SIRAJKHAN BAUDDINKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellant was tried by Additional City Sessions Judge, City Civil Court, Ahmedabad in Sessions Case No. 68 / 87, for offences punishable under S. 302 of the Indian Penal Code, S. 14(g)(v) of the Bombay State Reserve Police Force Act, 1951 and S. 66(1)(B) of the Bombay Prohibition Act, and has been convicted for aforesaid offences by an order dated 19th May 1988, and being aggrieved by that order, the present appeal is preferred. When the appeal was placed for admission on 20th July 1988 before this Court (Coram : G. T. Nanavati and I.C. Bhatt, JJ.), in exercise of its revisional powers, issued suo motu notice for enhancement of sentence against the appellant.

(2.) The appellant has been served with notice. On his behalf, Mr. M. C. Barot, advocate has appeared and for State, Additional Public Prosecutor Mr. S. R. Divetia has appeared.

(3.) Facts briefly leading to the present prosecution are as under: Dattatrai Vitubha, constable of State Reserve Police Gr. III, who is examined as P.W. 6 moved the investigating machinery by a complaint dated 7-2-1987 Exh. 54. Complaint discloses that on 5-1-1987, they left Gondal for Ahmedabad. Head Constable Bhawarsing Kalyansing (deceased), constable Nirmalsing Ranjitsing P.W. 7, Sirajkhan Bauddinkhan (appellant) and Karansing were on duty in the area known as Chamanpura. On 6-2-1987, as Karansing was on leave, Dattatrai, the complainant, was asked to join duties in place of Karansingh. There is a Ran Basera (a dormitory for overnight for poor person of nominal charges) and these police personnels were accommodated in one room of the Ran Basera. Two persons were required to patrol the area while two were taking rest. Complainant Dattatrai and Nirmalsing were in one shift, while deceased Head Constable Bhawarsing and Sirajkhan, the appellant, were in another shift. On 6-2-87, between 20.00 hrs to 22.00 hrs. complainant and Nirmalsing discharged their duties and returned to Ran Basera. Deceased and appellant in their uniform with their rifles and cartridges left for duty and they locked the main door of Ran Bhsera from outside, the key of which was kept with Bhawarsing. The complainant and Nirmalsing were taking rest. Again they were required to go for duties at 24.00 hours. Deceased and appellant returned, opened the gate after unlocking, awakened them and thereafter, the complainant and Nirmalsing took their rifles and cartridges and left for patrolling. Brother of Bhawarsing was also there as a guest and was sleeping near bed of Bhawarsing. While on duty, complainant and Nirmalsing met some Home Guard personnel, rickshaw drivers and one Khodaji and were just talking. At about 00.50 hrs., they heard gun shots from Ran Basera and hence complainant and Nirmalsing ran towards Ran Basera. On reaching there, Nirmalsing opened the lock with the key which was with him. When they entered, they found the appellant carrying his rifle and cartridges, trying to escape by leaving the gate and he was caught hold there and then. On questioning, the appellant stated that by firing, he has killed Bhawarsing and his brother. There upon, complainant took the rifle and catridges from the appellant and proceeded towards the room where he found Bhawarsing and his brother in dead condition in a pools of blood. Appellant was taken in rickshaw to Civil police chowky, where telephone duty police constable was informed, who asked them to take the appellant to Shahibaugh Police Station. Therefore, the complainant and Nirmalsing took the appellant to Shahibaugh Police Station and produced the weapon and cartridges. These facts were recorded in the First Information Report by Inspector of Police, Shahibaugh Police Station. On receipt of the complaint, investigation commenced. Under a panchnama, rifle, 46 cartridges, which were in a cloth bag i.e. belt specially meant for keeping cartridges and 3 fired catridges were seized. It was found that the appellant has consumed Alchohol. He was forwarded for medical examination to the civil hospital. Experts from the Forensic Science Laboratory were also called. On reaching the place, police officer prepared inquest panchnamas. Panchanama of scene of offence was also prepared. Bayonet, fired cartridge, blood stained clothes, pieces of fired bullets etc. were sized. Statement of Manager of Ran Basera was recorded. Hands of the appellant were washed by distilled water by expert. Investigating Officer recorded the statements of Sureshchandra and obtained the entries from the relevant register indicating issuance of arms and ammunitions. After completion of post-mortem, constable produced certain articles which were seized under a separate panchanama. That articles includes pieces of fired bullet. On receiving the reports from the experts, appellant was charge sheeted in the Court of Metropolitan Magistrate, who committed the appellant to the Court of Session for trial.