Gujarat High Court
State Of Gujarat vs Salim Abbas Banda on 17 January, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/1183/1995 JUDGMENT DATED: 17/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1183 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SALIM ABBAS BANDA & ANR.
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Appearance:
MR.L.B.DABHI, APP, for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR NITIN M AMIN(126) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 17/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The State has preferred the present appeal under Section 378 of
Code of Criminal Procedure against the judgment and order dated
26.09.1995 passed by the Additional Sessions Judge, Bharuch in
Sessions Case No. 73 of 1995. By the impugned judgment and order,
two accused persons who were tried for the charge of offence under
Section 302 read with Section 34 IPC and Section 135 of the Bombay
Police Act , were acquitted from the charge of Section 302 read with
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Section 34 of IPC, but convicted for offence under section 304 Part-II of
IPC.
2.We are informed that respondent No.2 has expired and hence, the
appeal stands abated qua respondent No.2 and sofaras respondent
No.1 is concerned, no appeal has been preferred against conviction and
apparently, has undergone sentence. The case of the prosecution on
the basis of the evidence of eye-witnesses, it is coming out on record
that when two eye-witnesses; PW-3 and PW-4 have also given version,
where this witnesses along with the deceased just came across the
accused persons and when they questioned them about previous
incident, present incident occurred, where allegedly respondent No.1
was attributed with an act of giving inflicting knife blow on the chest.
3. By order dated 27.04.2022, the Court has recorded that
respondent No.2-Abbas Mahmed Adam Banda has expired on
23.05.1997 and thereafter upon production of the death certificate and
its verification by order dated 13.06.2022, the appeal stood abated qua
respondent-accused No.2. Respondent-accused No.1 who was a 19
years of age has already undergone the sentence inflicted by the
impugned judgment and order and as per the jail report produced, the
sentence was undergone on 13.08.1996.
4. The incident had taken place on 23.11.1994 on account of a
dispute between the two sides for digging up the cricket pitch by the
accused side, which was later on confronted by the complainant side
and at that time, two accused persons in feat of rage, accused No.2
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caught hold of deceased Rashid and accused No.1 delivered blow with
knife on vital part of the body which has resulted into death of Rashid
and in connection with which in an FIR being I-C.R.No.76 of 1994 came
to be registered with Vedach police station.
5. Upon due investigation, the respondent accused persons were
arrested and chargesheeted and upon completion of necessary
procedure of providing with the documents of charge sheet under
Section 209 of the Code of Criminal Procedure, the case came to be
committed by Judicial Magistrate First Class, Jammsura vide order at
Exh.7 to the Session Court.
6. The State has preferred the present appeal, contending inter alia.
that despite the State having produced sufficient relevant evidence to
establish case under Section 302 of the IPC, erroneously the trial Court
has convicted both the accused only for the offence under Section 304,
Part-II of the IPC.
7. Learned Additional Public Prosecutor submitted that considering
the nature of injury sustained by the deceased on the vital part of the
body that is piercing injury in the heart, the intention of respondent
accused was clearly established and that the accused has caused such
an injury knowingly, which would result in death of the deceased.
7.1 It is submitted that from the evidence of the eye witness himself who
was present when the incident took place and and his presence at the
time and place of incident is not in doubt, The prosecution was able to
establish the motive and the previous altercation which led to the
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present assault and therefore also the intention of respondent accused
to commit murder was clear.
7.2 Learned APP has taken this Court through the evidence of
eyewitness PW-3 Abbasbhai Ismailbhai Akhadawala at Exh. 24 as well
as eyewitness PW-4 Yunus Ibrahim at Exh. 25. Learned APP has
thereafter taken this Court through the evidence of panch witness PW-6
Laxmanbhai Mohanbhai Parmar at Exh.27 in whose presence the
weapon knife was discovered and submitted that the discovery
panchnama was proved and therefore, the same being under Section
27 of the Evidence Act be treated as relevant and admission to the
extent of the accused person admitting to the usage of the weapon for
assault.
8. As against this, learned advocate for the respondent-accused
submitted that even from the evidence of eyewitness, the respondent-
accused and the deceased along with the eyewitness had confronted
with regard to the digging of the cricket ground on the public road and it
is at that place the incident took place and therefore, there was no
premeditation or intention to commit the offence of murder. It is
submitted that in absence of mense-rea, the prosecution is unable to
establish the offence under Section 302 of the IPC and therefore the
Sessions Court has convicted the accused persons for offence under
Section 304 of IPC.
8.1 It is submitted that at the relevant time accused No.1 was merely
19 years of age and therefore, in the feat of rage when he was
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confronted by the other side on the issue of digging of cricket ground,
the incident has taken place and the accused person has already
undergone the sentence thus imposed. Therefore, it is prayed that the
impugned judgment and order may not be interfered with.
9. Having heard learned advocates for the parties and having
perusing the impugned judgment and order so also the documents on
record. As indicated in the preceding para, the incident has taken place
when Rashid and other two persons confronted the respondent-
accused and reprimanded him for digging up the cricket ground which
resulted into a scuffle and delivery of fatal blow with the use of knife on
the vital part of the body of the deceased.
10. Vide Exh.2 charge came to be framed against the respondents to
the effect that on 24.11.1994 at 20:00 hours at village Sarod and in
public when deceased Rashid confronted the accused persons on the
issue of digging up of cricket pitch and reprimanded the accused person
at that time the respondent accused being agitated and respondent
No.2 caught hold off deceased with his hands in fit of rage and accused
No.1 inflicted knife blows on the left side of the chest and therefore,
were charged for offence under Section 302 read with Section 34 of the
IPC and under Section 135 of the Bombay Police Act.
11. The prosecution has examined PW-1 Hanif Yusuf, who is the
brother of the deceased and also an eyewitness. This witness has
deposed in support of the prosecution. He has deposed that on the day
of incident at around 8 o'clock in the evening they were passing through
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Bazaar for going towards Juma Masjid, where they came across the
accused persons, Salim and Abbas, at that time the deceased Rashid
reprimanded them with regard to the verbal altercation with the cousin
brother of the deceased, and at that stage, the respondent accused got
agitated and caught hold off Rashid while other delivered the knife
blows.
12. The prosecution has examined PW-3 Abbasbhai Ismailbhai
Akhadawala at Exh. 24, who is the friend of the deceased and also an
eyewitness, who was accompanying the deceased when the incident
took place. Similarly prosecution has examined PW-4 Yunus Ibrahim at
Exh. 25, who had also accompanied the deceased when the incident
took place, and both these witnesses have deposed which is identical to
that of PW1.
13. The perusal of the evidence of all the three witnesses would go onto
indicate that the incident has taken on a public street, when the
deceased and his companions had confronted the accused persons
with regard to a previous altercation with the cousin of the deceased
and it is at that stage the incident of assault took place. This would
indicate that the incident took place at the spur of the moment. There
was no pre-meditation or preparation for committing the offence, but all
of a sudden when both the sides came face-to-face that too in the public
street and when deceased reprimanded the accused persons with
regard to a previous incident, the assault has taken place. In the opinion
of the Court, the facts as they emerged on the face of the records, the
ingredient of Section 302 of IPC and considering this, the Sessions
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Court has acquitted them of the charge of Section 302 of the IPC, at the
same time, as the prosecution was able to establish beyond reasonable
doubt the assault being made by the respondent-accused and resulting
into a serious injury on the vital part of the body, conviction under
Section 304 of IPC is justified. The Court, as per the reasons given by
the Sessions Court to arrive at a conclusion that the conviction is to be
recorded under section 304 Part-II with due regard to the attending
circumstances, including the age of the respondent No.1, the Court
does not find any reason to interfere with the reasons assigned by the
Sessions Court.
14. However, this fact is also indisputable that when the deceased
Rashid and witnesses Hanif and Abbas Akhadawala were together, the
deceased Rashid scolded in such a manner that as a result of such
instigation from the deceased Rashid being os such a nature that the
Accused No. 2 Abbas Banda held the deceased from behind and at the
same time the Accused No. 1 Salim who is of a young age, incited and
inflicted a knife blow. Under the circumstances, the reason for
instigation was that the deceased Rashid reprimanded the accused
persons. Due to such instigation, the accused no.2 Abbas Banda took
hold the deceased Rashid and at the same time, the accused no.1
Salim Banda inflicted blow of knife to the deceased and that also due to
the same instigation. Therefore, it can only be assumed that the serious
reason for the instigation by Accused No. 2 to hold the deceased was
only the deceased himself. Therefore, due to sudden instigation,
accused Salim Banda inflicted knife blows in the chest of the deceased.
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The accused Abbas Banda has abetted in the offense of murder
because he held the hands of the deceased Rashid. Hence, upon
considering the circumstances of the case and the evidence and
documentary evidence produced by the prosecution, the fact is proved
that both the accused have committed the murder of the deceased
Rashid by instigation. Therefore, both the accused are found guilty for
the offence u/s 304(A) of the Indian Penal Code.
15. The Court has also taken into consideration the evidence of the
Medical Officer PW-2-Narendra Gunvantray Joshi at Exh.22, who has
performed the postmortem and as in his report, it is stated that the
injuries are sustained on the vital part of the body. The sustained is a
cut wound, cut and piercing wound of 1.5 cm by 0.5 cm and deep into
the cavity of the heart. According to the witness, such injury is sufficient
to cause death and can be caused by the Mudamal article No.5 and
therefore, though the prosecution was able to establish the homicidal
death of the deceased, the Court is also bound to consider other
evidences and considering the evidence of the panch witness of
discovery panchnama PW6-Laxmanbhai Mohanbhai Parmar vide
Exh.27, who has supported the execution of panchnama Exh. 28. In the
panchnam, the description of weapon muddamal article No.5 is given
with handle of 6 inch. The blade of 7 cm and the width of the blade
being 1 cm, the blade was fitted with rivate on the wooden handle. The
description of the muddamal article No.5 in the discovery panchnama is
that of a commonly used domestic knife and would rather be treated as
a kitchen knife, then a weapon of assault. This would also indicate that
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the respondent-accused had delivered the blow with a knife which was
commonly available and therefore does not support the case of the
prosecution insofar as the nature of weapon for assault and the
intention to commit murder.
16. The Court has thereafter taken into consideration the scientific
evidence in the form of FSL report at Exh.19, where during the course
of investigation, the list of articles sent for FSL included muddamal
article No.59, however, it did not have any stains of any nature over it.
Serological report at Exh.21 shows the presence of blood group on the
articles seized during the investigation, namely the clothes of the
deceased persons, but does not find any presence of blood stains over
the muddamal article No.5, the knife as well as the clothes of the
accused persons.
17. The Court may also draw strength from the decision of the Apex
Court in case of Rajesh Prasad Vs. State of Bihar & Anr. reported in
(2022) 3 SCC 471, wherein the Apex Court has examined the case law
with regard to the power of the High Court to overturned the decision of
the Sessions Court where an another view is possible. Examining the
case including that of Chandrappa & Ors. vs. State of Karnataka
reported in (2007) 4 SCC 415, the Apex Court has culled out the
general principles regarding the powers of the Appellate Court while
dealing with the appeal against the order of acquittal. The Apex Court
has held that the appellate court has full power to review, re-appreciate
and reconsider the evidence upon which the order of acquittal is
founded. However, the appellate court has to keep in mind that in case
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of an acquittal, there is a double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence, and thereafter, upon
securing of acquittal, the presumption is further reinforced, reaffirmed
and strengthened, and therefore, whenever there are two reasonable
conclusions are possible on the basis of the evidence on record,
ordinarily, the Apex Court would not disturb the findings of acquittal
recorded by the Trial court.
18. In the result, the appeal fails and is dismissed. The judgment and
order of acquittal dated 26.09.1995 passed by the Additional Sessions
Judge, Bharuch in Sessions Case No. 73 of 1995 stands confirmed.
Bail and bail-bonds of the accused, if any, stand discharged. Records
and proceedings be sent back to the concerned trial Court.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
SIDDHARTH
