SABIRMIYA AJOJMIYA BUKHARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellantoriginal accused having been sentenced to life imprisonment amongst other sentences with fine upon being found guilty for the offence punishable u/s. 302 of the Indian Penal Code (for short "IPC") and Section 135 of the Bombay Police Act (for short "BP Act") by learned Additional Sessions Judge, Jamangar, in its judgment and order dated 31th July, 2003, in Sessions case No.120 of 1999, has invoked Section 374 of the Criminal Procedure Code, 1973.

(2.) A complaint came to be lodged with the Khambhaliya Police Station on 27th April, 1999 at 3.30 a.m., complaining about commission of offence against the appellant on 27th April, 1999 at about 1 A.M. near Madina Masjid, Khambhaliya. The Complaint came to be lodged by P.W.17 Liyakatali, the son of the deceased Kasambhai. As per the contents of the complaint, at the site of the offence there was a "Tajia" procession, where the groups of Muslim community people have gathered and at that point of time P.W.5, Manoj Singh Dilipsingh Rana was carrying deceased on his motorcycle. The accused confronted deceased who was a Counselor of Nagarpalika with grievance as to his interfering in his jurisdiction i.e. the accused's jurisdiction, to which the deceased replied that the person from whom the accused was trying to get the land vacated was a poor person, he should not harass that person. It was alleged that accused was threatening that person for vacation of the land. The interference of deceased was disliked by accused. Initial heated altercation was followed by the accused pulling out a knife and inflicting various fatal blows on the person of the deceased. Consequently, the deceased succumbed to the injuries in the hospital. Amongst the injuries one cutting through the left lung and the heart of the deceased were proved to be fatal. Initially, the deceased was taken to Khambhaliya Health Centre and after primary treatment, he was referred to the hospital at Jamnagar, where, upon the admission, he came to be declared dead.

(3.) IN the crossexamination, the attempt was made to doubt the site of occurrence and visibility of the occurrence from the place where P.W. 9 is said to have been sitting i.e. outside the gate of Madina Masjid. It was sought to be argued that there was material contradiction in the testimony of P.W.9 inasmuch as in the examinationinchief, the witnesses were stated to be moving towards end of lane when the incident occurred, but in the crossexamination he admits that after taking a round of Masjid he was sitting outside the gate of the Masjid and after about 2025 minutes the alleged incident occurred. It was also sought to be argued that admittedly from the place where P.W.9 was sitting, the site of offence was not visible and therefore, in his submission P.W.9 cannot be accepted as an eye witness. On close scrutiny of the submission, we find that if the examinationinchief is read in harmony with the crossexamination of this witness, all through out, the witnesses maintained that the incident occurred while he was moving towards the end of street. It is pertinent to note that no specific question regarding the occurrence of the incident while P.W.9 was in movement was put to the witnesses. The Only question that that was asked is as to whether the scene of offence was visible from the place where he was seated. That may be true, it appears that the offence occurred when the witness was on the move as above. It was not even suggested that the offence occurred when he was sitting outside the gate of the Masjid. Thus, we do not find any substance in this argument.