SALIM MOHMAD Vs. STATE OF GUJARAT,

JUDGEMENT

(1.) THESE two appeals arise out of Sessions Case No. 6 of 1970 decided by the learned Sessions Judge at Naysari. In that case seven accused were tried for having committed offences under Section 147, 353 read with Section 149, 225 read with Section 149, 426 read with Section 149 of the Indian Penal Code and under Sections 127 and 108 of the Indian Railways Act. The learned Sessions Judge has acquitted the accused of offences under Sections 127 and 108 of the Railways Act. He has convicted all the accused of offence under Section 147 of the Indian Penal Code and sentenced each one of them to undergo rigorous imprisonment for six months and to pay a fine of Rupees 200/ - or in default to undergo rigorous imprisonment for one month. He has also convicted all of them under Section 353 read with Section 149 of the Indian Penal Code and sentenced each one of them to undergo rigorous imprisonment for one year and to pay a fine of Rupees 250/ - or in default to undergo rigorous imprisonment for two months. The next offence of which he has convicted all the accused is under Section 225 read with Section 149 of the Indian Penal Code and he has sentenced each one of them to undergo rigorous imprisonment for one year and to pay a fine of Rupees 250/ - or in default to undergo rigorous imprisonment for two months. Lastly he has convicted all of them under Section 426 read with Section 149 of the Indian Penal Code and sentenced each one of them to undergo rigorous imprisonment for one month and to pay a fine of Rupees 200/ - or in default to undergo rigorous imprisonment for 15 days. He has directed all the substantive sentences to run concurrently. Criminal Appeal No. 475 of 1970 has been filed by the original accused Nos. 3 and 5 against this order of conviction. Criminal Appeal No. 476 of 1970 has been filed by the accused Nos. 1, 2, 4, 6 and 7 against the said order of conviction.

(2.) THE prosecution case is disclosed in details by the evidence of Mansing Gagubha Gohil whose testimony appears at Ex. 5. The incident happened on 26th June, 1969 at about 4.10 a.m. At that time he was serving 'as Police Sub -Inspector in charge of Anti -corruption Bureau, Vapi and was attached to the Anti -Smuggling Squad. With the members of his squad he had gone to Pardi in a jeep. He left Pardi for Bulsar at about 2 -30 a.m. that day by Viramgam Passenger train. He was accompanied by Head Constable Bhikhaji, Head Constable Vaman. Police Constable Madhukar Tapidas and Police Constable Lallubhai. All of them had been travelling by the same train. He checked the third class bogie by which he was travelling as he suspected that some of the passengers were carrying smuggled goods. He found in that compartment two persons - Bihari and Rajnikant who according to him, were in possession of smuggled goods. He, therefore, arrested them and took them to Bulsar where they reached at about 3 a.m. At Bulsar Railway Station they, got down and boarded Dehradun Express bound for Bombay. The two arrested persons were with them. He had earlier received information that some smugglers had been pulling the chain of the railway train and stopping it at Udwada for transporting smuggled goods to Bombay and that some of them had also been travelling in second class compartments. Therefore, when he boarded Dehradun Express as Bulsar he with the members of his party, and the two arrested persons thought of travelling by the second class compartment. In the second class compartment at that time there were members of the railway escort party. When the train neared Udwada railway station the train was stopped by pulling the chain. When the train made an unscheduled stop, on account of the aforesaid reason, at Udwada Station, he saw a crowd of about 25 persons entering the railway platform from the main gate and proceeding towards the second class compartment. They got into the second class compartment and placed their bundles there. In all there were about 12 such bundles which they placed in the second class compartment by which the witness was travelling. Those 25 persons included the accused Nos. 1, 2 and one Narayan Kher who is not before the Court. They thereafter closed the doors of the compartment. Those three persons were arrested by him. The train then started moving out of the station. The accused Nos. 1 and 2 and Narayan Kher at that time shouted that there was Police in the compartment and that they should be released from them. Therefore, the train was again stopped by pulling the chain at some distance after it had started moving out of the railway station. As soon as the train stopped, those who had been stand. In a on the platform went near the compartment and told him that the three arrested persons should be released or otherwise they would not allow the train to proceed further. He told them that he had arrested them with smuggled goods and that, therefore, they could not be released. The train again thereafter started moving. It was again stopped by pulling the chain. Those persons who had asked him to release the aforesaid three persons went near the compartment. He tried to pacify them. He requested them to allow the train to proceed further. Thereafter, they started throwing stones at the compartment in which he and the members of his party had been travelling. At that time some more persons arrived there and they also started pelting stones. As a result, the glass panes of the windows of that compartment were broken. They therefore, closed the windows of the compartment by lowering the steel shutters. He opened the door of the compartment slightly and told the crowd to go away and allow the train to proceed. However, the crowd was shouting that the train would not be allowed to proceed further unless the arrested persons were released. It was a crowd of about 300 to 400 persons at that time and all of them had started throwing stones at the witness and members of his party and other passengers in that compartment. The witness, therefore, apprehended that those persons might enter the other compartments of the train and might loot the passengers travelling by that train. He, therefore, fired in the AIR a shot from his revolver in order to prevent the crowd from doing any mischief, having heard the report of the fire -arm the crowd started running away and after about five minutes they stopped throwing stones. The crowd again started throwing stones at the train because the train did not move and they also started approaching the compartment in which the witness and the members of his party were travelling. He, therefore, fired in the AIR a second shot from his revolver. Therefore, the crowd ran away. Everything was quiet for about ten minutes. He then went to the Guard of the train and requested him to stop the train at Vapi Railway Station (where it was not scheduled to stop) because there were some arrested persons with smuggled goods with him. The Guard of the train did not grant his request. He therefore, returned to his compartment and the train started moving. The train then stopped at Palghar Railway Station at about 7 a.m. He and the members of his party and the arrested persons with smuggled goods got down there and at about 9 -15 a.m. they went to Bulsar by another local train. In the compartment in which he and the members of his party were travelling there were other passengers. He had noted down their names before the train had reached Palghar Station. He had also collected the stones which had fallen in the compartment and the pieces of glass panes of the windows which were damaged by pelting of stones. From Palghar the party reached Vapi at about 10 a.m. where a Panchnama of the smuggled goods was made. The arrested persons were with him. He thereafter informed the Police Inspector Anti -Corruption Branch on telephone about the incident. He was directed to file a complaint with the Railway Police Station, Bulsar. He therefore, went to Bulsar and lodged the complaint with the Police Sub -Inspector, Bulsar. So far as the identity of the accused is concerned, he had stated in his examination -in -chief that he had identified five persons from the crowd who had accompanied the accused Nos. 1, 2 and Narayan Kher at the Udwada Railway Station. They are the accused Nos. 3 to 7. The accused Nos. 3 to 7 were instigating others and were also throwing stones at his party. Twelve bundles of smuggled goods were attached by him. After having inspected those smuggled goods by opening those twelve bundles, they could not be repacked into 12 bundles and, therefore, they were repacked into 14 bundles. He has proved the complaint which he lodged with the Police Sub -Inspector at Bulsar. It is Ex. 7.

(3.) THIS is the prosecution case. There is no dispute about the occurrence of the incident and about the train having stopped at Udwada Railway Station at the material time. Apart from the evidence of Police Sub -Inspector Gohil and his companions there is sufficient independent evidence which proves these two facts. The evidence of Prabhakar Gopal who was Signal Inspector, Bulsar at the relevant time, Mahakal Manibhai Desai who was the Assistant Station Master at Udwada, Pritam Nanumal who was another Station Master Udwada, Kekobad Cawasji who was the Guard of the train and Nanu Khalpa who was a cabinman at Udwada Railway Station proves to the hilt that the incident of throwing stones at the material time at this railway train had occurred. Their evidence also proves that the train by which Police Sub -Inspector Gohil and his party were travelling was not scheduled to stop at Udwada but had made an unscheduled stop there on account of the failure of the block. They do not say that the train had made an unscheduled stop at Udwada Railway Station on account of someone having pulled the chain from inside the train to stop it. That is the story to which Police Sub -Inspector Gohil and members of his party have deposed to. Whether the train had stopped on account of the pulling of the chain or on account of the failure of the block is in my opinion not a very material fact. The material fact is whether the train had made an unscheduled stop at Udwada Railway Station in the early hours of the morning that day. The question must be answered in the affirmative in view of the overwhelming evidence of independent railway officers. In these circumstances the material question which survives for my consideration is one relating to identity of the accused Nos. 3 to 7. Is there, satisfactory evidence on record to show that the accused Nos. 3 to 7 were amongst the crowd which threw stones at the railway train in the early, hours of the morning on the day of the incident ? Could they have been identified by prosecution witnesses ? The next question which has been raised for my consideration is that even if the entire prosecution case is taken to be true, the accused nos. 1 and 2 could not be convicted of the offences with which they are charged. I shall deal with the prosecution case against the accused Nos. 1 and 2 later.