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2016 DIGILAW 112 (GUJ)

Akbar Imam Mazhar Imam Syed v. State of Gujarat

2016-01-15

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocates appearing for the respective parties. 2. By way of this Appeal, the appellants accused have felt aggrieved by the judgment and order of sentence and conviction dated 12.07.2007 passed by the learned Presiding Officer and Additional Sessions Judge, 6th Fast Track Court, Gondal, Camp: Jetpur in Sessions No. 55/2006 whereby the appellants were found guilty of the offence under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code and consequently sentenced them to suffer life imprisonment and a fine of Rs. 10,000/- each for the offence punishable under Section 302 of the Indian Penal Code. In default of payment of fine, the appellants accused were directed to undergo further simple imprisonment for one year. 3. The Division Bench of this Court [Hon'ble the Chief Justice Mr. Bhaskar Bhattacharya (as he then was) and Hon'ble Justice J.B. Pardiwala] had rendered its judgment in Criminal Appeal No. 1245/2007 and allied matters which arose out of the common judgment and order of conviction and sentence dated 12.07.2007 passed by the learned Presiding Officer and Additional Sessions Judge, 6th Fast Track Court, Gondal, Camp: Jetpur in Sessions No. 55/2006, whereby all the accused have been acquitted. Relevant part of the said judgment reads as under:- "17. Having regard to the facts of the case and more particularly the case of the prosecution and the nature of the evidence adduced in our opinion no prejudice could be said to have been caused to the accused appellants herein on account of their conviction of the offence of murder with the aid of Section34 of the Indian Penal Code after being acquitted of the offence under Sections, 147, 148 and 149 of the Indian Penal Code as there is a reference of Section 34 of the Indian Penal Code in the charge Exh. 15 and the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would have remained the same if the charge were under Section 34of the Indian Penal Code. 18. Thus, we do not find any merit in the principal contention of the learned counsel appearing for the accused persons and is accordingly rejected. 19. The above takes us to consider the evidence of the three eyewitnesses. 18. Thus, we do not find any merit in the principal contention of the learned counsel appearing for the accused persons and is accordingly rejected. 19. The above takes us to consider the evidence of the three eyewitnesses. 19.1 On a close scrutiny of the evidence of the P.W.7 Asif Yusuf Shaikh, Exh.48, the P.W.8 Iqbalbhai Abdulkadarbhai Shaikh Exh.51 and the P.W.12 Arifbhai Jusabbhai Shaikh Exh.61, we find that the genesis of the prosecution case is highly doubtful and the prosecution has tried to suppress the true origin of the occurrence. Although it is the case of the prosecution that the incident occurred on account of the quarrel which had ensued at around 9 O'clock at night between the two minors i.e. the son of the deceased Altaf and the son of sister of Vajir (absconding accused) on the issue of sitting on a chair yet we are not ready to believe this part of the prosecution case and it appears that the motive behind the incident was something different and which has not come on record. The first impression which all the three eyewitnesses have given to us is that they are not truthful witnesses. A close scrutiny of the evidence of the three eyewitnesses would suggest that they were not able to witness the incident and their versions are contradictory to each other and it is difficult to come to the conclusion as to whose version is the correct version. 19.2 The P.W.12 Arif is the brother of the deceased Altaf. The First Information Report Exh. 62 lodged by the P.W.12 has altogether a different story to narrate. In his First Information Report he has stated that Shabbir Yusuf Saiyed (A-5) had a knife in his hand whereas Vajir Akbar Saiyed (absconding accused) and Rahimbhai Fakir had hockey sticks in their hands. The other accused persons were in company of the three accused persons named above. In the First Information Report it has been stated that after the accused persons left the Milad due to the quarrel which ensued between the two boys, they all returned back in the night. The other accused persons were in company of the three accused persons named above. In the First Information Report it has been stated that after the accused persons left the Milad due to the quarrel which ensued between the two boys, they all returned back in the night. The P.W.12 in his First Information Report has deposed that after seeing the accused persons standing at the place of occurrence he himself and his brother Arif went to them and at that time the accused persons told the P.W.12 and his brother Arif that they had come to beat Altaf and wanted to kill him. In the First Information Report it has been further stated that while the P.W.12 and his brother Arif, both were persuading the accused persons, at that time Altaf came over there and Shabbir (A.5) ran after him and hit a blow on his chest. Due to the injuries sustained by Altaf he fell down. It has been further stated that at that time Manzar (A.3) picked-up a stone and hit a blow on the chest. It is further stated that at that time Altaf shouted that he had been hit with a knife and accordingly the other persons came at the spot of occurrence. 20. It appears that all of a sudden in the further statement the P.W.12 changed the version and stated that it was not Shabbir (A.5) who had a knife in his hand and hit a blow on the chest of Altaf, but it was Vajir who had a knife in his hand and had hit a blow on the chest of the deceased. Although an overt act has been attributed to Manzar (A.3) of having hit a blow with a stone on the body of the deceased but the postmortem report indicates that there was only one injury and the same was the knife injury. The Doctor in his evidence has clearly deposed that there was no other injury on the body of the deceased. 21. Keeping this version of the P.W.12 in mind as narrated by him in the First Information Report, we now proceed to consider the evidence of the P.W.7 Asif. The P.W.7 is also the brother of the deceased Altaf. His version is altogether different than the one which has been stated in the First Information Report. 21. Keeping this version of the P.W.12 in mind as narrated by him in the First Information Report, we now proceed to consider the evidence of the P.W.7 Asif. The P.W.7 is also the brother of the deceased Altaf. His version is altogether different than the one which has been stated in the First Information Report. From the evidence of the P.W.7 it appears that four accused persons were present at the ritual of Milad (1) Vajir Akbar (absconding accused), (2) Guddu Akbar (A.2), Samir Akbar (A.4) and Akbar Saiyed (A.1). It deserves to be mentioned at this stage that the accused persons and the prosecution witnesses are all inter-se related with each other. After the incident of the quarrel between the two boys the above named four accused persons left in protest, the house of the complainant where the ritual of Milad was to be performed. According to the P.W.7, thereafter late in the night the accused persons once again came and at that time Vajir had a knife in his hand, Rahim Rafik A.6 and Shabbir A.5 had hockey in their hands. The P.W.7 has deposed that Guddu, Akbar, Samim and Manzar were also present. They were all standing near the shop of Kavabhai. According to the P.W.7 they called Altaf and therefore, Altaf went to talk to them. This very version appears to be highly doubtful. If the accused persons were armed with deadly weapons and if they had come to assault and kill Altaf then it is very unnatural that Altaf on mere calling by the accused persons would go to them. According to the P.W.7 at that time he himself, his brother Arif, his uncle Iqbal and the other family members were standing on the road. At that time Vajir Akbar hit a blow with the knife and Manzar (A.3) picked-up a stone and hit the same on the chest of the deceased. If the version of the P.W.7 is to be accepted, then the entire version of the P.W.12 as narrated by him in the complaint has to be disbelieved. In the First Information Report it has been stated that Shabbir Yusuf (A.5) had ran and had come to the house of Altaf and thereafter hit a knife blow. 22. We shall now consider the evidence of the P.W.8 Iqbalbhai Shaikh. In the First Information Report it has been stated that Shabbir Yusuf (A.5) had ran and had come to the house of Altaf and thereafter hit a knife blow. 22. We shall now consider the evidence of the P.W.8 Iqbalbhai Shaikh. The P.W 8 is the brother of Mariyamben, therefore, it appears that the P.W.8 is the maternal uncle of the deceased. The P.W.8 had come to Jetpur from Ahmedabad to attend the ritual of Milad. The version of the P.W.8 is altogether different. According to him at around 11.45 in the night the sister of the deceased, namely, Nasimbanu told the P.W.8 that her father-in-law and all had come to quarrel and therefore, requested the P.W.8 to persuade them. Therefore, the P.W.8 himself, Arif, Banuben, Nasimben, Salmaben, Umarbhai, Aminaben all together went near a grocery shop owned by one Kavabhai. All the accused persons were standing near the shop of Kavabhai. According to the P.W.8 the accused persons were armed with weapons and at that time Vajir hit a blow with a knife on the chest of the deceased and the others were exhorting. The most interesting part of the evidence of the P.W.8 is that Altaf, the deceased had shouted that he had been hit with a knife blow and that they all should not go there. If Altaf had shouted that he had been hit with a knife blow and such shout was heard by all these persons who were standing, then it is very difficult to believe that the P.W.8 had the occasion to see the incident. In his cross-examination the P.W.8 has deposed that the deceased had not come near them after sustaining injuries stating that he had been hit with a knife blow and that the persons gathered should not go at that place but in fact the deceased had shouted from the place where he had been hit with a knife blow. 23. The P.W.12 i.e. the complainant has a third version to narrate. According to the P.W.12 after the return of the accused persons, they all were found standing near the shop of Kavabhai. The P.W.12 and his brother Asif and his uncle went near them. According to the P.W.12 the accused persons told them that they had all come to beat Altaf and to kill him. According to the P.W.12 after the return of the accused persons, they all were found standing near the shop of Kavabhai. The P.W.12 and his brother Asif and his uncle went near them. According to the P.W.12 the accused persons told them that they had all come to beat Altaf and to kill him. While they were persuading them Vajir Akbar hit a knife blow on the chest of Altaf. We fail to understand from where did Altaf arrive while the P.W.12 his brother Asif and his maternal uncle were trying to persuade the accused persons. The P.W.12 in his cross-examination has deposed that in fact the deceased had come running at the place where the P.W.12 was standing from the place of occurrence. If that be so, then how come the P.W.12 could witness the knife blow being hit by Vajir or even the entire incident. 24. Thus, although the prosecution case is based on the evidence of the three eyewitnesses, yet the three eyewitnesses do not inspire confidence worth the name. As discussed above all the three have a different story to narrate and if that be so, then it necessarily implies that they are not deposing the true facts and we agree with the submission canvassed on behalf of the accused-appellants that the genesis of the case is highly doubtful and the prosecution has tried to suppress the true origin of the occurrence. 25. It may not be out of place to state at this stage that Vajir the accused, who is alleged to have actually hit the knife blow on the chest of the deceased, is yet to be put on trial as he is absconding from the date of the incident. He is the principal accused as such and the other accused persons herein i.e. the appellants have been convicted with the aid of Section 34 of the Indian Penal Code. It appears to us that with a view to settle some personal score, the names of as many persons as possible have been given implicating them in the crime and this is very common in this type of cases where the parties are at inimical terms. Therefore, it is very important for the court to be cautious and a close scrutiny of the evidence is required. 26. All the panch witnesses turned hostile and have not supported the case of the prosecution. Therefore, it is very important for the court to be cautious and a close scrutiny of the evidence is required. 26. All the panch witnesses turned hostile and have not supported the case of the prosecution. In such circumstances the discovery panchnama of the weapons of offence Exh. 45 has also not been proved by the prosecution. At this stage we may point-out one more infirmity in the case of the prosecution. If it is the case of the prosecution that Vajir, the absconding accused had hit a blow with a knife, then how come that the discovery of the knife has been shown at the instance of A.5 in the discovery Panchnama Exh. 45. This shows the manner in which the investigation has been carried-out. 27. In the overall view of the matter we are convinced that the trial Court committed a serious error in believing the three eyewitnesses and finding the accused persons guilty of the offence of murder. Resultantly, all the appeals succeed and are hereby allowed. The order of conviction and sentence imposed on each of the accused-appellants are hereby set aside. All the accused persons are acquitted of the charges framed against them. 28. It appears that all the accused persons except the original accused No. 5 Shabbir Yusufbhai Kadri were released on bail pending the final disposal of their respective appeal. 29. We are informed by Mr. Barot appearing for the accused No. 5 Shabbir Yusufbhai Kadri that he was released on temporary bail and thereafter he failed to surrender before the jail authority. 30. In such circumstances, it appears that the jail authority might have registered a jail offence against the accused No. 5 for not surrendering on expiry of the period of temporary bail. However, the acquittal of the accused No. 5 of all the charges shall not preclude the jail authority in proceeding against the accused No. 5 in accordance with law if any jail offence has been registered for not surrendering on expiry of the period of temporary bail. 31. As all the accused-appellants except the accused No. 5 Shabbir Yusufbhai Kadri have been enlarged on bail pending their respective appeals, their bail bonds stand discharged." 4. 31. As all the accused-appellants except the accused No. 5 Shabbir Yusufbhai Kadri have been enlarged on bail pending their respective appeals, their bail bonds stand discharged." 4. Hence, as this Criminal Appeal also pertains to the above cited judgment and order, this Criminal Appeal stands allowed and the judgment and order of conviction and sentence dated 12.07.2007 passed by the learned Presiding Officer and Additional Sessions Judge, 6th Fast Track Court, Gondal, Camp: Jetpur in Sessions No. 55/2006 is quashed and set aside. Bail and bail bond, if any, stands cancelled. Record and proceedings, be sent to the concerned Trial Court forthwith.