Gujarat High Court
State Of Gujarat vs Abdul Rauf @ Rauf Abdulkadar ... on 21 April, 2023
Bench: Umesh A. Trivedi
R/CR.A/408/2002 JUDGMENT DATED: 21/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 408 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
======================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
STATE OF GUJARAT
Versus
ABDUL RAUF @ RAUF ABDULKADAR SHAIKH
======================================
Appearance:
MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR RUSHABH R SHAH(5314) for the
Opponent(s)/Respondent(s) No. 1
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R/CR.A/408/2002 JUDGMENT DATED: 21/04/2023
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 21/04/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
CRIMINAL APPEAL No.408 of 2002
[1.0] This Appeal under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'the
Code') is filed by the State against accused no.1 alone
challenging the judgment and order passed by the Additional
Sessions Judge, City Sessions Court No.4, Ahmedabad dated
30.10.2001 rendered in Sessions Case No.240 of 1996 with
Sessions Case No.283 of 1997 whereby the respondent -
accused alongwith two other accused were tried in the same
case though Sessions Cases were different. As respondent no.3
shown in the judgment came to be arrested subsequent to the
accused in Sessions Case No.240 of 1996 were arrested,
however, since both the Sessions Cases arise out of the same
case, they were tried jointly and the accused were shown in
seriatim under common judgment and order passed in both
Sessions Cases jointly.
[2.0] The accused were tried for an offence registered
under Sections 302 and 120 B of the Indian Penal Code as also
under Sections 25(1-AA) and 27(3) of the Arms Act, 1959.
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They were also tried for the offence under Section 135(1) of
the Bombay Police Act, 1951. The FIR for the said offence
came to be registered as I-C.R. No. 34 of 1995 with Dariapur
Police Station and in all four accused were involved in the said
offence as revealed during the course of investigation.
However, accused no.1 - Abdul Rauf @ Rauf Abdulkadar
Shaikh against whom this Appeal is preferred and accused no.2
- Jehangir Marajban Patel were arrested and charge-sheet
came to be filed against them vide Criminal Case No.610 of
1996 before the competent Court, which culminated into
Sessions Case No.240 of 1996. However, other two accused
i.e. accused no.3 in this case Gulam Mohamad @ Gulal @ Arif
A. Shaikh and one Abdul Latif were shown as accused in
column No.2 in the charge-sheet submitted against accused
no.1. However, it appears that Abdul Latif expired before
framing of charge in the second Sessions Case, which was filed
against the accused no.3 - Gulam Mohamad @ Gulal. The said
charge came to be framed on 08.12.1997 in Sessions Case
No.283 of 1997 against accused no.3 shown in the judgment.
In short, for the trial into the offence registered, three accused
were tried, may be under different Sessions Case numbers.
They were jointly tried and ordered to be acquitted vide
impugned judgment and order passed by the Sessions Court.
All the three accused were tried for the offence of hatching
conspiracy to commit murder of Mohamad Hanif @ Majdi
Mohamadbhai on a suspicion that he is providing information
in respect of their misdeeds to the police, which caused
hindrance to their activities. As per the prosecution case,
despite the deceased - Mohamad Hanif @ Majdi Mohamadbhai
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was persuaded not to cause hindrance to their activities, he
did not stop, and therefore, he was being eliminated and for
which the accused faced the charge, as aforesaid.
[2.1] As per the case of the prosecution, all the accused
hatched conspiracy to kill Mohamad Hanif @ Majdi
Mohamadbhai as he became informer of the police giving
information of the activities of them and in execution of their
conspiracy, on 17.05.1995, the sole respondent herein is said
to have fired gunshots between 5:30 a.m. to 8:30 a.m., while
the deceased - Mohamad Hanif @ Majdi Mohamadbhai was
passing on his bicycle from Shakrkhan Masjid situated in
Dariapur area, from the revolver illegally procured and
provided to him for ultimate murder of the deceased. It is
further the case of the prosecution that accused no.2 -
Jehangir Marajban Patel procured the revolvers and cartridges
from Delhi and he provided the same to the deceased accused
- Abdul Latif, who in turn provided two revolvers and
ammunition to accused no.3 - Gulam Mohamad @ Gulal and
ultimately he provided the said arms and ammunition to the
respondent - accused - Abdul Rauf @ Rauf Abdulkadar Shaikh.
It is further the case of the prosecution that pursuant to the
bullets fired, possessed by the respondent - accused,
deceased received serious injuries and died on the spot.
Thereby it is alleged that all the accused in pursuance to the
conspiracy hatched by them committed murder of the
deceased - Mohamad Hanif @ Majdi Mohamadbhai.
[2.3] On registration of FIR and investigation being
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carried on, it was transferred to three different Police Officers
of Anti Terrorist Squad, who investigated into the same and
ultimately two separate charge-sheets came to be filed against
three accused, who were tried.
[2.4] Since the case registered against the accused was
exclusively triable by the Court of Sessions, learned
Magistrate, before whom charge-sheets came to be filed,
committed it to the Court of Sessions in accordance with the
provisions of 'the Code'. Both the cases committed to the
Court of Sessions came to be numbered as aforesaid and
charge against the first two accused and accused no.3 came to
be framed on different dates, as aforesaid, but since trial had
not begun, both the cases were tried together arising from the
same case. To prove the case against the accused,
prosecution examined in all 17 witnesses, produced and
proved certain documents and after hearing the arguments of
both the sides, the learned Judge has, on appreciation of
evidence, led before it, acquitted all the accused of the
charges levelled against them by the aforesaid judgment and
order.
[2.5] Though all the accused were tried for hatching
conspiracy to kill the deceased - Mohamad Hanif @ Majdi
Mohamadbhai, surprisingly State has preferred this Appeal,
challenging the order of acquittal passed in favour of all the
accused, against only the respondent, who was accused no.1
in the case.
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[3.0] Heard Ms. Jirga Jhaveri, learned Additional Public
Prosecutor for the appellant - State as also Mr. Rushabh Shah,
learned advocate representing the respondent - accused.
[4.0] Ms. Jirga Jhaveri, learned Additional Public
Prosecutor, has taken us through the entire evidence led
before the trial Court as also the documents produced and
proved to submit that the order of acquittal recorded by the
learned Judge is erroneous, illegal and against the evidence on
record. She has further submitted that the prosecution by
leading cogent and reliable evidence proved the guilt of the
accused, and therefore, the order of acquittal recorded by the
learned Judge is unjust and uncalled for. Stressing much on the
motive that the deceased was providing information with
regard to the illegal activities of the accused and because of
that suspicion over him, despite several warnings through
other persons, for which evidence is led, the deceased came to
be eliminated. For the said act, as per her submission, all the
accused entered into a conspiracy and for that purpose
accused no.2 - Jehangir Marajban Patel was also involved, who
procured arms and ammunition from Delhi, which was
provided to the deceased - accused - Abdul Latif, who in turn
provided it to respondent - accused through accused no.3.
She has further submitted that as per the evidence led before
the Court, the revolvers as also the live cartridges were
recovered from the house of the respondent - accused and the
bullets that were recovered from the dead body of the
deceased prove that the fire arm, which was recovered from
the house of the respondent - accused, is used for committing
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murder of the deceased - Mohamad Hanif @ Majdi
Mohamadbhai for which no explanation is offered by the
respondent - accused that how and in what manner the arms
and ammunition came to his possession and was recovered
from his house. She has further submitted that though for the
weapons and ammunition, discovery panchnama was carried
out by the Investigating Officer, may be one panchnama for
three different offences, it was at the disclosure of weapons
concealed used for commission of offence by the accused but
the said disclosure is not believed in other cases on the ground
that there is no disclosure statement made by the accused in
respect of authorship of the concealment of the weapon and
that should not come in the way of the Court to hold that
though there may not be disclosure statement and discovery
of weapons at the instance of the respondent - accused but
surely it can be treated to be a recovery of fire arms and
ammunition from the house of the respondent - accused,
which is used in commission of offence. The use of weapon in
commission of present offence is proved through opinion of
ballistics expert also. She has further submitted that while
panchnama was being drawn for recovery of the weapons and
the ammunition from the house of the respondent, wife of the
respondent - Suhanabanu was present there. She has further
submitted that there is no denial to the said fact that
Suhanabanu, who was found inside the house from where the
weapons and ammunition are recovered, is not the wife of the
respondent - accused. She has further submitted that, as
such, during the course of cross examination of the
Investigating Officer, who carried out the said panchnama,
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document in the nature of Municipal Corporation Tax Bill of the
said property from where arms and ammunition is recovered is
produced and at the instance of the accused, it reflected that
the house stood in the name of the father of the respondent -
accused. Therefore, she has submitted that these two most
relevant and important circumstances are not denied and on
the contrary brought on record by the respondent - accused
could not have been ignored by the learned Judge to establish
that the fire arms used in commission of offence is recovered
from the house of the respondent - accused by which the
deceased - Mohamad Hanif @ Majdi Mohamadbhai came to be
eliminated. According to her submission, it is then for the
accused to explain how he came in possession or at least in his
house how all those fire arms and ammunitions were found.
In absence thereof, according to the submission of learned
Additional Public Prosecutor, coupled with the motive
established and use of fire arms being corroborated by the
ballistics expert's opinion, it shall be treated as a complete
chain of circumstance, if not of the conspiracy to kill the
deceased but at least killing of the deceased, that too, by the
respondent - accused. Ultimately, it is submitted that the only
view possible from the available evidence on record is to
convict the accused, and therefore, the impugned judgment
and order passed by the learned Judge requires to be
interfered with, and therefore, she has submitted that the
Appeal be allowed and the respondent - accused be suitably
convicted and punished.
[4.1] Ms. Jirga Jhaveri, learned Additional Public
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Prosecutor, submitted that one more circumstance appearing
against the respondent - accused is in the form of extra
judicial confession made by him before P.W. 9 before whom he
confessed to have eliminated the deceased at the instance of
Abdul Latif. He has further submitted that though the said
witness is declared hostile, the Executive Magistrate, who
recorded the statement under Section 164 of 'the Code' came
to be examined before the Court as P.W. 8 - Kashiram Joitaram
Patel, who proved the statement made by P.W. 9 Rashid
Husein A. Razak Shaikh. Therefore, she has submitted that
even if independently extra judicial confession can be treated
to be a weak piece of evidence, it can surely be utilized as
corroborative piece of evidence. Hence, it is submitted that
the Appeal be allowed.
[5.0] As against that, Mr. Rushabh Shah, learned
advocate for the respondent vehemently submitted that
though the prosecution has come out with the case of hatching
conspiracy in between four accused to kill the deceased -
Mohamad Hanif @ Majdi Mohamadbhai, filing of Appeal against
an order of acquittal against only one leads to a presumption
that the State has accepted absence of conspiracy in between
the accused, and therefore, when he alone is being proceeded
under this Appeal, there cannot be any charge of conspiracy
proved against him alone. He has further submitted that while
dealing with an acquittal appeal, unless this Court comes to a
conclusion that the findings of trial acquitting the accused
were palpably wrong, manifestly erroneous or demonstrably
unsustainable, no interference is called for. He further
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submitted that in absence of such satisfaction, the Court of
Appeal should not interfere with a well reasoned order passed
by the Sessions Judge.
[5.1] Drawing attention of the Court to the deposition of
almost all the witnesses, he submitted that since there are no
eye witnesses, the case rests only on circumstantial evidence.
There has to be a complete chain established for irresistible
conclusion that none else but the accused alone is the author
of the crime. He has further submitted that in a case of direct
evidence, existence of motive may be irrelevant, however, in a
case based on circumstantial evidence, existence and proof of
motive is most relevant. He has further submitted that the
prosecution has miserably failed to lead evidence even on the
motive pleaded by it. For proof of motive, what prosecution
has relied on is the deposition of two witnesses. According to
the submission of the learned advocate for the respondent,
P.W 2 - Usmanbhai Ahmedbhai Malik is the neighbor of the
deceased and P.W. 3 - Rasulbhai Shaikh is the brother of the
deceased. However, from the deposition of both these
witnesses, it appears that they were called by one Sabbir
Hussainbhai, that too, before 3 or 4 years of the incident and
informed that deceased was interfering in the business and
creating hurdles for them and he provides information to the
police, and therefore, he be persuaded not to do the same.
Drawing attention of the Court to this evidence led through the
aforesaid two witnesses, it is submitted that what connection
Sabbir Husseinbai has with the accused, who has told these
two witnesses to persuade the deceased who was acting as
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informer, has not been brought on record by the prosecution.
In absence of such evidence, motive as pleaded by the
prosecution can never be established. He has further
submitted that even presuming without admitting that
Sabbirbhai referred to in the deposition of both the witnesses
may be a gang man of the respondent - accused, the said
factum, as deposed to by them, had occurred three to four
years prior to the incident. He has further submitted that the
prosecution has not brought any evidence to the effect that in
fact the deceased acted as an informer and really created any
hurdle in recent past so as to eliminate him. Except the
deposition of these two witnesses, according to his submission,
no further evidence is led, to prove the motive as pleaded by
the prosecution. Considering the nature of evidence led, he
has submitted that the first link in the chain is missing, and
therefore, even if any other circumstance may point towards
the guilt of the respondent - accused, this Court may not
interfere in the decision of the Sessions Court, that too, in an
acquittal Appeal.
[5.2] He has very vehemently submitted that since
discovery of weapons and ammunitions, at the instance of the
respondent - accused, is not believed by the Court for
recording an order of acquittal in another case of murder
where according to the case of the prosecution very same
weapon was used as also in another case the said evidence
was believed and accused came to be convicted, in an Appeal
preferred by the respondent and even the said evidence on
disclosure is disbelieved by the Court, he is ordered to be
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acquitted by the High Court. In that circumstances, he has
submitted that the so called discovery panchnama pressed
into service by the prosecution to establish the main chain of
events is also to be discarded. Reading the judgment of
acquittal recorded by the Court in a conviction appeal
preferred by the accused and another case wherein the very
same panchnama is relied on by the prosecution, he submitted
that there appears no disclosure statement made by the
accused based on which an article i.e. weapon is discovered,
and therefore, he has submitted that it cannot be relied on as
a piece of evidence against the respondent - accused in a case
based on circumstantial evidence, more particularly, when
those Panch Witnesses, who were associated for drawing that
panchnama, have not supported the case of the prosecution.
He has further submitted that except bare words of one of the
Police Officer that Suhanabanu is the wife of the respondent -
accused, prosecution has not led any evidence to establish
that fact. Therefore, even if Suhanabanu is found inside the
house from where the weapons and ammunitions are
recovered cannot be said to be possessed by the respondent -
accused. He has further submitted that the fact that the
Municipal Corporation Tax Bill contains no name of the
respondent - accused, it cannot be concluded that he is the
owner as also an occupier of the said house. He has
strenuously urged that in absence of any evidence brought on
record that except the respondent - accused and his wife, no
one resides in the said premises from where the arms and
ammunition are found, it cannot be successfully pleaded by
the prosecution that two revolvers and 27 cartridges were
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found /recovered from the house of the respondent - accused.
[5.3] He has further submitted that except these
aforesaid very very weak evidence even if it is presumed to be
against the respondent - accused, the prosecution has
miserably failed to bring home the guilt of the accused, and
therefore, the learned Judge has rightly acquitted not only the
respondent but other accused too, and therefore, he has
submitted that this Court may not interfere with well reasoned
judgment and order of acquittal recorded by the trial Court and
Appeal be dismissed.
[5.4] He has further submitted that the alleged offence
took place on 17.09.1995 whereas the discovery panchnama in
another case came to be executed on 14.11.1995, the day on
which even the respondent was not arrested as an accused in
the present case. The respondent - accused came to be
arrested on 22.12.1995, that too, much after the so called
discovery of the weapons and ammunitions made by the Police
Officer in connection with other offence and he has come out
with the case that the very same weapon is used by the
respondent - accused in commission of the present offence
too. He has further submitted that if that is the case, on
disclosure statement of such weapons and ammunition
concealed by him and even based on statement of the
accused, he could have been immediately arrested in
connection with the present offence, if at all there is any other
material found against him, and therefore, he has submitted
that it is only because no accused could be arrested in the
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present offence, with the arrest of him in connection with other
offence, he has been shown as an accused in this case based
solely on the opinion of the ballistics expert, which is not
sufficient to convict the accused, and therefore, the order of
acquittal is rightly recorded by the learned Judge.
[5.5] Mr. Rushabh Shah, learned advocate has
strenuously urged that evidence in the form of extra judicial
confession pleaded by the prosecution through witness P.W. 9
Rashid Husein @ Dollar Abdul Razak Shaikh, who was declared
hostile to the case of the prosecution can never be relied on
for the reason that once he has not supported the case of the
prosecution even if his statement under Section 164 of 'the
Code' is recorded, which is not a substantive evidence should
be used for the purpose of either corroboration or contradiction
even if the Magistrate who recorded the same is examined
before the Court, he cannot prove the contents of the said
statement. He has further submitted that even presuming that
there exists statement under Section 164 of 'the Code', the
said statement of witness, does not contain extra judicial
confession in a statement of very said witness recorded on
20.03.1996 i.e. nearly after 10 months of the commission of
offence and approximately 3 months after the arrest of the
present respondent - accused. Surprisingly, according to the
submission of the learned advocate for the respondent, in the
first statement recorded on 20.03.1996, theory of no such
extra judicial confession made by respondent - accused is
propounded by the prosecution. Drawing attention of the
Court to deposition of P.W. 15 Gopinath Ramchandra Dabekar,
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who was the then Police Inspector serving with Anti Terrorist
Squad on deputation, who was entrusted the investigation of
this very case deposed to before the Court that in a statement
dated 06.04.1996 Rashid Husein @ Dollar Abdul Razak Shaikh
has stated before him about the extra judicial confession being
made by the respondent - accused having eliminated the
deceased -Mohamad Hanif @ Majdi Mohamadbhai at the
instance of Abdul Latif, and therefore, he has submitted that if
at all any such extra judicial confession would have been made
when the investigating authority was clueless about the author
of the crime, witness would have disclosed the said extra
judicial confession before the police voluntarily and
immediately. Not only that, according to the submission of the
learned advocate for the respondent, in the first statement
recorded on 20.03.1996, no theory of such extra judicial
confession is mentioned by the very said witness, which
creates doubt in respect of the genuineness of the
investigation itself, and therefore, he has submitted that even
said circumstance is also not believable at all. Hence, it is
submitted that the Appeal be dismissed.
[6.0] Having heard the learned Additional Public
Prosecutor as also learned advocate for the respondent -
accused, it emerges that this case is full of mysteries. On
perusal of the evidence as also the impugned judgment and
order, it appears that the investigation into the present offence
appears to be not up to the mark and satisfactory. According
to the case of the prosecution, the incident occurred between
5:30 to 8:30 a.m. on 17.05.1995 just adjacent to the mosque
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surrounded by residential locality. For committing murder of
the deceased by fire arm, if not more, 6 bullets were found
from the body of the deceased and no one heard any gun fire
shots at the place of offence surrounded by residential locality.
At the same time, the deceased, who was a rickshaw driver
who drove the same on rent was staying with his father and his
father, who came to know about the death of the deceased
son, registered FIR that he went on a bicycle to get the
rickshaw for earning livelihood in the morning. However,
father has failed to even depose to before the Court that what
are his normal working hours so as to go outside early for
getting his rickshaw for the purpose of earning in the morning
at about 5:30 or up to 8:30 a.m.
[6.1] The prosecution examined Ramjibhai Laljibhai - P.W.
5 who was working has Head Constable in Dariapur Police
Station who was in investigation squad, who accompanied the
Police Inspector and Police Staff at the place of the incident on
17.05.1995. The witness is said to have taken the dead body
of the deceased, as per the instructions of the Police Inspector,
to the Civil Hospital for the purpose of postmortem. He was
entrusted the clothes of the deceased as also six bullets found
from the dead body of the deceased after conclusion of the
postmortem by the Doctor in a sealed cover. However,
surprisingly and mysteriously, the very police witness in the
cross examination denied that 6 bullets mudammal article no.8
wrapped in a matchbox in a sealed condition is entrusted to
him by the Doctor. He has flatly denied that the Doctor did not
entrust him 6 bullets, though he admits having stated before
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the police in his statement that after the postmortem is
performed bullets found from the body of the deceased and
the clothes worn by him at the time was handed over to him
wrapped in a matchbox and sealed. Still however, he was
neither declared hostile nor Court ordered any action to be
taken against him for giving inconsistent evidence before the
Court. Further more, while experienced Police Officer was
working with Anti Terrorist Squad, who was entrusted with
investigation of two important cases of murder, appears to
have drawn discovery panchnama in a very casual manner. As
such, there appears no disclosure statement being made and
recorded in the panchnama, which is executed by the very
experienced Officer and the said discovery panchnama on the
part of the authorship of concealment, in absence of disclosure
statement, is not believed by this Court in another case
wherein this very panchnama was used as evidence drawn by
the very Police Officer, which is also a part of this case, as
very same weapons are claimed to have been used by the
respondent - accused for commission of offence in this case
and both the cases were being investigated by him.
[6.2] Again the prosecution has come out with a theory of
extra judicial confession made by the respondent - accused,
through the investigation carried out. However, despite
offence being committed on 17.05.1995 against unknown
person, if at all the respondent - accused made any extra
judicial confession before P.W. 9 - Rashid Husein, he would
have immediately informed the Police about the same. If not
immediately, at least he would have informed the Police after
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the respondent - accused is arrested or at the first available
opportunity i.e. on 20.03.1996 when his first statement came
to be recorded. In any case, no such theory of extra judicial
confession could have been introduced in a statement dated
06.04.1996 i.e. after about 16 days of his earlier statement.
Very surprisingly, with the change of Investigating Officer in
the said offence on 23.02.1996, he has come out with a
statement of Rashid Husein - P.W. 9 dated 20.03.1996 but it
appears that theory of extra judicial confession by the
respondent - accused was never propounded therein, and
therefore, he has again recorded additional statement of the
said witness, as admitted by him in his examination-in-chief by
the prosecutor that in his statement dated 06.04.1996 witness
Rashid Husein stated that the respondent - accused made
extra judicial confession before him in the terms recorded at
page 353 of the paper-book.
[6.3] We are conscious of our limitations while dealing
with the acquittal appeal. Unless we come to a conclusion that
the findings of trial Court acquitting the accused are palpably
wrong, manifestly erroneous or demonstrably unsustainable,
we cannot interfere with the order of acquittal recorded by the
learned Judge. On overall analysis of the evidence produced
before the trial Court and read before this Court, it appears
that the case rests only on circumstantial evidence as also
except the circumstance with regard to recovery of fire arms
as also ammunitions from the house of the respondent -
accused, there appears no other evidence, which can be relied
on for recording conviction in this case.
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[6.4] So far as motive pleaded by the prosecution that
the deceased - Mohamad Hanif @ Majdi Mohamadbhai used to
act as an informer of the Police and used to provide
information with regard to the business of the gang is
concerned, he created trouble for them and for the purpose
even the deceased was warned through two of the witnesses
P.W. 2 and P.W. 3. However, analyzing the deposition of the
aforesaid two witnesses, it appears that the claim made by the
prosecution about the so called motive appears to be hollow.
According to the deposition of P.W. 2 - Usmanbhai Ahmedbhai
Malik and P.W. 3 - Rasulbhai Mohammadbhai Shaikh, one of
whom is the real brother of the deceased - Mohamad Hanif @
Majdi Mohamadbhai, one Sabbirbhai called them, that too,
three or four years prior to the incident of murder and told
them to warn the deceased of not parting with any information
of business of gang and create trouble for them. However,
the prosecution has failed to bring in any evidence, that too,
satisfactory evidence, to establish who Sabbirbhai is, whether
Sabbirbhai who told the witnesses to warn the deceased hails
from the gang itself or not or has any connection with the
accused or not. In absence of such material being on record
even if it is presumed that the deceased was the Police
informer providing information to them in respect of the gang,
no accused much less present respondent - accused be
prosecuted or even convicted, believing such motive behind
the crime.
[6.5] Though presence of motive in case of direct
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evidence may not be needed but existence and proof of such
motive in a case of circumstantial evidence assumes much
more importance as one of the connecting link as a
circumstance against the accused. From the evidence brought
on record not only the prosecution has failed to establish
existence of motive apart from the proof thereof, the evidence
of P.W. 2 and P.W. 3, as referred to hereinabove, is required to
be discarded on the point of proof of motive.
[6.6] This Court is concerned with the recovery of fire
arms and ammunition from the house of the respondent -
accused. To believe the recovery from the house of the
respondent - accused, prosecution has relied on the deposition
of Police Witness who carried out the panchnama. Whether it
is to be termed as discovery panchnama or recovery
panchnama through P.W. 17 - B.G. Khant is to be considered.
Considering the evidence, he deposed to before the Court that
when the accused led him to house from where weapons were
found, one woman named Suhanabanu wife of the respondent
was present there. However, there is no evidence on record
even through the Investigating Officer - B.G. Khant that he
knows Suhanabanu, that too, as wife of the respondent -
accused. Over and above that, even production of property
tax bill from where the weapon is recovered, it stands in the
name of the father of the respondent - accused. It may not be
a conclusive proof of house owned and possessed by the
respondent - accused alone. In absence of any other evidence
brought on record by the prosecution to establish that the
house from where recovery of weapons is effected belongs to
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the respondent - accused and possessed by him at the
relevant time. Denial of suggestion by the Police Officer that in
the said house there are several persons, as named in the
cross examination being 14 in number and witnesses not
knowing about the said fact, is no proof that it was owned and
possessed by the respondent - accused alone.
[6.7] As such, the said panchnama was drawn by this
very witness in respect of another case, that too, against the
respondent - accused, which is being used as evidence in this
case also as prosecution has come out with the case that one
of these weapons recovered is also used for commission of
offence in this case. As such, the witness claimed that it was a
discovery panchnama and disclosure statement made by the
respondent - accused while he was in custody of him in
respect of another case on his disclosure statement and
information, weapons and ammunitions were discovered at the
instance of the respondent - accused. However, as submitted
by the learned advocate for the petitioner, in the case where
this discovery panchnama was executed and relied on, he was
convicted for commission of offence of murder using the
weapon discovered at his instance. This Court while hearing
the conviction Appeal, being Criminal Appeal No.1081 of 1999,
had not believed the discovery panchnama on the ground that
there was no disclosure statement reflected from the
panchnama itself or deposed to before the Court by any
witnesses about concealment. Therefore, the Court did not
believe the concealment of the weapon or authorship of the
concealment by the accused in that case, and therefore, the
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Court did not believe that the disclosure panchnama and the
use of weapon in that case by the respondent - accused.
Same set of witnesses are examined here in this case in
respect of another weapon out of two weapons found. Since
the witnesses to the said panchnama have not supported the
case of the prosecution in this case and in absence of any
disclosure statement being made and believed by the Court in
other proceedings in respect of very same panchnama, if it
cannot be termed as disclosure panchnama, fact remains that
it cannot be discarded at all. If it is not discovery, that too, at
the instance of the respondent - accused, it can surely be
believed to be recovery from a premises stated by the witness,
who executed the panchnama i.e. B.G. Khant P.W. 17. The
witness B.G. Khant has also deposed to before the Court that
one Suhanabanu wife of the respondent - accused herein was
found in the house from where two weapons alongwith 27
cartridges were found, and therefore, even if the panchas have
not supported the case of the prosecution, the witness who
recovered the fire arms and ammunition, evidence of Police
Officer who executed the said panchnama cannot be discarded
despite he deposed to before the Court that he carried out the
same and the wife of the respondent - accused was found
inside the house coupled with the fact that it belonged to the
father of the respondent as an owner, which has been brought
in cross examination of the said witness, and therefore, it
cannot be disbelieved. At any rate, even if on recovery of fire
arm, which is said to have been used in commission of present
offence from the house of the respondent - accused is
believed, in absence of other corroborative evidence, it falls
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short of conclusive proof of authorship of crime in question.
Though no explanation by the respondent - accused with
regard to recovery of weapons and ammunition from his house
is there, whether it belongs to or occupied alone by him or not,
it is for the prosecution to prove the case beyond reasonable
doubt against the respondent - accused. Merely asserting that
one woman - Suhanabanu wife of the respondent is in the
house, the witness P.W. 17 knows the wife of the accused
Suhanabanu by name and to that effect any evidence is led by
him, it cannot be concluded that the house from where the
weapons and ammunition were found belongs to and occupied
by the respondent - accused. Still however, the said
circumstance in itself is insufficient to connect the respondent
- accused with the crime.
[6.8] Another circumstance pleaded by the prosecution
against the respondent - accused is in respect of extra judicial
confession made by the respondent - accused to P.W. 9 -
Rashid Husein. However, the said witness has not supported
the case of the prosecution. Though the said witness was
cross examined by the prosecutor and he denied to have
stated before the Police about the said extra judicial confession
before him, it has been proved to have been stated through
the Police Officer - Gopinath Ramchandra Dabekar - P.W. 15.
However, there were two statements of witness P.W. 9 -
Rashid Husein recorded, one on 20.03.1996 and another is on
06.04.1996. As admitted by the witness in his cross
examination, that in his first statement he did not state about
the so called extra judicial confession by the respondent -
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accused. However, in examination-in-chief, it has been
brought on record by the prosecution that he so stated before
the Police about the extra judicial confession in statement
dated 06.04.1996. However, submission that the said
circumstance, as argued by the learned Additional Public
Prosecutor to be corroborative piece of evidence, it is required
to be rejected outright for the following reasons:
[6.9] First of all, the so called offence is committed on
17.05.1995 and if at all the respondent - accused made extra
judicial confession to the said witness, if not on the same day,
in a proximate time before the witness P.W. 9 Rashid Husein,
he never disclosed it to the Police after commission of offence
for a pretty long time. Not only that, he did not disclose it till
even the arrest of the respondent - accused was made i.e. on
22.12.1995. For the first time, his statement is claimed by the
prosecution to have been recorded on 20.03.1996, that too,
approximately after 10 months of occurrence. Even if that first
statement is recorded on 20.03.1996, no such extra judicial
confession is being stated by the said witness. It is only in the
additional statement dated 06.04.1996, the theory of extra
judicial confession by the respondent - accused before P.W. 9 -
Rashid Husein has come to light, and therefore, even if it is
brought on record by the prosecution from the evidence of
hostile witness, that in a statement dated 06.04.1996 extra
judicial confession was made by the respondent - accused
before the witness is stated in it, it appears to be nothing but
material brought on record after a substantial time from the
date of commission of offence. Not only that the prosecution
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has not brought on record that when such extra judicial
confession by the respondent - accused is made, and
therefore, the said story of extra judicial confession having
been made by the respondent - accused appears to be not
believable at all.
[6.10] One more circumstance in support of so called
extra judicial confession is the evidence of P.W. 8 - Kashimram
Joitaram Patel, who was the then Magistrate, Court No.11, who
recorded the statement of witness - P.W. 9 Rashid Husein as
pleaded by the prosecution. However, the Magistrate has
deposed to before the Court in respect of procedure being
followed for recording statement under Section 164 of 'the
Code' of the witness. Even if it is presumed that he has
followed all the procedure prescribed under the law, learned
Magistrate cannot prove the contents of the statement
recorded by him of witness, more particularly, when the said
witness has not supported the case of the prosecution. Even if
it is admitted by him in cross examination by him before
Special Public Prosecutor that before the Magistrate once his
statement was recorded, if cross examination conducted by
the prosecution of that very hostile witness is to be believed,
he has denied that as per his say the said statement was
recorded. He has candidly admitted in his cross examination
by the prosecution that he was made to state so before the
Magistrate. Though cross examination by the learned
advocate of the accused of the witness whose statement under
Section 164 of 'the code' is recorded cannot be considered,
when he has not supported the case of the prosecution, the
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witness has admitted in his cross examination that for six days
Anti Terrorist Squad Officers have kept him in their custody.
He has further stated in the cross examination by the defence
that if he does not give such statement, he would be treated
as an accused in the case. He has further admitted in his cross
examination that his wife was also kept in custody of Anti
Terrorist Squad, the day on which he was taken before the
Magistrate for recording his statement.
[6.11] Even if as per the admission of the witness in the
cross examination conducted by the prosecutor after declaring
him hostile is to be believed, that statement was recorded by
the Magistrate, in absence of, contents thereof being deposed
to by him before the Court, it looses its significance as to the
contents of the same. The statement recorded under Section
164 of 'the Code' cannot be utilized as a substantive piece of
evidence and its use is restricted for the purpose of either
corroboration or contradiction. At any rate, even if his
statement recorded by the Magistrate in respect of so called
extra judicial confession is to be believed, in the circumstances
as narrated hereinabove, the factum of extra judicial
confession made by the respondent - accused before the said
witness does not inspire any confidence as also in the manner
in which the said extra judicial confession of the accused
surfaces in an additional statement dated 06.04.1996 of the
witness P.W. 9 - Rashid Husein, creates doubt about such
statement having been made before him. Therefore, the
prosecution is left with only recovery of fire arms and
ammunition, that too, if believed to be from the house of the
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respondent - accused and none else. It would be too
hazardous to convict any accused solely based on recovery of
fire arms and ammunition even if it is presumed to be used for
commission of this very offence.
[6.12] Even if two views are possible, the view, which is
favourable to the accused, is to be adopted while considering
the Appeal against the order of acquittal passed in favour of
the respondent - accused. We do no see any view possible
other than the one taken by the learned Judge acquitting the
respondent - accused.
[6.13] The contention of the learned advocate for the
respondent - accused that the case of conspiracy was pleaded
having been hatched in between four of the accused, when
Appeal is preferred against only one, he cannot be convicted
for an offence of murder under Section 302 read with Section
120 B of the Indian Penal Code. However, even if conspiracy is
not believed, he can still be prosecuted and punished, if
clinching evidence is brought before the Court that he opened
fire on the deceased for an offence under Section 302 of the
Indian Penal Code, and therefore, the said argument is of no
importance, and therefore, it is required to be rejected.
However, since there is no evidence available even to take a
view that he can be convicted as even the trial Court, in Appeal
challenging the order of acquittal, in absence of any material in
the form of reliable evidence, we would not disturb the findings
recorded by the learned Judge acquitting the accused.
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[7.0] In view thereof, the present Appeal fails and it is
hereby dismissed.
(UMESH A. TRIVEDI, J.)
(M. K. THAKKER, J.)
siji
