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2015 DIGILAW 277 (GUJ)

ALTAFBHAI BHIKHABHAI v. STATE OF GUJARAT

2015-03-12

ANANT S.DAVE, G.R.UDHWANI

body2015
JUDGMENT : G.R.UDHWANI, J. The appellants–original accused Nos.1 and 2 in Sessions Case No.37 of 2004 registered in the Court of learned Sessions Judge, Bhavnagar came to be charged for the offences punishable under Sections 148, 149, 302, 436, 506(2) read with Section 120B and/or 34 of the Indian Penal Code (for short the IPC) and Section 135 of the Bombay Police Act. 1.1 Both the accused persons are convicted for the offences punishable under Sections 302 read with Section 120B and 34 of the IPC and sentenced to undergo imprisonment for life with fine of Rs.250/, in default, to undergo 15 days SI. 1.2 The original accused No.1 is also convicted for the offence punishable under Sections 436, 506(2), 148 and 149 of the Indian Penal Code and under Section 135 of the Bombay Police Act and sentenced to imprisonment and fine. 2. Briefly stated, the prosecution case, as emerging from FIR (Exhibit64) is that on 08/12/2003 at about 05:00 p.m., the informant and his brother riding on a scooter, noticed stationary silver colour Maruti Car occupied by three persons and two persons standing outside the car, who were identified by the informant in the complaint as Altaf Bhikhubhai @ Nathabhai Azambhai Dasadiya, original accused No.1 a resident of Bapesara Kunva and Abdul Samad Aarab, a resident of Aarabval Bhavnagar. The informant and his brother, Firoz thereafter went to their shop and at that time they saw – Sajid Kaji who was running STD PCO in his shop and sent his brother – Firoz for transportation work. After sometime, Firoz came running back with an information that their cousin (mother's sister's son) Sajid Dilavarkhan (not Sajid Kaji) was being beaten by somebody. Said Sajid Dilavarkhandeceased followed informant's brother and deceased was followed by accusedappellants to the shop of the informant with a huge knife and both of them thrashed and assaulted the deceased with the knife on the head, face, chest on the place nearby the steps of informant's shop and when the informant wanted to intervene, the accused warned him of the assault by knife if he dared to interfere. Both the brothers were therefore helpless, as also Sajid Kaji. In the meanwhile, the informant drew an iron pipe and chased the accusedappellants. Both the brothers were therefore helpless, as also Sajid Kaji. In the meanwhile, the informant drew an iron pipe and chased the accusedappellants. 2.1 The shop of the informant was situated near Vadiya Hotel and in front of the said hotel, other two shops being Dil Bahar Electric TV Repairing and Suraj Electrical are situated and it is stated in the FIR by the informant that the other three persons who were occupying the Maruti Car had set ablaze the said shop viz., Dil Bahar Electric TV Repairing and they were also chased by the informant with the pipe. However, all the five escaped in the Maruti Car. Meanwhile, one Police Constable on patrolling duty also unsuccessfully attempted to apprehend these persons. 2.2 Thereafter, the informant returned to his shop when the brother and father of Sajid and one Javed had already arrived. The autorickshaw was arranged and deceased was taken to the hospital by his brother and father. The informant went to the hospital, noticed the injured–Sajid Dilavarkhan Dasadiya Pathan who was ultimately declared dead. The motive of the offence as indicated in the FIR was the keeping of Minaj the daughter of one Allarakhabhai @ Kalubhai Azambhai Dasadiya, resident of Vadva Washing ghat, Bapesara about 08 or 10 years back by Sajid Dilavarkhan Dasadiya, which was disliked by the appellantAltaf Bhikhubhai @ Nathabhai Azambhai Dasadiya. 3. It appears that the complaining party was not satisfied with the investigation and therefore, this Court was moved in a proceedings where ultimately upon the direction for further investigation, the case was investigated. After necessary investigation and report finding the material against the appellants herein and other accused, the case was registered against them and it being triable by the Court of Sessions, was committed as such and the accused, in their statements recorded by the learned Additional Sessions Judge in response to the charge framed against them having denied the commission of offence and requested for trial, the case was put to trial by the learned Additional Sessions Judge. 4. To establish its case, as many as 35 witnesses were examined and various documentary evidence were also brought on record of the trial Court. 5. 4. To establish its case, as many as 35 witnesses were examined and various documentary evidence were also brought on record of the trial Court. 5. The case mainly rests upon the oral testimony of PW 1 – Dr.Vijay Chhatrabhuj (Exhibit38) who performed postmortem of the deceased on 19/12/2003 under the guidance of Dr.Kalel, PW 2 Shrenik Harshadbhai Shashtry (Exh.49), an employee of Reliance Web Store Ltd., for the identification of telephone number 02783104510 owned by Arif, PW 28Jinabhai Balabhai Makwana, Exhibit142 a Police Constable who claims to have seen the appellant running with the weapon of offence towards the Maruti Car possessed by the appellants, PW 29 – Dr.Harshadbhai Padmakant Chauhan, Exhibit148 who examined the accused and found injury on their person and the police witnesses associated with investigation. The case also rests on the documentary evidence supported by the said witnesses. 6. As can be noticed from testimony of various witnesses, the case of the prosecution is that for the purpose of commission of the offence in question, accusedappellants herein had taken a Maruti Car bearing Registration No.MH01DA5826, owned by partnership firm and registered in the name of Farookbhai, a partner of Liyakat, PW20. Both of these witnesses have been declared hostile. However, the testimony of PW20 Liyakat would indicate that accusedAltaf was his acquaintance on account of his relations with his father who was employed as driver by Liyakat on various occasions in past. He could not deny having given the car to the person named Altaf; though feigns ignorance as to the identity of the very same Altaf i.e. son of the aforestated driver. He is also unable to emphatically deny the prosecution case that for the purpose of getting car, he had received a telephone call from mobile No.3104510 stated to be belonging to accusedAltaf. Further, though the witness claims to be the owner of the car, he is unable to spell out the name of the person to whom the car was given, if not to accusedAltaf. 7. As per prosecution case, PW 13–Bachubhai Ibrahimbhai Qureshi, (Exh.103) chokidar of PW 20– Liyakat Abdul Karim Lohiya (Exh.120) was present for discharge of his duties as such when the appellants herein had approached him for taking the car from PW 13 with the permission of Liyakat. 7. As per prosecution case, PW 13–Bachubhai Ibrahimbhai Qureshi, (Exh.103) chokidar of PW 20– Liyakat Abdul Karim Lohiya (Exh.120) was present for discharge of his duties as such when the appellants herein had approached him for taking the car from PW 13 with the permission of Liyakat. The prosecution is unable to successfully bring on record the said facts through the said witness PW 13 even as he turned hostile and justifies that he was not present at the place as he had gone to respond to the nature's call when the car was borrowed and actually taken, though admits that two persons had come for taking the car after a telephonic talk with Liyakat. The crucial facts which emerge from his testimony are the approaching of two persons for taking a car in question with the permission of Liyakat. As indicated above, Liyakat is unable to deny the crucial aspect like ownership of the car and the same having been taken by one Altaf with his permission and his acquaintance with Altaf. Coupled with the aforesaid facts, the inability of Liyakat in naming the person who had taken the car with his permission, if not Altaft the first appellant herein, as also coupled with the fact that a person would not part away with a valuable asset like a car to a stranger, leads to an inference that the car was taken by accused–Altaf from Liyakat between 08:30 and 09:00 a.m. On 08/12/2003. We therefore proceed on the footing that accusedAltaf was in possession of the car in question on the date and time aforesaid. 8. The custody of the car was taken under the Panchnama of the Panchas, PW 16Vajubhai Najabhai (Exh.115) and PW17Vijaybhai Atubhai (Exh.117), both of whom have been declared hostile. However, considering the testimony of PW24 deposing that the Panchnama was drawn, the relevant aspects emerging from the Panchnama (Exh.116) are about the condition of the car with a broken window shed, deflated tires, traces of vomitting, blood stains inside as well as outside the left frontal door of the car. The record also indicate the collection and scientific examination of the blood samples from appellants and those from the scene of offence by FSL in the criminal case registered at Palitana Police Station being ICR No.132 of 2003 wherein also the appellants were allegedly involved but acquitted. The record also indicate the collection and scientific examination of the blood samples from appellants and those from the scene of offence by FSL in the criminal case registered at Palitana Police Station being ICR No.132 of 2003 wherein also the appellants were allegedly involved but acquitted. From the FSL report, it appears that the group of the aforesaid blood stains found from the car could not be verified. Thus, the link connecting the accused with the use of Maruti Car in question in the offence in question has not been established. 9. The prosecution also failed to get the crucial evidence from eyewitnesses PW 5–Akbarbhai Pathan, complainant (Exh.54) and PW 12Firozkhan Babubhai (Exh.101), even as they were declared hostile. Only evidence which the learned APP is in a position to rely upon from their testimony is their presence in the hospital after learning about the death of deceased–Sajidbhai. Similarly, the only evidence which can be pressed into service by the learned APP from the testimony of PW 5 is the fact that the shop named Dil Bahar Electric TV Repairing near Hotel Vadiya where the incident had taken place was being run by the deceased. Another aspect established in his testimony is about the ownership of mobile No.3110188. 10. The prosecution was thus forced to rely upon the testimony of PW 28Jinabhai Balabhai Makwana (Exh.142) in absence of any other eyewitness. While this witness claims to have seen the appellants herein, running towards the Maruti Car; albeit without noticing the registration number thereof, with the weapons of offence and also claims to have identified the appellants during test identification parade held by the Executive Magistrate, who also testifies the witness having identified the two appellants, a serious doubt about the witness having actually seen the face of the appellants, as also a serious doubt about genuineness of the identification of the two appellants in view of admitted position that the appellants were lodged in a lock up for few days during police custody in the Police Station where the witness was discharging his duties, were successfully raised by defence. The fact that the witness could not have seen the faces of the appellants as they were running with the back towards the witness, half a kilometer ahead by him, has been admitted by this witness in the cross examination. The fact that the witness could not have seen the faces of the appellants as they were running with the back towards the witness, half a kilometer ahead by him, has been admitted by this witness in the cross examination. Furthermore, the silence of the witness who was a Head Constable, for three days after seeing the incident and his not immediately informing the control room about the incident, his not following the accused and his omitting the crucial statements under Section 161 like his chasing the accused and return to Vadiya Hotel and noticing the situation on the scene of the offence, omitting to mention having seen the burning shop renders his testimony full of doubts. 11. PW 2–Shrenik Harsahdbhai Shashtry (Exh.49) a witness to establish the identity and subscription of telephone number 02783104510 allegedly belonging to accusedAltaf which was used for conversation with Liyakat for obtaining the car from him, could not give the sufficient details in that regard. 12. PW–4, Ajambhai Abdulbhai Qureshi (Exh.54) a Panch Witness establishes the scene of offence and presence of PW 5, eyewitness at the scene of offence, in his testimony recorded at Exh.54. This would thus indicate the presence of PW 5 at the time of drawl of the Panchnama, which would not necessarily lead to the inference of his presence at the scene of offence at the time of commission of offence. 13. PW 8–Bodat Nagjibhai Manjibhai, is a City Mamlatdar (Exh.90) in whose presence the accused are said to have been identified by PW 28–Jinabhai. From the crossexamination of this witness, it is apparent that he failed to take precautions like ensuring whether accused persons were seen by the witnesses before TI parade, his knowledge about the remand period of the accused with the police, lack of issuance of summons by him to the witnesses for TI parade, etc. His testimony is not required to be discussed in greater detail. Suffice it to say that the identification of the appellants by PW 28 was carried out in highly doubtful circumstances. 14. To establish the procurement of petrol for the purpose of setting ablaze the shop aforestated, PW 11–Basid Rafiqbhai Deraiya (Exh.100), an employee at Ashwin Petrol Pump in Vartej, was unsuccessfully examined by the prosecution even as he turned hostile. 15. 14. To establish the procurement of petrol for the purpose of setting ablaze the shop aforestated, PW 11–Basid Rafiqbhai Deraiya (Exh.100), an employee at Ashwin Petrol Pump in Vartej, was unsuccessfully examined by the prosecution even as he turned hostile. 15. PW 14–Kishorbhai (Exh.105) and PW 15– Rajubhai (Exh.114), the witnesses to establish the recovery of incriminating material like garments worn by the accused at the time of commission of offence and the weapon of offence i.e. the knife, were unsuccessfully examined even as the said witnesses have turned hostile. 16. PW 29–Dr.Harshadbhai (Exh.148) is the doctor establishing eight days old burn injury on the left hand of accused–Altaf and collection of the blood samples of the said accused on 17/12/2003 while he was discharging his duties as a Medical Officer at Mansingji Hospital, Palitana. On the same day, he also examined accused–Abdul Samad and found 8 days old incised wound on his left hand. Beyond that the testimony of this Doctor is not relevant. 17. Rest of other witnesses are either hostile or insignificant or the witnesses associated with investigation or the witness associated with autopsy of the deceased. 18. The scientific evidence establishes the stains of blood of the deceased being 'A' on the garments and the weapon of offence and other incriminating material. The blood collected from the accused is of group 'B'. 19. It appears from record that the father of the deceased, being dissatisfied with the investigation, had moved this Court and other authorities for further investigation which was ultimately done and the relevant material could be collected in the year 2005 for the offence registered on 08/12/2003. However, in view of the hostility of the crucial witnesses, as also other witnesses, the prosecution has failed to establish the case against the appellants beyond reasonable doubt. 20. The only material evidence that the prosecution could adduce is the factum of accused– Altaf borrowing the car from PW 20–Liyakat and the blood stains on the incriminating material as aforestated. It is difficult to rest conviction on such feeble evidence, though we suspect the commission of the crime by appellants, but they are able to get the advantage of hostility of the witnesses, particularly, the eyewitnesses who were related to the deceased. We are thus unable to agree with the findings rendered by the Court below and extend the benefit of doubt to the appellants. 21. We are thus unable to agree with the findings rendered by the Court below and extend the benefit of doubt to the appellants. 21. In the result, the appeal succeeds. The judgment and order of conviction and sentence rendered in Sessions Case No.37 of 2004 by learned Presiding Officer, Fast Track Court No.3, Bhavnagar on 15/11/2006 is quashed and set aside. The appellants are ordered to be acquitted of all the charges levelled against them. Since the appellants are on bail vide order dated 24/12/2008 rendered by this Court in CR.MA No.15361 of 2008 in CR.A. No.2363 of 2006, their bail bonds and sureties shall stand cancelled. However, both the appellants shall comply with Section 437.A of the Code of Criminal Procedure.