SABIR @ SABIR MADAM SHAUKATALI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) SEVEN accused persons came to be tried by the Learned Addl. Sessions Judge, City Civil & Sessions Court No. 3, Ahmedabad City, in Sessions Case No. 161/2001 and at the end of the trial, the appellant original accused No. 1 - Sabir @ Sabir Madam Shaukatali Reshamwala in Criminal Appeal No. 443/2004, the appellant original accused No. 2 - Javedhussain Haji Ahmed Ramjan Shaikh in Criminal Appeal No. 1917/2005, the appellant original accused No. 3 Mohmed Ramjan @ Gabbar Abdul Rehman Reshamwala in Criminal Appeal No. 1217/2005 and the appellant original accused No. 4 - Abdul Rasid @ Chunha Abdul Rahim Reshamwala in Criminal Appeal No. 1792/2008, came to be convicted by the judgment and order dated 30/12/2003 for the commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code [IPC] and each of the four appellants accused persons came to be sentenced to undergo rigorous imprisonment [RI] for life and fine of Rs. 250/ -, in default of payment of fine, RI for 15 days for the offence punishable under Section 302 read with Section 34 of the IPC. The remaining three co -accused, namely, co -accused No. 5 - Hajratkhan Joravarkhan, co -accused No. 6 - Abdulgani Abdul Raheman and co -accused No. 7 - Jakirhussain Shaukatiali Reshamwala came to be acquitted of all the ofences charged against them by the trial Court. The State did not challenge their acquittal by preferring any appeal under Section 378 of the Code of Criminal Procedure [CrPC] before this Court.

(2.) THE prosecution case, in nutshell, is that on 17/9/2000 there was election of Ahmedabad Municipal Corporation in the City of Ahmedabad. During the course of election process, so far as election in Jamalpur ward is concerned, the 4 appellants accused attempted to cast bogus votes, to which deceased Salim Haji Shafi objected and thereupon, some altercation took place. As police arrived, all the 4 appellants made their escape good. However, police apprehended one person and thereupon, at about 5.00 pm to 5.45 pm in the evening the first informant P.W. 1 Liyaqatali Allaudin and the deceased Salim decided to go and meet one Devdiwala to see that the person who was apprehended by the police can be released, they both proceeded on a scooter driven by the first informant Liyaqatali and deceased Salim was the pillion rider. When they passed Munda gate and the area called Gajipir and reached in a street called Momnavad, Navi Masjid, at thet time the 4 appellants convicted accused came behind in a rickshaw and they alighted from the rickshaw and the scooter was intercepted. The appellant original accused No. 2 - Javedhussain put a sword on the shoulder of first informant Liyaqatali and the remaining 3 appellants accused, namely accused No. 1 - Sabir, accused No. 3 - Mohmed Ramjan and accused No. 4 - Abdul Rasid armed with dagger and knives respectively started inflicting blows with their respective weapons on the body of deceased Salim. After sustaining some injuries, deceased Salim ran towards one house situated on the street, but all the 3 accused, namely accused Nos. 1, 3 and 4 chased him with their weapons and started inflicting blows with dagger and knives on the body of deceased Salim. Salim fell on the ground. It is further the case of the prosecution that at the time when the incident occurred P.W. 2 - Jakirhussain was following the scooter driven by the first informant Liyaqatali wherein deceased Salim was the pillion rider and P.W. 2 Jakirhussain witnessed the incident along with first informant Liyaqatali. First informant Liyaqatali getting afraid of the incident, ran away from the place of the incident and subsequently he came to know that deceased Salim was removed to V.S. Hospital, Ahmedabad and there he succumbed to the injuries and, therefore, First informant Liyaqatali went to V.S. Hospital, Ahmedabad and there he reported the incident to police and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. Weapons came to be seized. Necessary panchnamas were drawn in presence of panchas. After collecting the required material for the purpose of lodgement of charge -sheet, charge -sheet came to be filed in the Court of learned Metropolitan Magistrate, Ahmedabad. Since the offence was exclusively Triable by the Court of Sessions, learned Magistrate committed the case to the City Civil & Sessions Court, Ahmedabad City, which is numbered as Sessions Case No. 161 of 2001.

(3.) LEARNED Advocate Mr. Mangukia for the appellants in Criminal Appeal Nos. 443/2004 and 1792/2008 [original accused Nos. 1 and 4] and learned Advocate Mr. Shaikh for the appellant in Criminal Appeal No. 1917/2005 [original accused No. 2] and learned Advocate Mr. Agrawal for appellant in Criminal Appeal No. 1217/2005 [original accused No. 3], who is absconding, submitted that the trial Court erred in recording the conviction of aforesaid 4 accused persons. Ld. Advocate Mr. Agrawal for the absconding appellant original accused No. 3 - Mohmed Ramjan submitted that the absconding appellant accused is represented by him and he is prepared to argue out the matter and submitted that the evidence recorded by the trial Court qua the absconding appellant is inseparable from the evidence adduced by the prosecution against the remaining 3 appellants. Ld. Advocate Mr. Mangukia for the appellant original accused No. 1 in Criminal Appeal No. 443/2004 also submitted that the accused No. 1 is absconding, but he is represented by him and even the evidece qua the absconding accused is such which cannot be separated from the evidence adduced against the other appellants convicted accused. It is submitted on behalf of the appellants that the entire prosecution case rests upon the evidence of two witnesses, namely P.W. 1 Liyaqatali and P.W. 2 Jakir. Their evidence is inconsistent and contradictory. The trial Court erred in recording the conviction of the 4 appellants relying upon their evidence. Considering the evidence of P.W. 1 Liyaqatali, his unnatural and improbable conduct is clearly revealed. There is no cogent and clear evidence about the place where the incident occurred. Even the scene of offence panchnama is not admitted in evidence by exhibiting the same. The evidence regarding the identification of the appellants is shaky and untrustworthy. No Test Identification Parade [TI Parade] was arranged in presence of P.W. 1 and P.W. 2. The evidence of P.W. 1 Liyaqatali contradicts his FIR Exhibit 62 on material particulars. Whether the FIR was recorded by the police at V.S. Hospital or at Police Station is in doubt. As per the prosecution case, alleged incident took place between 5.00 and 5.45 pm., but the FIR was recorded at 9.15 pm and was registered at 9.30 pm. It is further submitted that prior to the recording of the FIR at 8.30 pm, the inquest panchnama of the dead body of deceased Salim was drawn. Thus, the inquest panchnama was drawn before the recording of the FIR. No names of any of the assailants emerge in the inquest panchnama.