Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 785 (GUJ)

Asif Mohammad Ali Pathan v. State of Gujarat

2017-04-11

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of a judgment dated 21.2.2013 passed by the learned Additional Sessions Judge, Ahmedabad, in Sessions Case No. 188/2011. 2. Briefly stated, the prosecution version was that on 3.8.2010, complainant Chunilal Gheesaram arrived at Kalupur railway station at Ahmedabad with his brother-in-law Kasturbhai Prajapati from Rajasthan. It was late at night. They wanted to go to Isanpur area of the city. They hired an auto-rickshaw waiting outside the railway station in which already some passengers were sitting which included, besides the driver, one lady and three men. The auto-rickshaw was taken in a wrong direction on the guise that one of the passengers had to go to a dentist. The auto-rickshaw was taken through the by-lanes of the city at a place which was deserted and had no light. There accused No. 1 Asif Pathan took out a knife and a revolver and stabbed Kasturbhai on the left side of the chest causing his death. Even the complainant Chunilal was stabbed a couple of times. Cash of Rs. 15,550/- was taken away from Chunilal along with his gold chain and the mobile phone. Two earrings were taken away from the ears of Kasturbhai. Some sundry cash from the pocket was also stolen. 3. The five accused were under exh.6 charged with offences punishable under sections 396, 397, 394 of the IPC and section 135 of the Bombay Police Act. Accused No. 4 Shahrukh was a juvenile. His case was separated and he was sent to Juvenile Court. Rest of the accused were tried by the Sessions Court. 4. The learned Additional Sessions Judge in the impugned judgment convicted accused No. 1, 3 and 5 for the offences punishable under sections 396 and 394 of the IPC and sentenced to life imprisonment and rigorous imprisonment for six years respectively. Accused No. 1 was also convicted for offence under section 135(1) of the Bombay Police Act. The learned Judge acquitted accused No. 2 Radha @ Payal on the ground of doubtful identification. 5. Accused No. 1 has filed Criminal Appeal No. 929/2013, accused No. 3 has filed Criminal Appeal No. 829/2013 and accused No. 5 has filed Criminal Appeal No. 745/2013. 6. We may record the gist of the evidence. Chunilal Gheesaram Chaudhary, PW-11, exh.75, was the injured eyewitness and the first informant. 5. Accused No. 1 has filed Criminal Appeal No. 929/2013, accused No. 3 has filed Criminal Appeal No. 829/2013 and accused No. 5 has filed Criminal Appeal No. 745/2013. 6. We may record the gist of the evidence. Chunilal Gheesaram Chaudhary, PW-11, exh.75, was the injured eyewitness and the first informant. He is the most important witness in the case. He deposed that he resides at Surat and is engaged in the business of preparing and selling the ornaments. On 13.7.2010, he had gone to his native place to be by the side of his wife during her delivery. His wife delivered on 20.7.2010. After she was discharged from the hospital, he had started his journey to reach Surat. He took a train in the afternoon and reached Kalupur railway station at Ahmedabad at 10:30 at night. He was travelling with his brother-in-law Kasturji Nathaji. At the railway station, they hired one of the rickshaws standing for going to Isanpur. The rickshaw already had four passengers, one girl and three boys, besides the driver. The driver took two of these boys along with him in front. He and his brother-in-law were made to sit in between the girl and one tall man wearing a raincoat. The rickshaw was taken in a wrong direction. When asked, the driver said that the person in the raincoat had to go to a dental clinic. He would first be dropped there. The rickshaw was taken through narrow by-lanes and was not stopped anywhere where people were present. The rickshaw was finally taken to a deserted lane. There the person in raincoat took out a knife and a revolver and asked them to handover whatever they have. The rickshaw driver also made the same demand. There was a scuffle during which the person in raincoat stabbed his brother-in-law on the back. He stabbed the witness also a couple of times. The people sitting in the rickshaw removed his clothes, took away Rs. 15,000/- from his pocket and two gold chains. When he told the girl to stop these people, the girl pleaded helplessness saying, what could she do. These assailants took away his brother-in-law's earrings from his ears also and some cash from his pocket. They were kicked out in that deserted lane. He gave the description of the persons in the auto-rickshaw. Regarding the lady, he said that she was wearing a Burkha. These assailants took away his brother-in-law's earrings from his ears also and some cash from his pocket. They were kicked out in that deserted lane. He gave the description of the persons in the auto-rickshaw. Regarding the lady, he said that she was wearing a Burkha. He then started shouting upon which people gathered there. Someone called the ambulance and also informed the police. The people from the surrounding area gave him pant to wear and a bed-sheet to cover him. In the meantime, his brother-in-law had died. The police showed photographs of many people from their mobile phones from which he identified all the persons inside the rickshaw except the girl whose photograph was not there. He was called for test identification parade during which he had identified all the accused. The FIR was registered which was produced at exh.76. The witness identified all the accused before the Court. Accused No. 1 as the person wearing the raincoat who had wielded the knife. Accused No. 2 was the lady accused. Accused No. 3 Ajay Manudas was referred to as the other person sitting in the rickshaw. Accused No. 5 Sidik Liyakat was driving the auto-rickshaw. Juvenile Shahrukh Pathan accused No. 4 was not present before the Court since his case was already separated. The witness also identified his clothes, the clothes of his brother-in-law, which they were wearing at the time of the incident, the weapons the knife and the revolver, mobile phone instrument and the gold chains. In the cross examination, he agreed that there was no light inside the rickshaw. He however, denied that they had boarded the rickshaw in a hurry clarifying that they had first settled the fare before boarding. Though he agreed that the place of the incident was totally deserted and there was no light at the spot, suggested that some light was coming from the factory nearby. To the question whether the police had shown the photographs to him, he answered that the police had shown several photographs from which he identified the accused. In the FIR exh.76, he had given similar version of boarding the train from Rajasthan to go to Surat on 3.8.2010 and having arrived at Kalupur station at Ahmedabad at 10:30 at night when in the auto-rickshaw they were taken to an isolated place where they were assaulted with a knife and robbed. 7. In the FIR exh.76, he had given similar version of boarding the train from Rajasthan to go to Surat on 3.8.2010 and having arrived at Kalupur station at Ahmedabad at 10:30 at night when in the auto-rickshaw they were taken to an isolated place where they were assaulted with a knife and robbed. 7. All the five accused were arrested under panchnama exh.27 from a common place. The panch witness Rashid Ajijmohammad Chippa, PW-2, exh.26 however, turned hostile but admitted his signature on the said panchnama. As per this panchnama exh.27, all the five accused were found from Gota area of city of Ahmedabad in a house situated in the housing colony. During such process, cash of Rs. 15,550/-, the gold chain and the earrings were recovered. The weapons knife and revolver which was in fact, actually a lighter were also recovered. From the same place, the auto-rickshaw with registration No. GJ-01-AY-4685 was also seized. 8. Mohamadhussen alias Umarhussen, PW-19, exh.102, was the owner of the auto-rickshaw. He deposed that he had purchased the auto-rickshaw in the year 2006 and gave it on rent for plying in the year 2010. He had given the auto-rickshaw to Ajay Manudas accused No. 3. Later, on he came to know that rickshaw was used for commission of the offence. He identified Ajay Manudas before the Court. 9. Lakshmanbhai Keshavlal Parghi, PW-20, exh.103, was the Executive Magistrate in whose presence test identification parade of all the accused was done in the hands of the complainant Chunilal. He had recorded such proceedings in the panchnama exh.106. 10. Dr. Alpesh Jhaverchand Shah, PW-17, exh.97, had carried out the postmortem and issued the postmortem note exh.97. He had recorded the injuries on the chest and on the ears of the deceased. He agreed that such injuries could be caused by muddamal article knife. 11. Parbatbhai Veljibhai Pargaru, PW-20. exh.113, PSI Sangani, had carried out the raid of the premises from where all the accused with muddamal articles were arrested. 12. Mansukhbhai Marutibhai Vasava, PW-28, exh.119, was the investigating officer. He gave detailed account of the steps taken during such investigation. 13. Majority of the panch witnesses turned hostile and we have therefore, not referred to various panchnama. 14. Various articles collected during the investigation was sent for forensic analysis. 12. Mansukhbhai Marutibhai Vasava, PW-28, exh.119, was the investigating officer. He gave detailed account of the steps taken during such investigation. 13. Majority of the panch witnesses turned hostile and we have therefore, not referred to various panchnama. 14. Various articles collected during the investigation was sent for forensic analysis. FSL report read with serological report exh.132 would show that the deceased had blood group 'A' which obviously was found from his clothes. Though blood was found from the knife, the group could not be detected. 15. On the basis of such evidence, the learned trial Judge found the involvement of accused No. 1, 3 and 5 to have been established. Identification of accused before the Court was found reliable, except in case of accused No. 2 who was wearing a Burkha. She was the sole accused therefore, to be acquitted. It was found that though accused No. 1 was the only one who had wielded the knife, all the accused had participated in commission of the offence of dacoity during which the murder was committed. The accused were therefore, convicted for offences punishable under sections 396 and 394 of the IPC. 16. We may assess the evidence on record. As noted, undoubtedly, the most important witness is Chunilal Gheesaram PW-11. He had taken a train from Rajasthan to go to Surat. In the process, he reached at Kalupur station at Ahmedabad along with his brother-in-law at 10:30 at night. They hired an auto-rickshaw to go to Isanpur. There were in all five people, the rickshaw driver and four passengers inside the auto-rickshaw. The two new passengers were made to sit in the centre of the seat. A lady passenger and another person wearing a raincoat sat on the either side. Instead of going to Isanpur, rickshaw was taken in a wrong direction on the pretext of taking one of the passengers to a dentist. The rickshaw was driven through narrow by-lanes and was stopped at a totally deserted place where accused No. 1 took out a knife and showed a revolver and demanded all the valuables from these two passengers. The auto-rickshaw driver who was later on identified as accused No. 5 also joined the same demand when a scuffle took place. Accused No. 1 stabbed Kasturbhai on the back and also gave a couple of blows to the complainant. They were left there in such condition. The auto-rickshaw driver who was later on identified as accused No. 5 also joined the same demand when a scuffle took place. Accused No. 1 stabbed Kasturbhai on the back and also gave a couple of blows to the complainant. They were left there in such condition. People from surrounding areas rushed to their help, called ambulance and the police. Obviously, the assailants were unknown to the witness. The police, according to this witness, showed many photographs in the mobile phones from which he could identify the four male accused and clarified that the picture of the lady was not there. The Executive Magistrate conducted the test identification parade a couple of days later during which the witness apparently identified all the five accused. The witness also identified the five accused before the Court. At the time of arrest of the five accused, the investigating agency had recovered cash of Rs. 15,000/- along with gold chain and other valuable articles robbed from the complainant and his brother-in-law. The auto-rickshaw was also lying there which belonged to Mohamadhussen PW-19. According to his deposition, he had given auto-rickshaw to accused No. 3 Ajay Manudas on rent. 17. Insofar as the incident, as stated by the complainant Chunilal PW-11 is concerned, we have no doubt. The murder of the brother-in-law of the complainant and injuries received by him and loss of valuable articles, all point to the fact that the two were taken in the auto-rickshaw to an isolated place and robbed and also injured. 18. The only question is about the reliability of the identification. The accused were not known to the witness. Their identification of the witness therefore, would have to be minutely scrutinized. We may recall the accused were first identified by this witness from multiple photographs of different persons shown by the police from the mobile phones. If that be so, the effect of test identification parade by the complainant couple of days later gets completely watered down. This witness was first shown the photographs by the police which included those of the accused on the basis of which apparently the investigation was carried out and the accused were arrested. The value of the test identification parade conducted later during which the witness had identified these accused would therefore, be clearly diminished. 19. This witness was first shown the photographs by the police which included those of the accused on the basis of which apparently the investigation was carried out and the accused were arrested. The value of the test identification parade conducted later during which the witness had identified these accused would therefore, be clearly diminished. 19. It is well settled that the substantive evidence is identification of a person by a witness before the Court and the test identification parade cannot take place of such evidence. The prime purposes of the test identification parade are to ensure that the investigation is moving in a right direction and to refresh the memory of the witnesses which would in turn make the identity of an accused by the witness before the Court more reliable. Under certain circumstances, non conducting of test identification parade may be a factor against the prosecution. However, in every case, either non conducting of a test identification parade or a faulty or failed test identification parade would not be fatal. It must depend on facts and circumstances of each case. 20. In the case on hand, the witness had sufficient time and opportunity to observe the facial features of the accused persons. Firstly, Ahmedabad railway station would have sufficient streetlight. When the witness therefore, boarded the rickshaw after negotiating the fare, he had first the opportunity to observe the facial features of the driver himself. The witness pointed out that besides the driver, four more people were sitting in the auto-rickshaw which included a lady. Two of these persons moved in the front seat, one man and woman remained on the back on either side of these two new passengers. Rickshaw moved from place to place through lanes and by-lanes before it was halted at an isolated deserted street. In the process the rickshaw would have moved from place to place through brightly lit streets. It was not even the suggestion of the defence that the passengers in the auto-rickshaw were trying to hide their faces. They were not wearing hats, dark glasses or masks to prevent future identification. The complainant therefore, had ample opportunity to see their faces to be able to identify them later. 21. In the complaint itself he had given the approximate age of the different accused, their build and the kind of clothes they were wearing. They were not wearing hats, dark glasses or masks to prevent future identification. The complainant therefore, had ample opportunity to see their faces to be able to identify them later. 21. In the complaint itself he had given the approximate age of the different accused, their build and the kind of clothes they were wearing. All these are the indications that he had sufficient opportunity to see the accused and had enough presence of mind to remember the important details about the accused. Identity of the accused No. 1, 3 and 5 by this witness, is therefore, totally reliable. 22. It was argued that there was no role played by accused No. 3 and 5. This is however, not quite correct. As per Chunilal PW-11 when the accused No. 1 made demand handing over the cash and the valuables, the auto-rickshaw driver also supported him in such demand. All the accused removed his clothes and threw him out on the street. The rickshaw was given on rent by Mohamadhussen PW-19 to accused No. 3. He was sitting in the rickshaw posing as a passenger and not as a driver. It was accused No. 5 who was driving the auto-rickshaw. His act of taking the rickshaw through narrow lanes and by-lanes of the city of Ahmedabad and then stopping at an appropriate place where there was dim light and no public movement would show that he was along with accused No. 1 and 3 equally involved in carrying out the plan to rob the passengers. 23. We have therefore, no hesitation in holding that accused No. 1, 3 and 5 were involved in robbing the complainant and his brother-in-law. Accused No. 1 had also stabbed deceased Kasturbhai and injured the complainant Chunilal. 24. The question is which offence these accused can be stated to have committed? We may recall the lady accused No. 2 has been acquitted by the trial court on the ground of unreliable identification. The trial Court correctly recorded that as per the witness Chunilal PW-11 the lady was wearing a Burkha and only her eyes were visible. If that be so, it was not possible for the complainant to identify this woman either before the Executive Magistrate or before the Court. The trial Court correctly recorded that as per the witness Chunilal PW-11 the lady was wearing a Burkha and only her eyes were visible. If that be so, it was not possible for the complainant to identify this woman either before the Executive Magistrate or before the Court. The State has not preferred appeal against the acquittal of accused No. 2 and we would therefore, have ordinarily rested our inquiry about her at this stage. However, a great deal depends on the question of involvement of the lady accused, whether such person happens to be accused No. 2 or anyone else. This is so because, even if the accused No. 2 is acquitted on the ground of unreliable identification, but the evidence shows involvement of an additional though unidentified accused, the number of accused would be five which is required for the offence of dacoity. In other words, if the lady accused were to be acquitted solely on the ground of incorrect or unreliable identification, but the Court were to believe that an additional lady accused did participate in commission of the offence, remaining four accused cannot argue that the offence of dacoity would not be made out. It is in this context, we would like to revisit the evidence of complainant Chunilal PW-11. In his entire deposition, he had not attributed any role to the lady passenger who was present in the auto-rickshaw. He only referred to her presence when he and his brother-in-law boarded the rickshaw. He in fact, suggested that when the other accused were robbing them, he complained to the lady and asked her to stop the other accused. The answer of the lady was "what could she do". Noting comes out from the deposition of this witness which would suggest that the lady present, be it accused No. 2 or anyone else had anything to do with the remaining gang of the accused who were in the process of committing the offence of robbery. In view of such evidence, it is entirely possible that the lady was merely and genuinely a passenger. The fact that she did not intervene would not make her an accomplice. At an isolated place late at night obviously a lady passenger would not be in a position to speak up or resist the four assailants, one of them was carrying a knife which he did not hesitate in using. The fact that she did not intervene would not make her an accomplice. At an isolated place late at night obviously a lady passenger would not be in a position to speak up or resist the four assailants, one of them was carrying a knife which he did not hesitate in using. We therefore, believe that there were only four people in the auto-rickshaw who were having the common intention of committing robbery. 25. In that view of the matter, the offence of dacoity would not stand against any of the accused since the same would obviously require involvement of at-least five persons. 26. Section 390 of the IPC defines the term robbery. Section 392 provides for punishment for robbery which could be rigorous imprisonment for a term which may extend to 10 years or with fine and if such robbery is committed on the highway between sunset and sunrise, the imprisonment may extend to 14 years. Section 394 provides for punishment for voluntarily causing hurt in committing robbery. Said section provides that if any person for committing or attempting to commit robbery, voluntarily causes hurt, such person and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine. 27. In view of the facts noted above, accused No. 1 would of-course, be convicted for offence under section 302 of the IPC. The other two accused however, cannot be convicted for the said offence since the common intention does not emerge from the evidence to commit the said offence. The act of accused No. 1 was a solo act. It is not even suggested that when the accused No. 1 used his knife to give blows to the deceased and to the complainant, other accused encouraged him or helped him by holding these persons or in any other manner. The other accused therefore, cannot be convicted for offence under section 302 with the aid of section 119 of the IPC. These accused however, along with accused No. 1 would be convicted for offences punishable under sections 392 and 394 of the IPC. We are conscious that specific charge for these offences was not framed. The other accused therefore, cannot be convicted for offence under section 302 with the aid of section 119 of the IPC. These accused however, along with accused No. 1 would be convicted for offences punishable under sections 392 and 394 of the IPC. We are conscious that specific charge for these offences was not framed. However, what was charged against these accused was more serious offence punishable under section 396 which prescribes punishment for commission of dacoity with murder. 28. Considering the facts and circumstances of the case, following order would meet with the ends of the justice : "Criminal Appeal No. 929/2013 (1) Accused No. 1 is convicted for offences punishable under sections 302, 392 and 394 of the IPC. For offence under section 302, he is sentenced to imprisonment for life. For offence under section 392 of the IPC, he shall undergo sentence of rigorous imprisonment for six years. For offence under section 394, he shall undergo sentence of rigorous imprisonment for seven years. All sentences shall run concurrently. Criminal Appeal No. 829/2013 (2) Accused No. 3 is convicted for offences punishable under sections 392 and 394 of the IPC. For offence under section 392 of the IPC, he shall undergo sentence of rigorous imprisonment for six years. For offence under section 394, he shall undergo sentence of rigorous imprisonment for seven years. Both the sentences shall run concurrently. Criminal Appeal No. 745/2013 (3) Accused No. 5 is convicted for offences punishable under sections 392 and 394 of the IPC. For offence under section 392 of the IPC, he shall undergo sentence of rigorous imprisonment for six years. For offence under section 394, he shall undergo sentence of rigorous imprisonment for seven years. Both the sentences shall run concurrently. Accused No. 5 who is on bail shall surrender before the concerned jail authorities to serve out the remaining sentence. He would however, have time upto 31.5.2017 to surrender. (4) Direction for payment of fine as per the judgment of the trial Court qua all the above accused, shall remain unchanged. (5) All the appeals are disposed of accordingly." R&P may be sent back to the concerned trial Court.