SATTAR ABDUL GAFUR SIPAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant is one of the three accused who were charge-sheeted for the offence punishable under Section 302 I. P. Code for committing the murder of Promod Ramshanker Sharma at about 12.00 noon on 7/08/1982 nearby Dhobighat Dudheshwar Ahmedabad. Promod Sharma and witnesses Alarakha Mithamiyan and Babubhai Mohmedbhai Malek knew each other. Promod Sharma was under the slight influence of liquor. All the three proposed to enjoy liquor at Dhobighat and proceeded in a rickshaw from Kalupur to Dhobighat. They left the rickshaw at some distance from Dhobighat. When they were going towards Dhobighat present appellant-Sattar Abdul Sipad and his associates Ramesh Mulshanker Govindlal and Babu Johur Saiyed met them and asked Promod Sharma to entertain them with liquor but Promod refused and there was some exchange of words. After that Promod and his associates went in search of liquor but they could not get any liquor. When they were returning the appellant Sattar Abdul Gafur and his two associates were standing near public urinal near the cross roads at Dhobighat and when they came Babu Johur Ramesh Mulshanker Govindlal and appellant Sattar Abdul Gafur caught hands of Promod; Babu Johur inflicted gupti blow and Ramesh inflicted knife blows. Promod in injured condition went to the nearby garage and tried to sit on the chair but collapsed. Meanwhile both the eye-witnesses rushed to Dudheshwar Police Chowky and informed the police station officer about the incident. Dariapur Police Station was informed by the Police Station In-charge of Dudheshwar Police Chowki. Mean while Babubhai Ganeshbhai Marwadi owner of the garage also rushed to Dudheshwar Police Chowki and informed that one bearded man came to his garage in bleeding condition and died immediately. That was recorded in the police station diary at 12.15 p.m. Thereafter Police Inspector Harjeetsinh Kishansinh Sohel of Dariapur Police Chowky immediately rushed to the Police Chowiki and the complaint of Alarakha Mithanmiyan was recorded. Co-accused Ramesh and Babu Johur were arrested but the present appellant Sattar Abdul Gafur was absconding. Co-accused Ramesh and Babu Johur were tried in a sessions case and Babu Johur was convicted for the offence punishable under Section 302 I. P. Code and Ramesh was convicted for the offence punishable under Section 304 Part II I.P. Code read with Section 34 I. P. Code and Section 324 I. P. Code. Babu Johur preferred Criminal Appeal No. 742 of 1983 and Ramesh Mulshanker Govindlal preferred Criminal Appeal No. 501 of 1983 and this Court confirmed the conviction of Babu Johur but partly allowed the Appeal of Ramesh Govindlal and convicted him for the offence punishable under Section 326 I.P.Code read with Section 34 I. P. Code and Section 135(1) Bombay Police Act were confirmed. Considering the fact that Ramesh had inflicted minor injury this Court held that his intention was not to commit murder but to cause grievous hurt. Accordingly he was convicted for the offence punishable under Section 326 read with Section 34 I. P. Code. By the time he had already undergone the sentence of 6 years 2 months and 18 days considering the remissions etc.

(2.) Appellant Sattar Abdul Gafur Sipad was absconding and was arrested by witness Police Constable Jiluji on 14/08/1984 As he was absconding he could not be tried alongwith other two accused and was separately tried. The learned City Sessions Judge Ahmedabad convicted the appellant for the offence punishable under Section 302 read with Section 109 I. P. Code and sentenced him to imprisonment for life.

(3.) On scrutinising and considering minutely the evidence of witness Alarakha and Babubhai Malek we agree with the finding by the learned trial Judge that the appellant Sattar Abdul caught the right hand of Promod and co-accused Babu Johur caused fatal injury with Gupti and Ramesh caused hurt with knife. The evidence of witnesses Alarakha and Babubhai Malek is that both of them and Promod met at Kalupur and at that time Promod was under slight influence of liquor. They therefore proposed to go for enjoying liquor fiest (sic) and therefore went to Dudheshwar in search of liquor and when they reached nearby they left the rickshaw at cross-road at Dhobighat and proceeded on foot to Motigali at Dudheshwar. Then they were proceeding in Motigali the appellant Sattar Abdul and his two associates Babu Johur and Ramesh met them. Alarakha knew all those three persons for about four years prior to the incident. All of the three persons came to them and and told Promod to serve the liquor but Promod inquired the reason for which he should serve the liquor. All the three insisted for the same and there was exchange of some words between the appellant his two associates and Promod. Alarakha and Babubhai Malek intervened and the appellant and his two associates left that place. Promod and both the witnesses went further inside the gali and inquire for the liquor but they failed to get the same and therefore returned. At the entrance of the gali nearby the public urinal the appellant and his two associates were standing. Babu Johur was armed with weapon like gupti and Ramesh was armed with knife. Promod was proceeding 10 to 15 paces ahead from both the witnesses. As they came out from the entrance of the gali Ramesh Appellant Sattar Adbul and Babu Johur rushed towards Promod and appellant Sattar caught Promod Babu Johur inflicted gupti blow and Ramesh inflicted injury with knife. Both the witnesses immediately rushed to Dudheshwar Police Chowki which is at a distance of about 300 to 400 paces from the place of incident shouting to help as they were afraid that they may also be caused injuries and informed the police that the accused were causing injuries to Promod. Mean while Babubhai Ganeshbhai Marwadi owner of the garage also came to the police chowki and stated that a person having beard was lying at his garage and had expired. After that both the witnesses accompanied the police to the place of incident which is also nearby the garage of Babubhai Ganeshbhai. Meanwhile many people had collected there. Police then recorded complaint of Alarakha. Both the witnesses have identified the appellant Satar Abdul. In the cross-examination Alarakha stated that all the three assailants ran simultaneously and the appellant Sattar Abdul caught Promod and immediately his two associates Babu Johur and Ramesh caused injuries with Gupti and knife. Alarakha stated that the appellant Sattar Abdul had caught both the hands of Promod. He denied that the appellant had caught only the right hand of Promod but in his police statement he stated that appellant had caught right hand of Promod and that fact is established by the evidence of Police Inspector H. K. Sohal. Similarly witness Babu Malek also stated that the appellant had caught Promod but it is established that he has stated in the police statement that appellant had caught right hand of Promod. Both the witnesses are natural witnesses to the incident and immediately within minutes after the incident informed the police about the incident. As such therefore there is no reason to disbelieve their evidence. From the evidence of both the witnesses therefore it should be held that the present appellant Sattar Abdul and his two associates rushed to Promod when both the witnesses and Promod came out of Gali and the appellant caught right hand of Promod; Babu Johur inflicted one blow with gupti and Ramesh inflicted minor injury by knife.