JABBARBHAI NOORBHAI SAIYED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals arise out of two separate judgements rendered by the Sessions Court. However, the incident being common, the appeals have been heard together.

(2.) Briefly stated, the prosecution version was that one Majid Rehmatullah Saiyed was involved in the murder of Ismail and for which he was convicted. While serving life sentence, he was released temporarily on parole. He was at his maternal uncle Suleman Hajibhai Saiyed's place at Juhapura, Ahmedabad. At night, at about quarter to ten on 14.04.2009, said Majid Rehmatullah, his uncle Suleman Hajibhai and other family members had gone just outside their house for a cup of tea at a tea stall. At that time, in all six accused persons which included brother and son of murdered Ismail along with four other persons came there and assaulted Majid with knives, stick and base-ball bat. Majid was carried to nearby V.S. Hospital in an ambulance where he was declared dead. A charge was therefore framed at Ex. 5 in Sessions Case No. 124 of 2010 for offences punishable under sections 302, 324 read with section 34, sections 143, 145, 147, 148, 118, 201 read with section 120B of the Indian Penal Code. This Sessions Case included five accused since the sixth accused Suleman alias Sallu Karimbhai Saiyed was absconding at that time. He was later on arrested and tried in Sessions Case No. 75 of 2011 for similar charges. The learned Sessions Judge gave two separate judgements. By a judgement dated 02.09.2011, he convicted the five accused tried under Sessions Case No. 124 of 2010 for offences punishable under sections 302, 143, 147, 148, 145 read with section 34 and 120B of the Indian Penal Code and sentenced them to life imprisonment. He did not impose separate sentences for lesser offences. The learned Sessions Judge by judgement dated 24.11.2015 convicted Suleman @ Sallu for offence under section 302 of Indian Penal Code besides other offence such as under section 324, 143, 147 and 148 of the Indian Penal Code and awarded life imprisonment and fine. For the remaining offences, lesser sentences were imposed. Two separate appeals have been filed by the original accused to challenge the judgements of the Sessions Court.

(3.) We may record the gist of evidence. P.W. 1, Suleman Hajibhai Saiyed, Ex. 12 was the first informant. He deposed that he was a resident of village Sami. His sister Zohraben also lived there. Zohraben's son Majid had a fight with accused no. 1 Jabbarbhai. Majid was also convicted for murder of Ismailbhai, brother of Jabbarbhai accused no. 1. The witness himself and other accused were acquitted. However, Majid was convicted. Majid was released on furlough leave for 15 days during which time he was residing with the witness at Ahmedabad. From this stage onwards, the witness turned hostile and did not support his police statement in which apparently he had stated that he had gone out with Majid and other family members when Majid was assaulted by the accused. The witness was cross examined by the Additional Public Prosecutor. The FIR was produced at Ex. 13.