MOHAMMED SALIM IBRAHIM QURESHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Criminal Appeal No.575 of 1997 filed under Section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short) is directed against judgment dated April 24, 1997 rendered by the learned Additional Sessions Judge, Court No.12, Ahmedabad, in Sessions Case No.140 of 1996 by which the two appellants, who were original accused Nos.1 and 2, have been convicted for commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code ("IPC" for short), and each sentenced to R.I. for life and fine of Rs.1,000/- (Rupees One Thousand Only), in default R.I. for three months, for gruesome murder of Ms.Geetaben Bachubhai Rambhiya, who was engaged in the activity of rescuing cattle, which were being sent to abattoir for illegal slaughtering. Criminal Appeal No.525 of 1997 is filed by the State Government under Section 377 of the Code wherein prayer is made to impose death sentence on the appellants in Criminal Appeal No.575 of 1997 for causing diabolical ghastly murder of Ms.Geetaben Bachubhai Rambhiya in broad daylight near C.N.Vidyalaya, Ambawadi, Ahmedabad, on August 27, 1993. Criminal Appeal No.526 of 1997 is filed by the State Government under Section 378 of the Code wherein acquittal of the appellants in Criminal Appeal No.575 of 1997 for commission of offence punishable under Section 135(1) of the Bombay Police Act, 1951 ("the Act" for short) is challenged. As all the three appeals arise out of judgment dated April 24, 1997 rendered by the learned Additional Sessions Judge, Court No.12, Ahmedabad, in Sessions Case No.140 of 1996, this Court proposes to dispose them of by this common judgment.

(2.) The facts emerging from the record of the case are as under: Ms.Geetaben Bachubhai Rambhiya @ Shah was residing at 1140, Zumpadi Ni Pole, Mandvi Ni Pole, Manek Chawk, Ahmedabad, with her husband Bachubhai Shah. She was engaged in the activity of rescuing animals, which were being sent to abattoir for illegal slaughtering. She was appointed as an Honorary Inspector by Shri Akhil Bhartiya Hinsa Nivaran Sangh. She was also appointed as a Cattle Welfare Officer by Animals' Welfare Board of India, Madras. On August 27, 1993, she was patrolling in Ahmedabad City with her colleagues namely, Kansara Rakesh and Ketan Arvindbhai Shah, with a view to stopping vehicles carrying cattle, which were being sent to abattoir. When she was near Kot-Ni-Rang, Sarangpur, Ahmedabad, a loading rickshaw bearing registration No.GTH-7705 was stopped by her. On checking the rickshaw, she found that six calves were being taken to abattoir for slaughtering. On interrogation of the driver, she learnt that the cattle belonged to the appellant No.1, i.e. Mohmed Salim Ibrahim Kureshi. She took the loading rickshaw with cattle and driver to Astodia Police Station and lodged her complaint against the driver of the loading rickshaw, i.e. Rajubhai Shivabhai Raval, and another person, who was with Rajubhai, for commission of offences punishable under Sections 335(1) and 378 of the Bombay Provincial Municipal Corporations Act, 1949. After lodging of the complaint, the cattle, which were six in number, were handed over to Ms.Geetaben to be lodged at Panjarapole, Ahmedabad. Therefore, Ms.Geetaben requisitioned services of Gogaji Surajmal to carry the cattle from Astodia Police Station to Panjarapole, Ahmedabad. Accordingly, Gogaji Surajmal with his loading rickshaw went to Astodia Police Station and met Ms.Geetaben as well as one Hiteshbhai Patel, who was also working in Shri Akhil Bhartiya Hinsa Nivaran Sangh of which, Ms.Geetaben was Honorary Inspector. At Astodia Police Station, the cattle were placed in the loading rickshaw of Gogaji Surajmal. Gogaji Surajmal in the company of one policeman from Astodia Police Station proceeded towards Panjarapole, Ahmedabad whereas Ms.Geetaben and Hitesh Patel proceeded towards Panjarapole in another auto-rickshaw. On way to Panjarapole, the policeman, who was sharing the driver's seat, alighted near Town Hall. Therefore, Ms.Geetaben disengaged her rickshaw and occupied part of driver's seat of loading rickshaw of Gogaji whereas Hitesh Patel sat in the loading portion of the rickshaw. The loading rickshaw thereafter was taken to Panjarapole, Ahmedabad. At Panjarapole, Ms.Geetaben contacted the concerned officer and left the six cattle to the care of Panjarapole. At the instance of Ms.Geetaben, Gogaji and Hitesh Patel took tea from a road side Tea-Stall. Thereafter, Gogaji drove his rickshaw towards C.N.Vidyalaya. At that time, Ms.Geetaben was siting by the side of driver whereas Hitesh was occupying the loading portion of the rickshaw. Before the rickshaw could reach bus stand located near C.N.Vidyalaya, a scooter on which the two persons were sitting, overtook the rickshaw. The scooter was stopped in front of the loading rickshaw and, therefore, driver Gogaji had no option, but to halt his loading rickshaw. The moment the rickshaw was halted, the appellant No.1, who was driving the scooter, left the scooter and rushed towards Ms.Geetaben with a pistol shaped big knife in his hand. On seeing this, Ms.Geetaben, who was occupying the part of the driver's seat, came out of the rickshaw and started running for her life. The appellant No.1 chased her and overtook her within no time. The appellant No.1 thereafter inflicted blows with knife on Ms.Geetaben. Meanwhile, the pillion rider also took out a knife lying in the dickey of the scooter and both the appellants started inflicting indiscriminate blows on Ms.Geetaben. It may be stated that the place where the incident took place is a busy thoroughfare. Meanwhile, Police Constable Radheshyam Chhotelal, who was serving at Chhadavad Police Chowky attached to Ellisbridge Police Station, was going for performing his patrolling duty near Kameshwar Flats at about 2.00 p.m. He witnessed that the loading rickshaw was kept opposite the bus stand near C.N.Vidyalaya and a person was inflicting knife blows on a woman. Therefore, he rushed to the spot where the incident was taking place and challenged the person, who was inflicting the blows on Ms.Geetaben. The person, who was inflicting the blows made an attempt to escape on the scooter with another who was with him. However, Police Constable Radheshyam Chhotelal caught him by hair as a result of which, the appellant No.1 fell down and the appellant No.2 who was with the appellant No.1 started running towards Excise Chowky, Ambawadi. An attempt was made by the appellant No.1 to mount an assault on Police Constable Radheshyam, but on seeing the incident, one SRP Jawan rushed to the place in question and aimed his loaded rifle at the appellant No.1 asking him to raise his hands. The appellant No.1 had no option but to raise hands and after he had raised his hands, the bloodstained pistol shaped knife was taken away by Police Constable Radheshyam Chhotelal from him. Meanwhile Police Jamadar Jashuji Takhuji, who was present at Chhadavad Police Chowky which is quite near the place of incident, was informed by some one that one person had inflicted blows on a woman and was fleeing towards Ambawadi Excise Chowky. On learning this, Police Jamadar Jashuji Takhuji left the Police Chowky and started chasing the said person. He found that the person, who had made an attempt to flee, was caught by members of the public and was being beaten. He, therefore, caught the person and brought him to Chhadavad Police Chowky. The person caught by Police Jamadar Jashuji Takhuji is the appellant No.2 in Criminal Appeal No.575 of 1997. When Police Jamadar Jashuji Takhuji brought the appellant No.2 in Criminal Appeal No.575 of 1997 to Chhadavad Police Chowky, he found that Police Constable Radheshyam was sitting in the chowky with the appellant No.1 in Criminal Appeal No.575 of 1997. Police Constable Radheshyam Chhotelal and Police Jamadar Jashuji Takhuji brought the appellants to Ellisbridge Police Station from Chhadavad Police Chowky. Meanwhile, injured Geetaben was removed to V.S.Hospital for treatment. At V.S.Hospital, CMO Dr.Rakesh N. Patel examined injured Geetaben and declared her as brought dead. Dr.Rakesh N. Patel, in turn, informed Jamadar Jethabhai, who was discharging duties at V.S.Hospital, that injured Geetaben was brought dead. Therefore, Jamadar Jethabhai conveyed the message to PSO Mr.Sabursinh of Ellisbridge Police Station that injured Geetaben, who was brought at the hospital for treatment was declared dead by the CMO of the hospital at 14.55 hours on August 27, 1993. The information received was conveyed by PSO to PI of the Police Station, who was at his residence and on the instructions of the PI, PSI Mr.Parmar of Ellisbridge Police Station went to V.S.Hospital, Ahmedabad. Mr.Surendrasinh Gambhirsinh Gohil, who was then PI of Ellisbridge Police Station, on learning about the incident from PSO of the Police Station went to Ellisbridge Police Station. Regarding the incident of murder of deceased Geetaben, complaint was lodged by Police Constable Radheshyam Chhotelal before PI Mr.Gohil. On the basis of the complaint of Police Constable Radheshyam, offences were registered against the appellants and others. At V.S.Hospital, PSI Mr.Parmar held inquest on the dead body of the deceased and made arrangements for sending the dead body of the deceased for postmortem examination. The big knife and another knife produced by the appellants which were bloodstained were seized under a panchnama. Under the same panchnama, condition of person of each of the appellants was noted and clothes put on by them, which were found to be bloodstained, were also seized. The said panchnama was drawn on August 27, 1993 between 17.15 hours and 18.15 hours. As the appellants had sustained minor injuries, they were referred to V.S.Hospital for medical examination. The Investigating Officer also drew the panchnama of place of incident. At the place of incident, a hunter was found lying, which was seized. The scooter, on which the appellants had come and intercepted the rickshaw in which the deceased was travelling, was also seized. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory for analysis. The Investigating Officer recorded statements of those persons, who were supposed to be conversant with the facts of the case. Witness Gogaji was not available at his house as he had left his house out of fear. The Investigating Officer could contact him only after six days of the day of the incident. His statement was recorded and a yadi was sent to Executive Magistrate Mr.Parmar to hold identification parade. Accordingly, identification parade was held on September 3, 1993 where witness Gogaji identified the two appellants as assailants of deceased Geetaben. The investigation further revealed that a conspiracy was hatched by the appellants with four others, i.e. (1) Iqbal Yakubbhai Kureshi @ Haji Iqbal; (2) Gulam Gosh @ Gosiyo Langado Abdulrasheed Kureshi; (3) Mohmed Iqbal @ Iqbal Chinabhai Mohmed Hanif Kureshi; (4) Salim Ahmed @ Babakhan Ibrahimbhai Kureshi, to kill deceased Geetaben and, therefore, they were also arrested. On completion of investigation, the appellants and four others were chargesheeted in the Court of learned Metropolitan Magistrate Court No.15, Ahmedabad, for commission of offences punishable under Section 302 read with Section 120B IPC and Section 135(1) of the Act. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Ahmedabad City, for trial where it was numbered as Sessions Case No.140 of 1996.

(3.) The learned Additional Sessions Judge, Court No.12, Ahmedabad City, to whom the case was made over for trial, framed necessary charge against the appellants and four other accused at Exh.9. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) Dr.Dineshbhai Savjibhai Chandana as P.W.-1 at Exh.17; (2) complainant, i.e. Police Constable Radheshyam Chhotelal as P.W.-2 at Exh.21; (3) Dr.Ravindra Shrikrishna Bhise as P.W.-3 at Exh.23; (4) eye witness Police Jamadar Jashuji Takhuji as P.W.-4 at Exh.25; (5) eye witness Gogaji Surajmal as P.W.-5 at Exh.27; (6) Nizamuddin Gyasuddin Shaikh as P.W.-6 at Exh.29; (7) Police Constable Jethabhai Khengarbhai as P.W.-7 at Exh.31; (8) Labour Contractor Haribhai Govindbhai as P.W.-8 as Exh.33; (9) Dineshbhai Laljibhai as P.W.-9 at Exh.35; (10) Babulal Mohanlal as P.W.-10 at Exh.37; (11) Dineshbhai Bhavanbhai as P.W.-11 at Exh.39; (12) Saburbhai Gambhirbhai as P.W.-12 at Exh.42; (13) Investigating Officer i.e. PI Mr.Surendrasinh Gambhirsinh Gohil as P.W.-13 at Exh.45; and (14) Executive Magistrate Mr.Jageeshbhai Sunderlal Parmar as P.W.-14 at Exh.50, to prove its case against the appellants and other accused. The prosecution also produced documentary evidence such as; inquest report at Exh.14; panchnama indicating seizure of the clothes of the deceased at Exh.15; injury certificate of Police Constable Radheshyam Chhotelal Lahori issued by Dr.Chandana at Exh.18; injury certificate of the appellant No.2 in Criminal Appeal No.575 issued by Dr.Chandana at Exh.19; certificate indicating injuries sustained by the appellant No.1 in Criminal Appeal No.575 of 1997 issued by Dr.Chandana at Exh.20; complaint lodged by police constable Radheshyam at Exh.22; postmortem report prepared by Dr.Bhise at Exh.24; extract of entry made at Ellisbridge Police Station pursuant to the information conveyed by Dr.Rakesh N. Patel to Police Jamadar Jethabhai at Exh.32; panchnama of place of incident at Exh.34; panchnama of collection of blood samples of the two appellants at Exh.36; panchnama indicating arrest of the appellants and seizure of blood-stained weapons produced by them as well as their bloodstained clothes at Exh.38; panchnama indicating seizure of the bloodstained clothes of Hitesh at Exh.40; extract of entry made in Police station diary pursuant to the information sent by Dr.Patel at Exh.43, notification issued by the competent authority under the provisions of Section 37 of the Act at Exh.44; report of FSL at Exh.48; panchnama indicating that identification parade was held by Executive Magistrate Mr.Parmar and that the appellants were identified by witness Gogaji as assailants of the deceased at Exh.52, etc. in support of its case against the appellants and others.