NISHAR AHMED FAJMOHMED KAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant and another person by name Dilip Bhagwan Rai were prosecuted in the court of Session, Valsad at Navsari, State of Gujarat for the offences punishable under S. 302 and 34 of the Indian Penal Code on the charges that they committed the murder of one Gajanand Patel on 4/8/1984 within the compound of court of Judicial Magistrate (F. C. ) , Pardi. The deceased was an advocate by profession and the General secretary of an employees' union. On 4/8/1984 at about 11.45 a. m. he reached the court of the Judicial Magistrate by car along with four other persons, three of them being advocates. When the deceased was climbing the steps to go to the courtroom, he was shot by the appellant with a pistol. There were three firings. While two of them hit the deceased, one just caused abrasion on his body and fell outside. He was taken to the courtroom and soon thereafter he was removed to Dr Nadkarni's hospital at Pardi where he was given preliminary treatment by Dr Pumima Nadkarni. She advised to take him to Kasturba Hospital at Valsad for further treatment. At about 12.30 p. m. he was taken to the said hospital. A message had meanwhile been given to the DSP, Valsad by a lightning call. A Sub-Inspector rushed to the hospital at about 1. 00 p. m. and recorded the complaint of the victim. Thereafter the Sub-Inspector conveyed the message to the Executive Magistrate who went to the hospital at about 2. 00 p. m. and recorded the dying declaration of the injured. In the said dying declaration as well as in a statement made by the deceased in Dr Nadkarni's hospital, the name of the appellant was mentioned as the person who shot the victim. The doctor started the operation at about 3.30 p. m. and completed the same at about 7.25 p. m. But soon thereafter the victim collapsed and died at about 7.30 p. m.

(2.) It was found that the appellant and the other accomplice were in the courtroom of the Judicial Magistrate (F. C. ) , Valsad for attending a case under police bandobast. The appellant and his accomplice were taken into custody and interrogated by the police. They were arrested at about 8.30 p. m. in the police station at Valsad. According to the prosecution on 4/8/1984 a judgment was to be delivered by the JMFC, Valsad in a case wherein the appellant and his accomplice were accused and they were present in court for that purpose and that the police had given them bandobast as they apprehended breach of peace. Both had left the court premises around 11. 00 a. m. and returned to the court at 12.30 p. m. They were seen to be coming on a motorcycle and parking the same in the compound. As it was raining on that day the clothes of the accused were also found wet.

(3.) The prosecution examined four eyewitnesses three of whom were advocates who went to the court at Pardi along with the deceased in the same car and the fourth being the driver of that car. Dr Pumima Nadkarni who gave the preliminary treatment to the deceased soon after the incident and Dr Harit Desai who operated on the deceased were also examined as PWs 13 and 12 respectively. The secretary of the deceased who had taken him to the hospital in a tempo was examined as Public Witness 7. The Head Constable who wasposted along with other policemen for the bandobast in the court at Valsad was examined as Public Witness 16. The two statements given by the deceased in the hospital were marked as Ex. 44 and Ex. 53. On a consideration of the entire evidence on record, the Sessions Judge held that the prosecution had established its case against the accused beyond any doubt and convicted them under S. 302 and 34 Indian Penal Code. The appellant was convicted also under Section 25-A of the Arms Act. The appellant was sentenced to life imprisonment and payment of fine of Rs 500 for the offence under Section 302 read with Section 34 Indian Penal Code. For the other offence he was sentenced to undergo RI for six months concurrently. The accused preferred an appeal before the High court. During the pendency of the appeal the other accused Dilip Bhagwan Rai expired. On an analysis of the evidence, the High court concurred with the view expressed by the Sessions Judge and confirmed the conviction and sentence. The appellant has preferred this appeal by special leave.