AYUBKHAN IBRAHIMKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants- orginal accused nos.l to 3. 8 and 10 along with other seven accused, in all 12 in number, were tried for committing murder of Khalid Gulamkadar Hadafa of Upleta, in Sessions case No. 134 of 1992. At the end of the trial, the learned Add. Sessions Judge, Gondal, by his judgement and order dated 29th March 1995, convicted the appellants for the offence punishable under Section 302 read with Section 149 of IPC and sentenced them to suffer RI for life and to pay a fine of Rs.2,000/- each and in default to further underfo RI for one year. The appellants were, however acquitted of the offences punishable under Sections 109, 153-A and 120-B IPC. Accused Nos. 4, 5, 6, 7, and 9 were acquitted of the offences punishable under Sections 302,147, 148 149,109,153-A and 120-B of IPC and accused Nos. 11 and 12 were acquitted of the above the above offences in addition to Section 143 of IPC it may be stated that against the order of acquittal of these persons no appeal has been preferred by the State of Gujarat.

(2.) The facts giving rise to this appeal may be summatised as under The informant, Iqbal Haji Habib Fulwala lodged a complaint on 11.4.1992 at about 8.00 p.m. before the Upleta Police Station stating therein inter-alia that, on 21st march 1992, murder of Haji Ismail Qureshi Fulwala was committed in Jikariya Masjid Chowk wherein the informant was shown as accused who was arrested and later on released on bail. The cause of murder, according to the informant, was that one Hafis of Tablik sect entered into Jikariya Masjid during Ramzan month, who was driven out by Sunni Muslims. A condolence meeting was held at 9.00 p.m. on 8.4.1992 in Hajiyani Dadima Haveli to mourn the death. In the said meeting, provocative speech was made to create feeling of hatred against the other group and processions were also taken out after the meeting. Because of the provocative speech, persons belonging to Tablik sect were waiting for an opportunity to commit murder- According to the informant, on 11.8.1992 at about 6.00 p.m. he had gone to purchase bread from the shop at Panchhatadi Chowk. At that time, Matin Majid Hadafa pw-19 was standing near the shop of his uncle deceased khalid Gulamkadar Hadafa and two cars came from Juma Masjid side. Ten to 11 persons came out of the cars and went towards the office of Memon Baitulmal Committee. According to him, accused Nos.l and 2 were having knives and he is not sure about the weapons possessed by the other persons. Everybody gave indiscriminate blows to the deceased. It is alleged that because of provocative speech of Maulana Abdul Sattar Hamdani to commit murder of the persons of Tablik community and since Khalid Gulam Kadar was of Tablik community he was assualted. Because of fear, the informant ran away from the place immediately after assault, where he was standing. Later on he has come to know that Khalid Gulam Kadar succumbed to injuries. Mr. Jadeja, Circle Police Inspector, Dhoraji recorded the complaint and handed over the investigation to PSI Kuldip Singh of Upleta Police Station, who recorded the statements of witnesses. He has drawn the inquest Panchnama and send the dead body for Post mortem. The investigation was later on taken over by Mr. Dayalal Joshi PSI, LCB. After collecting sufficient material against the accused, he arrested the accused and submitted the charge sheet before the learned JMFC, Upleta who committed the case to the Court of Sessions for trial. The charge Exh.l was framed against all the accused. The accused denied the charges and claimed to be tried. The defence of the accused was of total denial. After considering oral as well as documentary evidence, the learned trial Judge, as stated above, convicted the five accused out of twelve. Hence, this appeal.

(3.) Learned Counsel Mr.A.D.Shah appearing for the ppellants, after having taken us. through the entire evidence on record, submits that prosecution case is based on the evidence of two eye witnesses, Iqbal Haji Habib, Pw-15/Exh.59 and Matin Majid Hadafa, PW-19/Exh.83. In the submission of learned Counsel, their evidence is not reliable inasmuch as their presence at the time of incident is unnatural. He further submits that both the said witnesses are inimical to the accused and therefore, they are interested witnesses inasmuch as they are relatives of the deceased and belong to the Tablik community. Learned Counsel submits that since the trial Court has not accepted the evidence against accuse& nos.4, 5, 6, 7, 9, 11 and 12, the evidence of other witnesses is required to be rejected and in any case, no conviction can be based relying upon their evidence. Learned. AP.P Mr.Pandya, however, supported the reasoning and the ultimate conclusion reached by the trial Court in