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2018 DIGILAW 269 (GUJ)

STATE OF GUJARAT v. ABDUL VAHAB ABDULHAKIM MULLA

2018-01-25

A.G.URAIZEE, ANANT S.DAVE

body2018
JUDGMENT : ANANT S. DAVE, J. 1. Criminal Appeal No.1226 of 2005 is filed by the appellant, State of Gujarat, under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence qua original accused Nos.1 to 7 and 13 who came to be convicted pursuant to the judgement order dated 10.12.2004 passed by learned Additional Sessions & Joint District Judge, (Fast Track Court No.4) Bharuch in Sessions Case No. 119 of 2002. 2. Criminal Appeal No.23 of 2005 is preferred under Section 374 (2) of Code of Criminal Procedure, 1973 against the very judgement by the appellants, original accused Nos.1 to 7 and 13 against the conviction order passed vide judgement order dated 10.12.2004 passed by learned Additional Sessions & Joint District Judge, (Fast Track Court No.4) Bharuch in Sessions Case No. 119 of 2002. 3. The accused persons were tried in the Court of learned Additional Sessions & Joint District Judge, (Fast Track Court No.4) Bharuch in Sessions Case No.119 of 2002 for the offences punihjsbale under Sections 143, 147, 148, 149, 337, 332, 436, 427, 188, 120B of Indian Penal Code and Section 135 of the Bombay Police Act and at the end of the trial the learned judge convicted the accused Nos. 1 to 7 as well as accused No.13 inflicting three months simple imprisonment for the offence punishable under Sections 143, 147 and 149 and fine of Rs.200/- and in default of that further seven days simple imprisonment while simple imprisonment for one year and fine of Rs.500/- and in default of that further fifteen days simple imprisonment for the offences punishable under sections 332, 337 and 149 and fine of Rs.200/- and in default of that further seven days simple imprisonment. While simple imprisonment for one year and fine of Rs.500/- and in default of that further fifteen days simple imprisonment for the offences punishable under Sections 332, 337 and 149 of Indian Penal Code, as well as simple imprisonment for one year and fine of Rs.500/- and in default of that further fifteen days simple imprisonment for the offences punishable under Sections 427 and 149 of Indian Penal Code. The learned Judge also convicted the accused persons for the offences punishable under Sections 188 and 149 and directed to pay fine of Rs.100/- and in default of that further seven days simple imprisonment. The learned Judge also convicted the accused persons for the offences punishable under Sections 188 and 149 and directed to pay fine of Rs.100/- and in default of that further seven days simple imprisonment. It is however, no separate punishment was warranted for the offences under Section 135 of the Bombay Police Act. All the punishments were directed to run concurrently. 4. That learned Sessions Judge has been pleased to acquit the original accused Nos. 8, 9, 10, 11 and 12 from the charges levelled against them after giving benefit of doubt. 5. The brief facts leading to the case is as under: 5.1. The complainant Jasvantbhai Dhirajsinh, Head Constable attached to Bharuch City ‘B’ Division Police Station has lodged the complaint alleging inter-alia that on 1.3.2002 at about 14 hours when he along with other police personnel were present at Old Mamlatdar Officer at fixed point duty, at that time mob comprising of 50 to 100 persons of minority community came from Hajipir Kirmani Mosque towards Lalbazar Pkhalivad, Rajput street shouting “Marro Kaapo and set ablaze the houses”. The complainant along with other police personnel ordered mob to disperse, but the mob did not comply with the order and started pelting stones. Since mob was having lethal weapons in their possession a message was transmitted to the police mobile and hence other police personnel were reinforced and ordered the mob to disperse but the mob did not comply with the order. Hence, four gas cells were fired from the Gas Gun, at that time gunman Mehbubkhan received stone injuries and therefore he was sent to the hospital for medical treatment. It is the further case of the prosecution that some of the members of mob tried to ignite the houses and also set ablaze auto-rickshaw. Hence, police intercepted the accused persons (1) Abdulvahab (2) Gulam Murtuja (3) Mohammad Saffi (4) Vali Mohammad (5) Gulam Khalik (6) Mohsin Abdul (7) Irfan Gulamdhosh all residents of Hajirpur Kirmani, and rest of the accused persons fled away from the scene. Accordingly, the complaint was registered and investigation was submitted after collecting ample evidence against the accused persons. The charge-sheet came to be filed before the competent court and since the offence was exclusively tribal by the Sessions Court, the same was committed to the court of sessions under section 209 of Criminal Procedure Code. 6. Accordingly, the complaint was registered and investigation was submitted after collecting ample evidence against the accused persons. The charge-sheet came to be filed before the competent court and since the offence was exclusively tribal by the Sessions Court, the same was committed to the court of sessions under section 209 of Criminal Procedure Code. 6. Learned APP Ms.Shruti S. Pathak appearing for the State of Gujarat-appellant in the Criminal Appeal (For Enhancement) No.1226 of 2005 and Mr.Saiyed, learned advocate appearing for convicts-appellants in the appeal canvass his submissions namely for enhancement of the sentence for convicts and to set aside the conviction and sentence so recorded against the convicts. As stated earlier, the genesis of the crime is in the incident of violence particularly of possessing weapons, pelting stones and causing damage and setting ablaze one auto rickshaw and two houses etc. The trial Court examined 21 witnesses and 11 documentary evidences. The respondents-convicts were charged for the offences mainly about rioting and following unlawful assembly, injuring police personnels in the aftermath of communal referred to riots after burning of Sabarmati Express Train at Godhra. 6.1. The case of the prosecution rest on memo of arrest of respondents-convicts, testimonies of by and large of prosecution witnesses who also happened to be members of police party trying to control violent mob, medical witnesses etc. Learned APP would contend that one injured police personnel, P.W.14 Mehboob Khan supported the case of the prosecution and injuries on body of person were duly certified based on medical certificate and received the treatment at Government Hospital, Bharuch. That burnt rickshaw and damaged houses, for which, P.W.1, Jaswant Gohil, Head Constable and an eye witness, also a complainant remained unimpeached in his testimonies before the Court likewise P.W.9, P.W.10, P.W.11 and P.W.12 constables also supported the case of the prosecution. Learned trial Judge, therefore, rightly believed the case of the prosecution for convicting the respondents but while imposing sentences, too lenient view was taken of the overall incident and sentence imposed upon them is grossly inadequate which deserves to be enhanced. Learned trial Judge, therefore, rightly believed the case of the prosecution for convicting the respondents but while imposing sentences, too lenient view was taken of the overall incident and sentence imposed upon them is grossly inadequate which deserves to be enhanced. Learned APP has taken us to other documentary evidence and submitted that maximum punishment prescribed for the offences like 436 is life imprisonment or even imprisonment of either description that term which may extend to 10 years and that other offences namely under Section 337, 427 and 149 of Indian Penal Code also provide for punishment upto 1 year to 2 years. Thus, respondents-convicts are members of unlawful assembly and were arrested from the scene of offence ought to have been sentenced to the maximum for the offences which stood proved beyond reasonable doubt. 7. Mr.Saiyed, learned advocate appearing for the respondents-convicts in enhancement appeal and appellants for appeal against conviction however would contend that various panchas namely P.W.2 , panch witnesses of discovery of weapons, P.W.3 panchnama of scene of offence, P.W.4 panch of recovery of empty cells of tear gas of panchnama of panch of arrest. P.W.6, a rickshaw driver whose rickshaw was allegedly burnt, P.W.7, P.W.8 all have become hostile. All the above witnesses have not supported the case of the prosecution and simply because the convicts came to be arrested from nearby locality of the scene of offence and that their presence in the area in which they reside cannot be considered as their over tact. Even, one of the accused receiving burn injuries to which reliance is placed by learned trial Judge based on medical evidence of P.W.18 itself is no ground that he was one of the members of unlawful assembly and played any over tact. That police witnesses and their testimonies in the backdrop of such documentary evidence and barring police personnels other witnesses have not supported the case of prosecution, the convicts deserve acquittal by giving them benefit of doubt since convincing, cogent and clinching evidence is lacking connecting the accused with the crime. 7.1. That police witnesses and their testimonies in the backdrop of such documentary evidence and barring police personnels other witnesses have not supported the case of prosecution, the convicts deserve acquittal by giving them benefit of doubt since convincing, cogent and clinching evidence is lacking connecting the accused with the crime. 7.1. Alternatively, it is submitted that even though conviction is recorded, the sentence imposed by learned trial Judge which is maximum to one year out of which all the convicts have almost suffered the sentence of 6 months or so, to be considered as sufficient sentence and accordingly appeal for enhancement under Section 377 filed by the State deserves to be rejected by allowing appeal against conviction under Section 374(2) by the convicts- appellants. 8. We have perused the entire record of the case in the backdrop of rival submissions and reasons, findings and conclusion drawn by the learned trial Judge recording conviction of the respondents and imposing sentence accordingly. 9. That incident in question did take place on 1st March, 2002 when the incident of burning of Sabarmati Express Train was reported on 27.2.2008 pursuant to which, a call was given for Gujarat bandh. That any violence which broke out, the temper of both the communities were running high at some places and persons involved in the incident about causing damage to two houses and one auto rickshaw. Two witnesses namely P.W.6 driver of the rickshaw, no doubt deposes that 7 accused were arrested from the spot but had not given any name of the accused nor attributed any role about commission of crime. Likewise, P.W.8 confirms to have witnessed the incidents around 1:30 to 2:00 p.m. in the afternoon but in the cross-examination she has also not supported the case of the prosecution. P.W.9, police constable also do not disclose any specific role of any accused but admits that mob have tried to burn houses and auto rickshaw and four tear gas shells were bursted. So is the testimonies of other police witnesses. Injured P.W.14 was taken to the Civil Hospital and received treatment from 1st March, 2002 to 4th March, 2002 as indoor patient but again failed to attribute any role to any of the accused or naming them. So is the testimonies of other police witnesses. Injured P.W.14 was taken to the Civil Hospital and received treatment from 1st March, 2002 to 4th March, 2002 as indoor patient but again failed to attribute any role to any of the accused or naming them. P.W.15 upon receiving message of stone pelting and rioting and made efforts to arrest 7 accused from the spot but also admits in cross-examination that in their presence houses were not burnt. That one of the accused receiving burn injuries due to acid and was treated as indoor patient would at the most establish his presence at the scene of offence. So far as findings recorded based on appreciation of evidence by the trial Court, it emerges on record that respondents accused were apprehended from the spot but at the same time little doubt is created about their over tact of causing damage to the property or injuring police personnels. The conviction is no doubt is secured also for offences under Sections 143, 147, 148 and 149 of Indian Penal code and no over tact is as such envisaged but intention or object or both can be gathered of member of unlawful assembly by the criminal act committed by them based on material on record namely whether the assailant was simply passerby or was available because of his natural conduct, possession of weapon and so long he continues to remain with unlawful assembly, such member of unlawful assembly can be convicted by inferring intention knowledge from such circumstances. In the facts of this case considering the totality of circumstances and the nature of evidence available and quality and quantity analysis thereto, convince us not to disturb conviction so recorded by the learned trial Judge for respective offences but we deem it just and proper that sentence so suffered by the convicts will be sufficient sentence in the circumstances of this case warranting no enhancement or setting aside the conviction and sentence of the extent as above modified. 10. The State appeal being Criminal Appeal No.1226 OF 2005 for enhancement of the sentence fails for the foregoing reasons. 11. Criminal Appeal No. 23 OF 2005 is partly allowed. 10. The State appeal being Criminal Appeal No.1226 OF 2005 for enhancement of the sentence fails for the foregoing reasons. 11. Criminal Appeal No. 23 OF 2005 is partly allowed. All the appellants i.e. original accused No.1 to 7 and 13 who are bailed out by this Court and sentence suffered by them prior to that be treated as sufficient sentence under the circumstances and to that extent sentences imposed by the Sessions Court stand modified. 12. Bail Bonds stand cancelled. 13. R & P be sent back to the trial court forthwith.