STATE OF GUJARAT Vs. MAHMAD SALIM VAJIR SHAIKH

JUDGEMENT

(1.) The State has filed this appeal against the judgment and order acquittal dated dated 17th October, 2005 passed by the learned Presiding Officer, Fast Track Court No.2, Valsad, in Sessions Case No.31 of 2004.

(2.) The present case is encircled around the fact that one Manoj Shitalprasad Rajput, a person originally belonging to Uttar Pradesh, came to Umargam since about eight years and was staying with his parents. The complainant Manoj Shitalprasad used to ply tempo and out of the earnings was feeding his family. On 30.11.2003 at Railway Station Road, one Mr. Jayeshbhai Patel had arranged 'Satyanarayan pooja' where the complainant Manoj Shitalprasad went along with his friends and at about 7.30 p.m. when 'pooja' ceremony got over, they took 'prasad' and thereafter met several persons over there. Amongst them, there were persons named Ketan, who was working in Umargam factory, Kushal, who was residing at Daheri and was working in Boiler factory and Jay @ Guddu, who was residing at Dalwad. Kushal, who originally belonged to Bombay and running a Gymkhana outside the Swapnalok Society came with his brother-Tanaji. It is further asserted by the complainant that Tanaji informed Kushal that accused Nos.1 and 2 were headstrong persons and were refusing their customers to park their vehicle who are coming daily in Gymkhana and therefore, Tanaji requested his friend to persuade these accused to allow their clients to park the vehicle and therefore, all four i.e. complainant, Kushal, Ketan and Jay went to Gymkhana where three Muslim boys, accused No.1 and his brother Naresh Kodi were present. At that time, issue regarding parking of vehicle was deliberated and suddenly Salim and Mohmad got enraged and started quarreling by using rough language resultantly one Surya Chacha, who was residing near Janakpuri came there along with other three persons and requested these persons not to quarrel and leave the place. While leaving the place, Salim gave threat that they would take revenge but the complainant and other persons did not seriously notice such threat and parked the motor cycle near the flat of Surya Chacha and they went to the shop of Chiku Kota at about 8 P.m. The complainant further asserted that at about 10 p.m., while he was going on his bullet motor cycle and reached to the ground floor of Swapnalok Society, Surya Chacha was taking his food where the complainant did not take the food and thereafter left the place. Since there was a desire to smoke, he was smoking at about 10.45 p.m. and at that time, on southern side, some 4-5 persons were talking. At that time, Salim and his brother Mohmed, Naresh and three other Muslim boys came with iron rod, sticks, knife and sword and they proceeded to the place of Surya Chacha and assaulted him with knife and sword. They also inflicted him pipe blows and stick blows. The persons standing nearby the Society and vicinity ran away from the scene of offence and Surya Chacha shouted for help to intercept and to save Surya Chacha. The present complainant has specifically asserted in the complaint that Muslim boys, who came there with iron pipes, attacked and caused serious injuries to Surya Chacha who ultimately succumbed to the injuries. On account of this incident, a complaint came to be filed before Umargam Police Station which was registered as C.R.No.I-281 of 20003 for the offence punishable under sections 143, 147, 149 and 302 of IPC. <FRM>JUDGEMENT_223_LAWS(GJH)2_2017_1.html</FRM> <FRM>JUDGEMENT_223_LAWS(GJH)2_2017_2.html</FRM>

(3.) Learned APP, Mr. Chintan Dave, representiang the State has vehemently contended that the respondents accused have committed a gruesome murder of Surya Chacha and he died on account of injuries having been caused by these respondents accused and therefore, since the offence has been committed by all the respondents accused in connivance with each other, the order of acquittal deserves to be interfered with. Mr. Dave has further contended that there is a specific role attributed to each of the accused, so much so that these accused persons have been identified by the injured witness. Salim was identified with sword, Mohmed was identified with knife and Naresh and accused No.4 were identified with iron rods and all these persons have played a specific role in the commission of crime and therefore, Mr. Dave has contended that there is a serious error committed by the learned trial Judge in acquitting the accused persons. Mr. Dave has further drawn the attention to evidence of some of the witnesses who have deposed before the Court and submitted that two things have been found from the place of incident namely, iron rod and chappal and the panch witness Mr. Dinesh has also specifically established the recovery. Mr. Dave has pointed out that as per the medical evidence, injuries were sufficient enough to cause death and therefore, the offence is clearly made out against all the respondents accused and resultantly the order of acquittal is required to be corrected. Mr. Dave has drawn the attention to the evidence of panch witness Hemant Nayak who has been a party to the recovery of weapons and a specific panchnama has also been drawn and has indicated that who has made the discovery of what and therefore, when this account of specific evidence is available on record, it was not open for the learned trial Judge not to appreciate such evidence which is cogently substantiating the case of the prosecution. Mr.Dave has further drawn the attention that the recovery which has been effected has not only been established but serological report/FSL report has suggested that bloodstains, which have also been found on the weapons, are of the blood group of the deceased and therefore, when FSL report co-relates the case of the prosecution which has indicated that weapons, which have been used, have been found with bloodstains, there was hardly any circumstance available to give a benefit of doubt to the respondents accused. Mr. Dave has further pointed out that the complainant himself is an eye witness and therefore, his version normally is to be given weightage over other evidence. In these background of facts, Mr. Dave has pointed out that the order suffers from non-application of mind rather it can be said to be a perverse to the record and therefore, the conclusion of granting benefit of doubt is required to be dislodged and by reversing the same, appropriate punishment is to be inflicted upon. Mr. Dave has further pointed out that these 4-5 persons, who were named and identified, were residing in the nearby vicinity and more particularly when the incident has occurred, the lights were on and therefore, there was hardly any circumstance which may lead to a doubt about the identity of these witnesses and therefore, when every material on record is connecting the link with the respondents accused to the commission of crime, the order of acquittal is not just and proper. Mr. Dave has then invited the attention of this Court to the post mortem report coupled with the cause of death and thereby submitted that injuries which are reflected on the record are co-related to the case of the prosecution and therefore, the finding arrived at by the learned trial Judge is perverse to the record. It has also been pointed out that when Salim, Mohmad and Naresh residing in nearby vicinity have been identified, there was hardly any need for test identification parade and therefore, simply because test identification parade was not conducted by investigating machinery, no reasonable doubt can be given to the accused persons and therefore, considering these overall circumstances available on record, the order passed by the learned trial Judge deserves to be interfered with and requires to be reversed. He has then pointed out by referring to the circumstances narrated in paragraph No.11 of the judgment and has submitted that crucial eye witness even if solitary witness when supporting the case of the prosecution, a careful consideration ought to have been given by the learned trial Judge and having not done so, it is desirable in the interest of justice not to allow this order to be sustainable in the eye of law and ultimately requested this Court to allow this appeal filed by the State by reversing an order of acquittal and inflict appropriate punishment so as to meet with the ends of justice.