(B)(a) of the Arms Act read with Section 135 (1) of the
Bombay Police Act for targeting and attempting to murder one Dr.
Jaydeep Patel, hereinafter referred to as the victim, by aiding and abetting
each other. The third accused, Abhasbeg Habibbeg Mirza, was acquitted
of all the charges levelled against him.
3. The learned Sessions Judge sentenced the Appellant and the
first accused to undergo rigorous imprisonment for six years for offence
under Section 307 read with Section 114 of the Indian penal Code, rigorous
imprisonment for three years for offence under Section 25(1)(B)(a) of
the Arms Act and rigorous imprisonment of six months for violation of
Section 135(1) of the Bombay Police Act, to run concurrently. By the
judgment and order under appeal, the High Court has inter alia confirmed
the judgment and order of conviction of the appellant and the first accused,
passed by the Session Judge, but enhanced the sentence of imprisonment
for offence
under Sections 307/114 of the IPC to seven years instead of
six.
4. It is the case of the Prosecution that the victim, who was going
to his laboratory from his residence at around 4.45 p.m. on 3.12.2002, in
his Indica Car bearing the Registration No. GJI HE 1575, driven by his
driver Jignesh G. Vyas, being the complainant, was shot near the Galaxy
Cinema, from a pistol fired by the first accused, from a motorbike, driven
by the  Appellant, on which the first accused was the pillion rider.
5. When the car had to slow down to negotiate a speed breaker,
as it was approaching the Galaxy Cinema, the Appellant suddenly stopped
the motorbike beside the victim’s car, on the side the victim was sitting,
and the first accused took out a pistol and fired at the victim, after which
the Appellant and the first accused fled the scene of occurrence. The
bullet pierced the glass window and hit the victim on his face.
6. It appears that, after the victim was shot, he instructed the
complainant to take him to the Hospital of Dr. Pareshbhai, which was
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nearby. However as Dr. Pareshbhai was not available, the victim was
taken to Anand Surgical Hospital of one Dr. Narender Sanghvi, at Siazpur,
where the victim was given preliminary treatment.  On the advice of Dr.
Singhvi, that the victim should be taken to a better equipped hospital, the
victim was rushed to Sterling Hospital. In the meanwhile, the complainant
filed a complaint under Section 157 of the Criminal Procedure Code
with the police who had rushed to the Anand Surgical Hospital on getting
information of the incident. The complaint was forwarded to Naroda
Police Station and registered as ICR 530/02.
7. Thereafter, the police took up investigation, examined the
complainant, went to the place of occurrence, seized articles such as
pieces of broken glass etc. Later, the clothes worn by the victim when
he was shot, the mats of the car and a cover kept on the rear seat of the
car,described as carpet which contained human blood etc., and other
articles found inside the car were also seized. After the bullet was
operated and removed and the victim was in a position to be examined
the Investigating Officer recorded his statement. The first accused and
the Appellant  were arrested on 30.12.2002 and 31.12.2002 respectively.
Identification Parade of the first accused was held on 2.1.2003 and that
of the Appellant, arrayed the second accused on 4.1.2003. While the
accused were in custody, the weapon used for the offence was recovered
by the police on the
confession of the Appellant, from the place shown
by the Appellant.
8. Three weapons- a country made pistol, a pistol apparently made
in England and another pistol apparently made in China, were recovered
from underneath the earth in an open ground near the Shahalam Dargah,
described in the Panchnama under which they were seized. The weapons
were sent to the Forensic Science Laboratory for analysis and test as
also the bullet recovered from the body of the injured.
9. The prosecution has alleged that the victim was targeted as a
sequel to the communal riots in Ahmedabad after the Godhra incident,
which had taken place in February 2002. The accused had entered into
a conspiracy to target and finish off prominent members of the religious
community, to which the victim belonged. The accused persons
accordingly started monitoring the movements of the victim, a prominent
member of a religious organization and its Secretary at the time of the
riots, who ran a pathological laboratory.
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT
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10. After the investigation was completed, charges were framed
against the first accused, the appellant, arrayed as the second accused,
and one Abhasbeg Habibeg Mirza arrayed as the third accused and the
case was committed to the Sessions Court and registered as Sessions
Case No.245 of 2004.
11. To substantiate its case, the prosecution examined following
14 witness including the complainant and the victim, who were eye
witnesses:-
1. Haribhai Jethabhai
2. Jaimini P Patel
3. Mahesh Ravjibhai Patel
4. Punambhai Ranchodbhai Patel
5. Dr. Narendra P Sanghvi
6. Devang M Parikh
7. Pareshkumar P Jethwal
8. Jignesh G. Vyas
9. Dr. Anil Bansal
10. Pradip Mohanbhai Patel
11. Mohmedyunus A Mansuri
12. Dr. Jaydeep A Patel
13. Dr. Shreekant Prabhakar
14. Gagabhai L khunti
12. The Prosecution also relied upon the documentary evidence
such as, the complaint filed by the complainant, medical reports/
certificates of the victim, Panchnama prepared at the scene of
occurrence, Panchnamas relating to recovery of articles, clothing etc.
Panchnamas relating to identification of the first accused and the
Appellant (second accused), Panchnamas relating to recovery of
weapons on the basis of the statement of the  Appellant and the bullet
extracted from the body of the victim, Forensic Science Laboratory
Reports, the Lie Detection Analysis Report etc.
13. The victim who had himself deposed as the 12th Witness (PW-
12) said that the incident had
occurred around 4.45 p.m. on 3rd December
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2002, when the victim was on his way to his pathological laboratory
from his home, in his car being a Tata Indica car, with Registration Number
GJI HE 1575, which was being driven by the complainant being his
driver. The victim deposed that he was seated at the back, on the left
side of the car.  When the car was passing by the Galaxy Cinema, it
slowed down at a speed breaker.  As the car negotiated the speed breaker,
there was a noise from the left which the victim, later in cross
examination, explained as the sound of an approaching motorbike. On
hearing the noise, the victim turned in the direction of the motorbike,
which was by the side of the car, and saw that there were two persons
on the motor cycle. The pillion rider had a weapon, which looked like a
pistol, in his hand. The pillion rider opened fire. The victim was hit by the
bullet and he slumped to the right. He said he was taken to the hospital
of Dr. Pareshbhai which was near his laboratory but the Doctor was not
there. He then asked his driver to take him to Anand Surgical Hospital.
He was in severe pain. They reached Anand Surgical Hospital and
narrated the incident to Dr. Narender Sangvi. Dr. Sanghvi started
treatment, took an X-ray and gave primary treatment but recommended
that the victim should be taken to a bigger hospital. Thereafter, the victim
was shifted to Sterling Hospital. The victim further deposed that after
examining diagnostic reports, the doctors of Sterling Hospital
decided to
operate on the victim. The operation was performed on 4th December
2002 at the Sterling Hospital and the bullet was removed. The victim
remained admitted in Sterling Hospital for about 8 days as an indoor
patient, after which he was discharged on 11th December 2002. He said
that due to the injury, the bone below his left eye was broken for which
he had to undergo treatment for about six months after his discharge
from the hospital. He said that the vision of his left eye had deteriorated
because of the injury.
14. In course of his examination, the victim asserted that he had
seen and could recognize both the Motorcyclists - the driver and the
pillion rider, whom he had identified at the Test Identification parade,
and also in Court.
15. The complainant deposed as the eighth witness (PW-8). This
witness (PW-8) deposed that he had to slow down the car near Galaxy
Cinema as there was a speed breaker. At that time there was a bike
behind the car with two persons. The person in front had dark glasses
and a black cap. PW-3 said that just as he negotiated the speed breaker,
he heard the sound of firing and on turning to his left he found that the
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persons on the bike were driving away towards Chandresh Nagar
Society. The person sitting on the pillion had a weapon that looked like
pistol or a revolver, which he put into the pocket of his jacket. When
PW-8 looked behind he found that the left eye of the victim was bleeding.
16. This witness confirmed that he first took the victim to the
hospital of Dr. Pareshbhai but the Doctor was not there. The victim was
therefore taken to Anand Surgical Hospital of Dr. Narender Sanghvi,
where the victim was given primary treatment. While the treatment was
going on, the police arrived and took his complaint.  This witness identified
the complaint made by him and stated that the police officer had also
signed the complaint in his presence. He confirmed that the facts stated
in the complaint were true.
17. This witness also stated that in deference to the advice of Dr.
Narender Sanghvi that the victim should be taken to a better equipped
hospital, the victim was shifted to Sterling Hospital on the same day.
On the next day, the complainant showed the police the place of
occurrence. The police made investigations.
18. This witness (PW-8) stated that on 4th January 2003, the police
summoned him to Gheekanta Court. The Court peon made this witness
sit outside the Court for about 15 to 20 minutes after which he was
taken to the Court room before the Judge, and the Judge asked him to
identify the accused from out of six persons. This
witness identified the
person driving the motorcycle. The person identified by PW-3 stated
that his name was Mustak @ Kanio. After the identification, the Judge
asked the complainant to go out.
19. In Court this witness again identified the said person whom he
had earlier identified during the identification parade and who had stated
that his name was Mustak @ Kanio. This witness also identified the
person driving the motor cycle, being the first accused, in Court.
20. This witness said that on the left back door of the vehicle
there was a small glass with a steel strip fitted to it. The bullet came
from the said strip and the glass cracked. Pieces of glass fell on the
back seat. The board at the back where speakers had been kept, the
back seat belt as also the carpet on the seat were stained with blood.
This witness also identified the clothes worn by the victim at the time of
the incident.
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21. This witness was cross-examined at length. He, however,
remained unshaken in cross-examination. He confidently deposed that
the motorcycle was a Yamaha motor cycle. Though he did not know its
number. He confirmed that he had identified the second accused at the
identification parade and he had identified both the Appellant (second
accused) and first accused (Salim) in Court, as the Driver of the
motorcycle and the pillion rider, who had opened fire.
22. The recovery of the weapon with which the offence was
committed, on the confession of the appellant, from underneath the ground
from the place shown by the Appellant has been proved by the oral
evidence of the Pancha Witness, Pradip Mohanbhai Patel who deposed
as the tenth witness (PW-10). This witness also identified the Appellant
in Court, as the person at whose instance three weapons were recovered
by the police, in his presence.
23. The Judicial Magistrate who conducted the Test Identification
Parade namely Mohmedyunus A. Mansuri, deposed as the eleventh
witness (PW-11). He corroborated identification of the Appellant by the
complainant and the victim at the Test Identification Parades conducted
by him.
24. Three doctors have deposed in this case. Dr. Narendra P.
Sanghvi who deposed as PW-5 stated that he gave primary treatment to
the victim, conducted tests and recommended that the victim be taken to
a bigger, better equipped hospital, considering the gravity of his injury.
9th Prosecution Witness
(PW-9), Dr. Anil Bansal , Chief Medical Officer,
Sterling Hospital deposed that the victim had been brought to Sterling
Hospital at around 6:30 p.m. on 3rd December, 2002. He appeared to
have been injured by a bullet. This witness along with other Doctors had
physically examined the victim. It appeared that he had a wound of one
centimeter below the left eye but he was fully conscious and his pulse,
blood pressure etc. were normal. This witness deposed that the victim
was immediately shifted to the operation theatre where he was operated
upon and the bullet was taken out. The victim was discharged from the
hospital on 11th December 2002.
25. This witness also identified the certificate issued by the hospital
to the victim regarding his injuries and treatment. He said that the
certificate was issued in printed form but he identified his hand writing
and signature on the  certificate. This witness observed that the injuries
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[INDIRA BANERJEE, J.]
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sustained to the patient could be said to be serious because bullet had
entered the neck of the patient from lower part of left eye.
26. The 13th Prosecution Witness (PW-13), Dr. Srikant, a Surgeon
said that on 4th December 2002 he along with his team of Doctors had
performed surgery of the victim who had a bullet injury. The bullet was
lodged on the left side of the neck. This Doctor described how the bullet
had been taken out. This Doctor also opined that the bullet was lodged in
a vital part of the body.
27. From the depositions of the witnesses named above and the
documents relied upon, there can be no iota of doubt that the victim was
shot on 3rd December 2002 at around 4:45 p.m. near the Galaxy Cinema
while he was on his way from his home to his pathological laboratory in
his Indica Car driven by his driver, the complainant.  Both the complainant
(PW-8) and the victim (PW-12) have deposed that while the said car
slowed down near Galaxy Cinema to negotiate speed breaker a motor
cycle which was following the car pulled up to the left, the pillion rider
pulled out pistol and fired at the victim (PW-12) at point blank range and
fled away. Both the complainant and the victim have as eye witnesses,
identified the Appellant.
28. The Appellant did not examine any witness. After the 14
prosecution witnesses named above were examined the Appellant was
examined under Section 313 of the Criminal Procedure Code. His defence
was of total denial.
29. Ms. Meenakshi Arora, learned senior counsel appearing on
behalf of the Appellant submitted that the Test Identification Parade of
the Appellant had been conducted contrary to the rules of evidence and
failed to establish the identity of the Appellant. She argued that as per
the case of the Prosecution, the only two eye witnesses were the
complainant (PW-8) and the victim (PW-12). However, the Appellant
who had been arrayed as the second accused had only been identified
by PW-8.
30. From the judgment and order of the Sessions Court, duly
affirmed by the High Court, it appears that the Appellant has been
identified by both the victim (PW-12) and the complainant (PW-8) apart
from the Pancha witness (PW-10)  Be that as it may, the testimony of
an injured victim is sufficient for conviction.
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31. To impress upon this Court that the complainant being the
driver of the car could not have recognized the Appellant, Ms. Arora
pointed out that the complainant had, in his complaint stated “I saw then
two persons were on the back behind my car, out of them the person
plying had put on black goggles and black cap”. In his testimony in Court
he said:-
“…….I saw back side from centre mirror. At that time two
persons were coming on bike after me, wherein the person in
front had put on black glasses and back cap” (examination in
chief)
…...Thereafter on 4/1/2003 the police summoned me at
Gheekanta Court. I reached over there between 3.45 to 4.00
O’ clock evening. The peon made me seated outside of court
at the sitting place and I was again called after about fifteen
to twenty minutes. I was taken in the Court room before the
Judge and the Judge over there asked me my name, address
etc. Thereafter asked me to identify the person I could identify
from six persons. That I had identified a person standing third
and fourth in the middle and caught and dragged his hand.
The Judge asked name to this person and the person stated
his name to be Mustak alias Kanio. On completion of the
procedure the (Judge) asked me to go. (examination in chief)
“….. It is true that, I have never seen any of the person seated
on the motor cycle prior the incident. It is true that I saw only
back of person seated in back of the motor cycle. Said motor
cycle went away from the place
of incident at a speed of about
forty to fifty kilometer. It is true that, after the incident the
motor cycle went away on rough road turning by left back
side door of our car. Said motor cycle did not go from front
of our car but turned on left side back door of our car and
went away” (Cross-examination)
It is true that I saw the motor cyclist, heard the blast, and the
motor cyclists were turned towards Chandresh Nagar, all this
was happened just within blink of eye ….
It is true that at the very same time I saw the motor cyclists
turning towards Chandreshnagar. It is true that the road on
which our vehicle was, is very busy road. It is not true that it
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT
[INDIRA BANERJEE, J.]
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was not the Yamaha Motor cycle but was the motor cycle like
Yamaha. The witness empathetically states that, it was the
Yamaha motor cycle only. It is true that, on occurrence of
incident I did not come out from the car. For the first time I
came out form the car after reaching to hospital of Dr. Paresh
Shah, at that time Jaydipbhai was also taken out of car….
It is true that especially about physical description of the
persons ride on motor cycle I only knew that they could be
twenty to twenty five years of age.
It is true that, none of the person in identification parade
were wore gape or glasses. It is true that, none of the person
from identification parade had subtle eye.
(cross-examination)
32. Referring to the evidence of the complainant, as extracted
above, as also the part of the complaint extracted above, Ms. Arora
emphatically argued that the complainant could not possibly have identified
the Appellant with certainty as the Appellant had been wearing dark
glasses and a cap, the motor cycle was behind and not in front of the car,
the complainant had seen the Appellant from the rear mirror when the
motor cycle was at a speed of 40-50 kilometers per hour and the motor
cycle had turned away within the blink of an eye, after the complainant
turned around on hearing the pistol shot.
33. With the greatest of respect, the evidence of the witnesses
have to be read as a whole. Words and sentences cannot be truncated
and read in isolation. The witness has categorically stated that he would
be able to identify and actually identified the driver of the motor cycle as
the Appellant. The PW-11 being the Judicial Magistrate has corroborated
identification of the Appellant by the complainant in the Test Identification
Parade.
34. Ms. Arora thereafter referred to Testimony of PW-11,
Mohmedyunus A Mansuri, the Judicial Magistrate who conducted the
Test Identification Parade and in particular the following portions:-
“The accused of this case was brought before me in the court
room at 16.30 hours on 2/1/2003, the name, address was asked
to the accused and same was verified, they were made to sit
in the court…..
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…...Thereafter, called five dummy persons from outside
through my peon.  In the meantime the witnesses of the case
had not come and my another peon had informed about they
came at 16.35 o’clock.(examination in chief)
….. It is true that the accused was not produced covered in
the veil…..
…...It is true that, physical description of none of the dummy
are given in the panchnama. It is true that, in the yadi exhibit-
64 it has been mentioned that the accused is aged about twenty
to twenty five years. It is true that none among the dummy is
aged 27 years…..
…..I did not ask the witness as to have you seen the accused
before the identification parade or not.
It is true that it was appeared from the yadi that two persons
were the motor cyclist and had put on black goggles and black
cap and were aged about twenty to twenty five years of age.
It was also appeared from the yadi that the pillion rider had
put on black jacket and black jeans. It is true that it was also
mentioned in the yadi that the complainant can identify the
motorcyclists and the witness can identify the person who
executed fire. From yadi exhibit-64 I did not feel that the
accused Salim was the driver of the motorcycle……
It is true that, in spite of my instructions both the accused
were not brought to me covered under veil at the time of
identification parade. I have not done any proceedings for
the police did not follow such clear instruction from me. It is
true that from both the yadis I had
realized that which witness
could identify to which accused.
It is true that, there is a corridor outside of my court room
and thereafter the compound wall is situated. It is true that,
too many members of the police and public are in both places
the corridor as well as compound. It is true that, I cannot say
anything that if the witness and accused were introduced to
me when the witness and the accused were brought to me…..
….At both times I did not feel that none of the dummy is fit
and he should be sent back. I did not take into consideration
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the age, height, look and cloths of dummy. It is true that now
even I am unable to give description of one dummy even…..
…...It is true that, after arranging the accused with the dummy
in line, my peon had gone to call the witness, this was
happened at both the times. It is true that, I cannot say that
during both this time if any conversation could have taken
between my peon and the witness…..
…..It is true that, during both the panchnama I did not enquire
to accused. It is true that, after completion of the panchnama,
none of the witness from both did not inform that for which
reason he has identified the accused….”
35. From the evidence of the PW-11, being the Judicial Magistrate,
it appears that the Appellant as well as the dummies were brought before
the Judicial Magistrate before the witnesses arrived. It is clear that the
Appellant was duly identified by the eye-witnesses. The defence has
not been able to show any such infirmity in the Identification Parade of
the Appellant which vitiates the Identification.
36. The suggestion of there being many police men in the corridor
as also members of the public insinuates that the witnesses may have
been been tipped off by the police. Apart from the fact that there is
absolutely no evidence of any interaction between the witnesses and the
policemen, the Judicial Magistrate has deposed that the Appellant was
brought in before him, before the witnesses arrived. From the
tenor of
the oral evidence of the Judicial Magistrate, it is patently clear that he
deposed truthfully and did not try to cover up any loopholes or lacunae.
37. Ms. Arora’s submission that the Sessions Court accepted that
the identity of the Appellant had not been established, but at the same
time convicted the Appellant on the basis of the testimony of the same
witnesses, is difficult to accept. The portion of the judgment of the Trial
Court relied upon by Ms. Arora is extracted hereinbelow:-
30. It has been vehemently argued and, in my opinion, I may even
venture to say that, the arguments are not entirely devoid of merit,
that there are some doubts with regard to the identity of accused
No.1 & 2 as being the perpetrators of the offence herein. There
is some merit in the submission made on behalf of the defence
that, though the accused Nos.1 & 2 were already in the custody
of the Naroda police on accused of their being arrested in
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connection with some other offence, there is no worthwhile reason
as to why their arrest was affected in the present offence nearly
a week thereafter. There is further merit as to why since both the
accused were already in police custody i.e. to say custody of the
Naroda Police on the relevant dates, the identification parades
were separately held on 01.01.2003 and 03.01.2003 respectively.
It is also necessary to note that, no satisfactory explanation has
been forthcoming from the Investigating Officer PW-14, who has
in my opinion, has testified in a rather casual manner and not too
serious fashion…..”
38. The judgment of the Sessions Court has to be read in entirety.
Even though the Trial Court made certain observations with regard to
the casual manner in which the Investigating Officer had testified, the
Trial Court found that the first accused and second accused had positively
been identified by both the concerned eye witnesses i.e., PW-12 and
PW-8.
39. The relevant part of the judgment is extracted hereinbelow :-
“31. It is required to be noted that, both the accused nos. I &
2 have been positively identified in the course of valid
identification parades by both the concerned eye witnesses
i.e. to say PW-12 & PW-8 respectively as being the persons,
who has come on the motor cycle driven by accused no.2 of
which, the accused no.1 was a pillion rider and what further
emerges is the undisputed and uncontroverted fact of the
accused no.1 pulling out a
pistol like weapon and firing it at
Dr. Jaydeep Patel at a point blank range. The identification
parades exhs. 65 and 67 respectively are corroborated by
PW-11 being the executive magistrate and Mohmedyunus A.
Mansuri and are further corroborated and supported by the
testimonies of PW-12 & PW-8 respectively and despite
extensive cross-examination by the Learned Advocate for the
defence, the testimony of all the three witnesses has withstood
the test of cross examination and the cumulative effect of such
testimonies make me unhesitatingly come to a conclusion that,
both the accused Nos. 1 & 2 were positively identified in the
course of the identification parades by PW-12 & PW-8
respectively……”
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40. We are unable to accept Ms. Arora’s submission that the
High Court erred in dismissing the appeal and upholding the conviction,
with the observation that the witnesses had extensively been cross-
examined by the defence, but nothing incriminating had emerged in the
cross-examination to disbelieve there evidence. It is a matter of record
that both the witnesses had in the course of separate Test Identification
Parades, positively identified the first accused as well as the Appellant
herein.
41. Ms. Arora’s submision that the Courts below had erred in
holding that the Appellant had positively been identified by Prosecution
Witnesses is also not sustainable. The identity of the Appellant has been
proved beyond reasonable doubt, by the eye-witnesses to the crime as
well as the Pancha witness. It may be true that conviction based on
erroneous identification and a faulty Test Identification Parade cannot
be sustained. The proposition of law in Iqbal and Another  vs. State of
Uttar Pradesh1 cited by Ms. Arora is unexceptionable. However, in this
case, the Appellant had actually been identified by both the victim and
the complainant and also in Court by the Pancha witness (PW-10), as
observed above. The identification cannot be said to be erroneous. Nor
did the Test Identification Parade suffer from such infirmity as to vitiate
the identification itself.
42. Ms. Arora next submitted that the prosecution has not been
able
to establish the chain of custody of the bullet which was removed
by Dr. Shrikant (PW-13) from the body of the victim. She referred to
Dr. Shrikant’s deposition that:-
“ After the surgery we gave the bullet to sister we took out from
body of the patient, Sister means Standing Nurse, I do not have
person knowledge that she gave it to whom, we gave her loose
bullet. It is true that in medico-legal case when any bullet is taken
out from body of anyone, then the care should be taken that no
scratches whatsoever appeared on such bullet or it does not get
damaged in other way. I do not know anything as to such bullet
should be kept in free box and to be sent to the F.S.L. It is true
that nowhere I have mentioned any description of said bullet.”
(Cross-examination @ Pg. 118-119)”
43. Ms. Arora further pointed out that the Investigating Officer
being  the 14th Prosecution Witness (PW-14) had in his evidence stated
1 (2015) 6 SCC 623
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“ ….Today I did not recall that whether the bullet which was produced
before me by Sterling Hospital was in sealed condition or not…...”
(Cross examination).
44. Ms. Arora argued that when conviction is based on firing of a
bullet, the Prosecution has to establish that the same bullet has been sent
for forensic examination. The Prosecution failed to do so. Ms. Arora
questioned the correctness of the following findings of the Trial Court:-
“The panchnama Exh.82 again finds corroboration and therefore,
though much has been made out with regard to the mode of handing
over the bullet to the Investigating Officer not being in accordance
with the provisions of law, I am of the opinion that, even if some
irregularities are found to have taken place, the same cannot
undermine and negate the prosecution version to the extent of
giving a clean chit or thereby resulting in the acquittal of the
accused Nos. 1 & 2 as sought for by the defence”
45. We do not find any such error in the findings of the Session
Court to warrant interference. When there is a time gap between an
occurrence and the trial it is impossible for police/Investigating Officer
to recall minute details. Nor is it possible for a surgeon performing an
operation to remove a bullet from the body of a patient to throw light on
the chain of custody of the bullet, after it was made over to the attending
Nurse. There was sufficient incriminating evidence for conviction of the
Appellant.
46. Ms. Arora also
argued that conviction of the Appellant placing
reliance on alleged recovery of a weapon from an open ground cannot
be sustained. In support of her submission she referred to the testimony
of the Investigating Officer (PW-14) extracted hereinbelow:-
“…..On 5/1/2003 the accused Mustak Ahmedbhai Shaikh
expressed his willingness to show the weapon used in this offence
as well as two other weapons which were hide buried in the ground
opposite of Shahalam……
we came to Shahalam Darwaja, where the accused told that the
Jeep would no go further, therefore we get down, the accused
walked ahead and from shahalam Dargah came into an open
ground from a street on opposite side and he removed the sand
from the ground and took out and showed a weapon in a cloth bag
which were two Pistols and Tamanca for which a detailed
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panchnama was drawn and seized and packed all the three
separately and sealed them, a chit duly signed by the panchas
was placed in it and were sealed.”
47. Ms. Arora argued that the Prosecution could not have relied
on recovery of a weapon from an open field after one month from the
date of the alleged incident. PW-14, Investigating Officer, could not stand
the test of cross-examination with regard the description of the place of
alleged recovery and the direction thereto. To buttress her arguments,
Ms. Arora referred to the cross-examination of the PW-14 where he
stated:-
“it is not true that the place from where the accused found the
weapon is situated too far and deep from the main road. I do not
recall now that after getting down from the Jeep and to reach to
the place, it comes after three curves, or not, I do not recall now.
It is true that too many residential houses comes on the way, I
cannot say that what is situated in front of row of those residential
houses. It is true that the place from where the weapon was
found out was open space, there was no traffic. I have not recorded
statement of anyone form the residential houses situated nearby
the said place.”
48. In my considered opinion, minor discrepancies in evidence
and inability to recall details of the description of houses, roads and streets
after several years, do not vitiate the evidence of recovery itself. The
Appellant showed the police the spot
where the weapons had been hidden
under the sand. The Trial Court upon appreciation of evidence on record
very rightly held:-
“Again providing positive corroboration to the entire version is the
fact of the discovery of the muddamal weapon in terms of the
panchnama exh.88 at the behest of accused no.2 which
panchnama, positively establishes the recovery of the muddamal.
The said panchnama derives independent corroboration and support
in the testimony of PW-10 Pradeep Mohanbhai Patel, who has
not only positively identified accused No.2 but has also given a
complete corroboration to the process reflected in the panchnama
exh.88. The Panch witness has also, in my opinion, clearly
withstood the test of extensive cross-examination and in my opinion,
there is no reason to discard or disbelieve such witness.
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……… The prosecution in my opinion, has successfully established
the chain of events linking the tanking place of the incident,
establishing the positive identity of accused Nos.1 & 2, recovery
of the muddamal weapon at the behest of accused No.2.
49. In support of her submission that recovery from an open place
accessible to all was vitiated and could not have been relied upon for
conviction of the Appellant, Ms. Arora cited the following judgments:-
1. Salim Akhtar @ Mota v. State of U.P2
2. Bodhraj @ Bodha and Others v. State of Jammu & kashmir3
50. From the evidence and materials on record it cannot be said
that recovery of the weapon of offence was from an open place
accessible to all. The weapons were dug out from underneath the sand
in an open ground behind the Shah Alam Dargah.
51. Ms. Arora finally argued that the Prosecution had failed to
prove motive and conspiracy which was essential to convict the
Appellant. However, where the firing had taken place and there were
eye witnesses to the firing, it was not necessary to establish a motive.
At the cost of repetition it is reiterated that both the Appellant and the
first accused were identified by the eye witnesses to the firing, being the
complainant (PW-8) and the Appellant.
52. The prosecution may not have been able to prove the greater
conspiracy of targeting the prominent leaders of the Hindu community.
The inability of the Prosecution to establish greater conspiracy led to the
acquittal of the
third accused. It is well settled the minor discrepancies
in the evidence does not vitiate a conviction. The discrepancy if any in
the timing is insignificant. PW-8 in his cross-examination stated that the
incident took place between 4.45 to 5.00. p.m. on 3.12.2002. The victim
has said the incident occurred at around 4.45. p.m. They both stated that
the incident took place near Galaxy Cinema.
53. In course of the trial, the Trial Court has considered the
evidence on record at length. It is reiterated that the eye witnesses to
the crime being the victim and the driver of his car, the complainant
confidently identified the Appellant and first accused and they could not
be shaken in cross-examination. PW-10 testified to the recovery of
2 (2003) 5 SCC 499  Para 9-12
3 (2002) 8 SCC 45  para 18
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offence in his presence, at the instance of the Appellant and also identified
the Appellant in Court. Considering the gravity of offence and the
seriousness of the injury and the manner in which the victim was shot,
there can hardly be any doubt that the attempt was to murder the victim.
The High Court confirmed the judgment and order of conviction but
enhanced sentence under Section 307 read with 114 of the Indian Penal
Code to seven years instead of six.
54. The Trial Court after considering the evidence on record and
after hearing the Prosecution, the Appellant and the other accused found
that the third accused was not present at the place of occurrence and
there was no evidence to establish that he was part of any conspiracy.
The third accused was accordingly acquitted. The Sessions Court,
however, found the Appellant and first accused guilty and convicted
them of offences punishable under Section 307 read with Section 114 of
the Indian Penal Code read with Section 25(1)(B)(a) of the Arms Act
read with Section 135(1) of the Bombay Police Act for having committed
the offence of aiding and abetting each other in targeting and attempting
to murder the victim.
55. The Sessions Court sentenced the Appellant to undergo
rigorous imprisonment for 6 years for offence under Section 307 read
with Section 114 of the Indian Penal Code, rigorous imprisonment for 3
years for offence punishable under Section 25(1)(B)(a) of the
Arms Act
and rigorous imprisonment for 6 months for violation of Section 135(1)
of the Bombay Police Act. The sentences were to run concurrently and
the time spent by the Appellant in judicial custody was ordered to be set
aside while computing the total period of sentence.
56. The Trial Court, in effect, found:
(i)
It had been established beyond any iota of doubt that the
victim had sustained bullet injuries. It had also been proved
that the incident had taken place and in the manner alleged.
(ii)
The contention of the defence that the injuries were not so
life threatening or grave or serious as to attract Section 307
of the Indian Penal code was not acceptable, considering
the testimony of three Medical experts who deposed with
regard to the gravity and seriousness of the injury.
(iii)
The evidence of the FSL (Forensic Science Laboratory)
Expert, Mukesh N. Joshi coupled with Exhibit 92 established
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that an offence attracting the provisions of Section 307 of
the Indian Penal Code had taken place.
(iv)
The recovery of the weapon in terms of Panchnama (Exhibit
88) was proved beyond reasonable doubt.
(v)
Minor irregularities on the part of the investigation and, in
particular, the casual manner in which the Investigating
Officer (PW-14) testified would not vitiate the case of the
Prosecution.
(vi)
The Appellant as also first accused were duly identified
both by the complainant (PW-8) and the victim (PW-12) in
course of identification parade held on 1st and 3rd January
2003 and they were also identified in Court. The mere fact
that the Identification Parades were held on different dates
would not render the identification unreliable.
(vii)
Both the eye-witnesses had identified the Appellant and
the  first accused as being the persons who were on the
motorcycle. The motor cycle was driven by the Appellant
and the first accused was the pillion rider.  Both the eye-
witnesses had seen the pillion rider, that is, the first accused
handling the weapon. The victim clearly deposed that the
first accused had fired at the victim at point blank range.
The said witnesses remained unshaken despite extensive
cross-examination.
(viii)
The concerned Executive Magistrate who conducted the
identification parade (PW-11) corroborated the evidence
of PW-12 and  PW-8 with regard to the identification and
he also could not be shaken despite extensive cross-
examination.
(ix)
The Panchnama being Exhibit-88 relating to recovery of
the weapon was duly proved by the oral testimony of
Pradeep Mohanbhai Patel (PW-10) who had also identified
the Appellant.
(x)
The Prosecution had established from the ballistic report
being Exhibit-92, and the evidence of FSL experts that the
bullet that was extracted from the body of the victim, had
been fired from the weapon recovered on the confession
of the Appellant.
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57. The sessions Judge, in our considered opinion, correctly found
that notwithstanding minor discrepancies, the Prosecution had
successfully established the chain of events, linking the crime to inter
alia the Appellant.
58. In this appeal, we are not concerned with the conviction of
the first accused. The involvement of the Appellant in the offences alleged
has, in our opinion, duly been established inter alia by the injury of the
victim; extraction of bullet from the body of the victim; linking of the
bullet to the weapon recovered on the confession of the Appellant upon
Forensic examination; the evidence of two eye-witnesses to the crime,
namely the complainant (PW-8) and victim (PW-12); Identification by
the complainant and the victim of the Appellant in the Identification
Parades as also in Court; Identification by the Pancha witness (PW-10)
of the Appellant as the person at whose instance the weapon of offence
was recovered.
59. The finding of the Sessions Court that the Prosecution had not
been able to establish the involvement of the third accused, or to establish
that the Appellant and the first accused were part of a conspiracy, which
had targeted prominent leaders of the Hindu community did not, in our
view, warrant interference. In our view, the High Court rightly dismissed
the Criminal Appeal No.1145 of 2006, and allowed Criminal Appeal
No.567 of 2006 filed by the Respondent State, only to the extent of
enhancing the sentence of imprisonment inter alia of the Appellant  to 7
years under Section 307 read with Section 114 of the Indian Penal Code,
considering the gravity and seriousness of the offence.
60. For the reasons discussed above, we dismiss this Appeal and
affirm the conviction of the Appellant and the sentence imposed upon
the Appellant as enhanced by the High Court.
Ankit Gyan
Appeals dismissed.