ABDUL ISE SULEMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the judgment and order of conviction and sentence passed by the High Court of Gujarat in Criminal Appeal No. 233 of 1976 on 4/25th April, 1979 reversing the order of acquittal dated December 23, 1975 passed by the learned Sessions Judge, Bharuch in Sessions Case No. 30 of 1975. Five accused persons including the appellant were prosecuted in the said Sessions Case No. 30 of 1975 for offences under Ss. 147, 148, 307 and 302 read with S. 149, I.P.C. for murdering one young boy, Ayub Umarji, aged 10 years and injuring P. W. 9, Gulam Musa Mohmed Ismail with gun shot injuries. The learned Sessions Judge was of the view that the prosecution case could not be accepted because the incident was not likely to be witnessed by the prosecution witnesses which, according to the prosecution had happened at night and in all probability the incident had happened earlier and the boy had died because of a cross fire between two fighting groups.

(2.) Against the said judgment of acquittal the State of Gujarat preferred Criminal Appeal No. 233 of 1976 in the High Court of Gujarat against two accused, namely, Hasan Ise Suleman and the appellant Abdul Ise Suleman. The State of Gujarat, however, did not prefer any appeal against the other three accused. The complainant Umarji Vali Aslam filed a Revisional Criminal Application No. 182 of 1976 against all the accused challenging the order of acquittal passed in their favour. Later on, the said complainant did not press the Criminal Revision Application No. 182 of 1976 and the same was dismissed for non-prosecution and Criminal Appeal No. 233 of 1976 was disposed of by the High Court by reversing the order of acquittal and convicting the accused No. 1 Hasan Ise Suleman for offence punishable under Section 324, I.P.C. and sentencing him to suffer rigorous imprisonment for one year on that count. The High Court convicted the appellant accused No. 2 for an offence punishable under Section 302 read with Section 301, I.P.C. and sentenced him to suffer rigorous imprisonment for life. Against such order of conviction the accused No. I preferred Criminal Appeal No. 294 of 1979 but in view of the death of the said appellant Hasan Ise Suleman, during the pendency of this appeal before this Court, the said appeal was dismissed as abated. Criminal Appeal No. 289 of 1979 preferred by appellant accused No. 2 was considered on merits and is being disposed of by this judgment.

(3.) The prosecution case in short is that on April 14, 1979 at about 5.00 p.m. accused No. 4 Ibrahim Ismail who was the servant of the other three accused had beaten the complainant Umarji's uncle Ahmed Aslam with a shoe as the said Ahmed Aslam also known as Master had demanded one rupee from the said accused No. 4 as a contribution for giving water to the bullocks. The complainant after returning from his field at about 7.30 p.m. came to know about such assault on his uncle and thereafter he went to Pir Chakla which was adjoining to his house where he met P.W. 9 Gulam Musa Mohmad who was an injured witness and one Abdul Haq the son of said Ahmed Aslam. While they had been discussing about the incident of that assault of Ahmed Aslam, Kalidas Ibrahim, P.W. 10, also joined them. While they had been talking to Kalidas about the incident, the said persons were near the shop of P.W. 15, Ibrahim and from the said place the house of P.W. 4 was visible. Kalidas then suggested that all of them should go to the house of accused No. 3 because they saw all the accused persons sitting on the benches of the Otla of the house of the accused No. 3. The intention of the complainant and his companions was to make a complaint about the incident o beating Ahmed Aslam with shoe by the accused No. 4 because accused No. 3, Haji Is Suleman, was the head of the family and the master of the accused No. 4. The prosecution case is that one petromax light was burning a the Otla of accused No. 3's house. It is an admitted position that there was no electricity in the village. The further case of the prosecution is that on hearing the complainant the accused No. 3 lost his temper and the other accused persons became very much excited. The said accused No. 3 then shouted at the accused No. 2 Abdul Ise Suleman, namely, the appellant and asked him to bring guns from the house. Accused No. 3 thereafter went to the house and brought three guns and gave one gun to each of the accused No. 1,and accused No. 2 and the accused No., 3 Haji Ise Suleman also kept one gun for:himself. Accused No. 2 gave a leather wallet containing cartridges to accused No. 1 who distributed the said cartridges to accused Nos. 2 and 3 and asked them to load the guns. On seeing this all the said four witnesses including the complainant started running away from the house of the accused No. 3. According to the complainant, the injured witness, Gulam Musa Mohmad, was running behind them while the complainant Kalidas and Abdul Haq were running ahead of Gulam. When the complainant reached the shop of Sadik Mohmad, they saw Khoda Gulam, P.W. 12, and Chandu Bechar, P.W. 13, standing there. According to the complainant, when they started running towards the west on a road leading towards a Khadki and while they were crossing the Pir Chakla, they heard a sound of gun shot and while they were standing in the Naveri, Gulam the injured witness who was following them told them that he was injured by the gun shot on his left hand. Immediately thereafter, they heard another sound of gun shot coming from the direction of the house of accused No. 3 and. thereafter two more sounds were heard by them. A big crowd gathered in front of the house of one Abdul Mohmed Vilavati and the complainant went near the crowd and saw that his son Aiyub was lying there injured by a gun shot on his head and shoulder and on examining him he found that his son was dead. The Police Head Constable from the village outpost arrived there and he took the complainant to the police station where he gave his complaint. The Head Constable thereafter sent the complainant and the injured person Gulam to Jambusar Police Station with the complaint Ext. 32 and according to the P.S.I., M. K. Chaudhari, P. W. 19, complainant, P. W. 8, and injured Gulam, P.W. 9 arrived at Jambusar Police Station at about 0. 15 a.m. and the occurrence report and the offence was registered. The police recorded the statement of Gulam and sent him to the hospital for medical treatment. The P. S. 1. thereafter left Jambusar for village Tankari where the incident had taken place and he reached the place at about 1.30 a.m. and the complianant, P.W. 8, showed to him the scene of occurrence. The P.S.I. made search of the accused persons but they could not be found in the village. The inquest over the dead body was held at about 2.15 a.m. and the statements of witnesses Kalidas, P. W. 10, Musa Mohmed, P.W. 14, Ibrahim, P.W. 15 and others were recorded at about 6.45 p.m. Panchnama of the scene of offence was prepared the next morning. During the search of the house of accused No. 3, a double barrel gun, Article No. 6, was seized under Panchnama Ext. 21, while nothing incriminating was found from the house of accused Nos. 4 and 5. The statements of two eyewitnesses Khoda, P.W. 12 and Chandu P.W. 13 were also recorded on the same day. Ultimately all the five accused persons presented themselves before the P.S. I. at Jambusar Police Station and the accused No. 3 produced the gun licence, Article No. 11, accused No. 1 produced gun licence, Article No. 12, and a combined double barrel bridge loading rifle, Article No. 13, and accused No. 2 produced a gun licence Article No. 14 and a double barrel rifle, Article No. 15. All the said articles were attached under Panchnama. After completion of the investigation, the accused persons were charge-sheeted and they were ultimately committed to the Court of Session.