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2015 DIGILAW 1298 (GUJ)

Mohmad Saiyed Valibhai Dalal v. State of Gujarat

2015-12-17

K.S.JHAVERI, R.P.DHOLARIA

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Present appeals, are directed against the judgment and order dated dated 14/12/2004 passed by the learned Sessions Judge, Dahod in Sessions Case No. 294 of 2004, whereby the accused have been convicted for the offence punishable under Section 302 and 114 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Section 135 of the Bombay Police Act. For the offence punishable under Section 302 of the IPC, the original accused No. 1 was sentenced to undergo rigorous imprisonment for life and a fine of Rs. 5,000/- and in default of payment of fine, to undergo, further simple imprisonment for six months and for the offence punishable under Section 135(1) of the Bombay Police Act, he was sentenced to undergo imprisonment for three months and a fine of Rs. 100/- and in default of payment of fine, to undergo, further simple imprisonment for one week, whereas, for the offence punishable under section 302 r/w. 114 of the IPC, the accused No. 2 was sentenced to undergo rigorous imprisonment for life and a fine of Rs. 5,000/- and in default of payment of fine, to undergo, further simple imprisonment for six months. 2. Brief facts of the prosecution case are that on 14/10/2003 at about 15:30 hours at village: Punsari, the accused, in the aid and abetment of each other, under some excuse, took deceased - Vahid Mohammad, with them on Hero Honda motorcycle No. GJ-20-D-3933, as the deceased was coming in their way of ill-intention of keeping relation with the complainant, and assaulted the deceased with Rampuri knife and thereby, caused severe injuries to him to which, the deceased succumbed. Thus, the accused committed the offence alleged against them for which, a complaint came to be lodged against the accused for the offence punishable under Sections 302 r/w. Section 114 of the IPC and Section 135(1)of the Bombay Police Act. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Dahod. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Dahod. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/n. Name of Witness Exh. 1 PW-1 Decided On :. Rajendrakumar Kishoral Shrivastava, MO 7 2 PW-2 Anishabibi Vahidbhai Adval, complainat 10 3 PW-3 Kantibhai Badiyabhai Katara 14 4 PW-4 Kalida Somaji Marvadi 15 5 PW-5 Aslam Rasul Kaiya 16 6 PW-6 Sattar Ismail Patuk 21 7 PW-7 Akhtar Husein Abdulrahim Saji 22 8 PW-8 Harun Mahmad SafiBajariya 29 9 PW-9 Sohil Vahid Adval 31 10 PW-10 Salim Safi Adval 32 11 PW-11 Iftekhar Sabbirbhai Selar 33 12 PW-12 Rajendrakumar Ramnivas Sharma, IO 37 DOCUMENTARY EVIDENCE S/n. Document Exh. 1 Complaint 11 2 Inquest Panchnama 23 3 Panchnama of scene of incident 30 4 Panchanama of recovery of the clothes from the dead body of the deceased Vahidbhai Adval 24 5 Panchanama of the accused persons 34 6 Discovery of the Muddanal Knife and accused persons clothes at the instance of the accused persons 17 7 Police Yadi for autopsy 9 10 Police Yadi to MO for the treatment of the accused No. 1 who had sustained injuries in the incident 39 11 Muddamalo forwarding notes 40 12 Certificate of the superior office regarding forwarding notes 41 13 A receipt from FSL, regarding muddamal received by FSL 42 14 FSL Report 43 15 Serological Report 44 16 A report of the officer from FSL who had visited the place of incident 45 17 Copy of Public Notification u/s. 37(1) of the Bombay Police Act by the Addl. District Magistrate 46 18 Panchnama slips in number – 9 18, 19, 20, 25 to 28, 35, 36 2.4 At the end of the trial and after recording the Further Statements of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused, as aforesaid by the impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - original accused have preferred the present appeals. 3. We have heard Mr. Y.M. Thakkar, learned advocate for the appellant - original accused No. 1 in Criminal Appeal No. 240 of 2005 and Mr. M.M. Tirmizi, learned advocate for the appellant - original accused No. 2 in Criminal Appeal No. 182 of 2005 and Mr. L.R. Pujari, learned Additional Public Prosecutor for the State. 3.1 The learned advocates for the appellants - original accused have submitted that the trial Court has committed an error in convicting the accused. It was contended that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the offence against the present appellants. They took us through the oral as well as the entire documentary evidence, more particularly, the evidence of complainant - Anishabibi Vahidbhai Adval, exh. 10, panch witnesses, exhs. 16, 21 and 22 respectively, PM Note, exh. 8 and other documentary evidence and contended that there are serious discrepancies in the evidence and there are serious omissions and lapses in the prosecution case. They submitted that as per the complainant, the police had informed about the incident, whereas, as per the police witness, the complainant had informed about the incident. Moreover, there is discrepancy as to the timings in the PM Report, which shows time of 1:30 p.m. and the panchnama of clothes of the deceased, which shows the time of 13:00 to 13:45 hours. It is submitted that the inquest panchnama has been done even prior to the lodging of the complainant i.e. prepared on 15/10/2003 between 00:45 to 01:15 hours, which is surprising. The learned advocates for the accused further contended that the case is based on the circumstantial evidence and merely, on the theory of the accused and the deceased lastly seen together, they cannot be linked and roped into the crime. They also raised the contention that joint recovery at the instance of both the accused, is not, per se, admissible in the evidence and such joint statement cannot be used against the accused persons to connect them with the crime in question. They also raised the contention that joint recovery at the instance of both the accused, is not, per se, admissible in the evidence and such joint statement cannot be used against the accused persons to connect them with the crime in question. In support of this submission, they relied upon two decision rendered by this Court i.e. i) in the case of Hemat Ramji v. State of Gujarat, reported in 1975 (0) GLHEL-HC 2048-49 and ii) State of Gujarat v. Mamubha Premsangji Jadeja, reported in 1998 (0) GLHEL-HC 2121-76. They further contended that the accused are wrongly roped into the offence without any basis. They contended that the accused are presently at large on bail after undergoing imprisonment of about more than five years. It is also contended that the dead-body of the deceased was found by the police at Punsari, however, as per the complainant, it was at the hospital and thereby, even discrepancy about the place of dead-body was there. On the aspect of the weapon used in the crime also, there were serious discrepancies. 3.2 The learned advocates for the accused also contended that the injuries which were found, are not possible by the weapon used since, one side of the weapon was clean, whereas, the other side was with teeth. It is submitted that the evidence of the brother of the deceased is not believable and it is not examined as to whether he was the truck driver or not. Therefore, they contended that the benefit of doubt may be given to the accused. They also requested that in view of the FSL Report, the injury which was caused to the deceased was only one and therefore, offence punishable under Section 302 may be converted into either under Section 304(I) or 304(II) of the IPC and period, the accused have already undergone, may be treated as sentence and they may not be directed to surrender to custody. As a last resort, they also, by inviting attention of the Court to the decision of the Hon'ble Apex Court in the case of Ankush Shivaji Gaikwad v. State of Maharashtra, reported in 2013(6) Scale 778, contended that, without prejudice to the rights and contentions of the accused, if the Court is not inclined to interfere in the appeals, while confirming the conviction and sentence, the accused may be directed pay a suitable compensation which may be paid to the widow of the deceased and convert the sentence into compensation as, otherwise the families of the accused may also ruin. Making above submissions, they requested to allow the present appeals. 4. On the other hand, Mr. Pujari, the learned Additional Public Prosecutor for the State supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt. He also took us to the evidence of PW-2 - Anishabibi Vahidbhai Adval, exh. 10, PW-9 - Sohil Vahid Adval, exh. 31 and PW-10 - Salim Safi Adval, exh. 32 and the evidence of different panch-witnesses and also the PM Note and other evidence and contended that all the three witnesses have clearly stated that the deceased and the accused were last seen together. The brother of the deceased has specifically stated the deceased had claimed Rs. 500/- from him and accordingly, he gave Rs. 500/- to the deceased however, on the accused asking the deceased to return the same, the deceased returned Rs. 500/- to him, at that time, as per the deposition of this witness, Vahid, the deceased was threatening. It was also contended that the accused No. 1 was injured and the doctor has noted his injuries. He also contended that the knife was sharp and therefore, the injuries are possible. The learned Additional Public Prosecutor further contended that looking to the several injuries, which were about eight in number, which were in terms, very serious, the case certainly falls under the offence punishable under Section 302 of the IPC and may not be converted into Section 304(I) or 304(II) of the IPC. The learned Additional Public Prosecutor further contended that looking to the several injuries, which were about eight in number, which were in terms, very serious, the case certainly falls under the offence punishable under Section 302 of the IPC and may not be converted into Section 304(I) or 304(II) of the IPC. He further contended that looking to the heinous crime, the decision of the Hon'ble Apex Court in the case of Ankush Shivaji Gaikwad (supra) may not be attracted in the case on hand. Eventually, he requested to dismiss the present appeals. 5. We have heard the learned advocates for the respective parties and examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. On going through the evidence on record, the evidence of PW-9 - Sohil Vahid Adval, exh. 31 and and PW-10 - Salim Safi Adval, exh. 32, appears to be the clinching one. Even two hostile witnesses viz. PW-3 - Kantibhai Badiyabhai Katara, exh. 14 and PW-4 - Kalidas Somaji Marvadi, exh. 15 have clearly stated that both the accused were last seen together with the deceased on the day of the incident on the motorbike. Moreover, the accused No. 1 was also found injured and there was joint recovery at the behest of the accused. Thus, in our opinion, the prosecution has successfully proved the case against the present accused beyond reasonable doubt. Though, the PW-3 - Kantibhai Badiyabhai Katara, exh. 14 and PW-4 - Kalidas Somaji Marvadi, exh. 15 have turned hostile, however, in the cross-examination, they have clearly admitted that the accused and the deceased were lastly seen together. Further, the learned advocates for the appellants - original accused are not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. We are, therefore, of the considered opinion that the findings recorded by the trial Court in convicting the accused of the charge levelled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. Moreover, looking to the PM Note and the injuries sustained by the deceased, it is not possible to convert the offence under Section 304(I)or 304(II) of the IPC, as is requested by the learned advocates for the accused. Further, nothing is produced so as to show that the parties have arrived at a settlement and therefore, the request of the learned advocates for the accused to convert the sentence into compensation cannot be accepted. No interference is warranted with the judgment and order of the trial Court. 6. At this juncture, we deem it proper to observe that, in a recent decision of the Hon'ble Apex Court in the case of Bhaikon @ Bakul Borah v. State of Assam, reported in JT 2013 (10) SC 373 it has been held as under: "15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen v. B.K. Srivastava & Ors. (2013) 3 SCC 425 , Mohinder Singh v. State of Punjab, (2013) 3 SCC 294 , Sangeet and Anr. v. State of Haryana, (2013) 2 SCC 452 , Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 , Chhote Lal v. State of Madhya Pradesh, (2011) 8 SCR 239, Mulla and Another v. State of Uttar Pradesh, (2010) 3 SCC 508, Maru Ram v. Union of India & Ors., (1981) 1 SCC 107 , State of Madhya Pradesh v. Ratan Singh & Others, (1976) 3 SCC 470 and Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 ]. 16. 16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case." 7. In view of the aforesaid discussion, present appeals fail and are dismissed accordingly. The impugned judgment and order dated 14/12/2004 passed by the learned Sessions Judge, Dahod in Sessions Case No. 294 of 2004 is hereby confirmed. The accused, if are on bail, they are directed to surrender before the concerned jail authorities within a period of ten weeks from today and if they do not surrender as such, the concerned authority is at liberty to take steps in accordance with law. Their bail bonds, if any, shall stand cancelled. While dismissing the appeals, we may observe that the sentence of life imprisonment, as awarded by the trial court, would not be till the last breath and the case of the appellants - accused may be reviewed by the appropriate authority considering the aforesaid decision of Hon'ble Apex Court in the case of Bhaikon @ Bakul Borah (supra). Registry to return the R&P, if any, to the trial Court forthwith.