Full Judgment Text
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PETITIONER:
SHAHBUDDIN ABDUL KHAHLIK SHAIKH
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT05/04/1995
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
ANAND, A.S. (J)
CITATION:
1995 SCC Supl. (2) 441 JT 1995 (3) 456
1995 SCALE (2)647
ACT:
HEADNOTE:
JUDGMENT:
M.K. MUKHERJEE, J.:
1. On February 1, 1995 we heard and disposed of this
appeal with the following order:
"For the reasons to be stated later, the
judgment of the Additional Designated Judge,
Ahmedabad dated 4th March, 1994 in TCC No.
166/93 cannot be sustained. This appea
l
succeeds and is allowed. THe conviction and
sentences unposed upon the appellant are set
aside and he is directed to be released from
custody forthwith if not required in any other
case".
We now state the reasons for the order.
2. The appellant was placed on trial before the Additional
Designated Judge, Court No.2, Ahmedabad to answer charges
under Section 302 read with Section 34 of the Indian Penal
Code and Section 3 of the Terrorists and Disruptive
Activities (Prevention) Act, 1987 (’Act’ for short) which
centered around the death of a person belonging to the Hindu
Community on December 23, 1992. On conclusion of the trial
the learned Judge recorded an order of conviction and
sentence against the appellant in respect of both the
charges. Hence this appeal under Section 19 of the Act.
3.Briefly stated the case of the prosecution is that on
December 24, 1992 Rajubhai Govindbhai (P.W. 1) a resident of
Chatursing’s Chawl, near Char Toda Kabrastan of Gomtipur in
the city of Ahmedabad lodged a complaint with Gomtipur
Police Station to the effect that on December 23, 1992 at or
about 11P.M. while he was sitting in front of his house
along with his friends Haribhai Mohanbhai Solanki and Sanjay
Kumar Kishorebhai he saw Manoharbhai Kaluram Koli, who was a
resident of the same Chawl and working as a labourer at the
Railway Station Platform Canteen, coming towards them from
the side of Patrawali Mosque. When he got as far as the
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road in front of the ESI Dispensary No. D-23 four persons
named Kallar, Arif Hanif, Shahbuddin (the appellant) and
Ishrar Kaliyo waylaid him. While the appellant and Ishrar
Kaliyo caught hold of him the other two stabbed him with
guptis. Resultingly, Manoharbhai received serious injuries
and started bleeding profusely. When Rajubhai and his
friends started shouting for help the miscreants fled away
towards Patrawali’s Chawl. Thy then rushed the injured to
the hospital where the doctor declared him dead. In his
complaint Rajubhai alleged that the murder was a sequel to
the demo-
458
lition of the structure of Babri Mosque at Ayodhya on
December 6, 1992 and the communal riot that broke out in the
city of Ahmedabad in its wake. On that complaint a case was
registered and the appellant was arrested. On completion of
investigation police submitted charge-sheet against the
appellant, and the other three accused named in the
complaint showing them as absconding. The appellant pleaded
not guilty to the charges levelled against him and contended
that he was falsely implicated.
4.That Manoharbhai met with his homicidal death on the
fateful night stands conclusively proved by overwhelming
evidence on record, In fact this part of the prosecution
case was not challenged by the defence. The uncontroverted
evidence of Head Constable Kantilal, (P,W,5), who held
inquest, with die contemporaneous panchnama prepared by him
(Ex. 11) and that of Dr. P.R. Patel (P.W.3), who held post-
mortem examination upon the deceased when read together
indicate that the deceased sustained and died of two stab
injuries, one below the left nipple and other on the upper
lateral part of the right shoulder blade.
5.The next and the crucial question that falls for
determination is whether the prosecution has succeeded in
proving beyond all reasonable doubts, that the appellant was
one of the persons who caused the death of Manoharbhai. To
prove this part of its case, prosecution solely relied and
the trial Court based its conviction on the evidence of
Jaydeep Kaluram (P.W.2), the brother of the deceased, as
P.W.1 turned hostile. Before we refer to the, evidence of
P.W.2 we may mention that in the charges framed against the
appellant it was specifically stated that he and Ishrar had
caught hold of the deceased and the other two accused had
taken out guptis and given blows on different parts of his
body. In his sworn testimony P.W.2 however categorically
stated that the appellant and Arif attacked him with guptis
while the other two miscreants had caught him. Then again,
P.W.2 stated in his examination-in-chief that when he was on
the first floor of the Chatursing’s Chawl, where he was
residing, he saw his brother being attacked by the
miscreants, in front of B-23 Dispensary. In cross-
examination, however, he not only made an altogether
different statement when he said that he was standing alone
in the flour mill of Chelaji, which was in the corner of
Chatursing’s Chawl, when the incident took place, but also
asserted that it was false to state that at the time of the
incident he was on the upper storey of the Chawl. Against
the above assertion when P.W.2’s attention was drawn to that
part of his statement made during investigation wherein it
was recorded 1 was on the upper storey of the landlord and
when my brother came after escape, I came down", he denied
to have said so. P.S.I. Nagesh Kumar (P W.6), who
investigated into the case, however admitted that P.W.2 did
make such statement before him. From P.W.2’s evidence we
further find that when he was being cross examined regarding
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the source of light by which he could recognise the
miscreants he stated that the lights in and around the place
were on but then from P.W.6 it was elicited in cross
examination that the Gomtipur area was under curfew in that
night. Indeed, in answer to a question put by the Court he
admitted "The lights on ways/roads were off on the date of
incident".
459
6.On a careful perusal of the impugned judgment in the light
of the evidence of P.W.2 as detailed and discussed above we
are constrained to say that the trial Judge recorded its
findings on an erroneous and perverse mode of appreciation
of evidence and a patently wrong process of reasoning. In
dealing with the glaring and material contradiction in the
evidence of P.W.2 as regards the place wherefrom he saw the
incident, the learned Judge observed:
"...I am of the opinion that be it from near
the flour mill or from the first floor of the
building he did see the incident as deposed by
him and that is the crucial point ".
(emphasis supplied)
7. In making the above observation the teamed Judge has,
in our view, put the cart before the horse. In fact, the
crucial point before the Court was whether the claim of
P.W.2 that he saw the incident could be accepted
notwithstanding the contradiction brought in his evidence in
this regard. In this context the teamed Judge was required
to first consider whether the contradiction was apparent or
real. inconsequential or material, explainable or
irreconcilable and acceptance of the claim of the witness
was to depend on the answer thereon. Instead of approaching
the matter from that angle and perspective the learned Judge
accepted P.W.2’s claim as gospel truth contemptuously
ignoring the material contradiction altogether.
8. We next find that when the learned Judge’s attention
was drawn to the inconsistency in the evidence of P.W.2
regarding the actual role played by the appellant in the
murder, the Judge observed that once the prosecution
succeeded in proving that the appellant was one of the four
miscreants who committed the murder pursuant to their common
intention, the question as to whether he had only caught
hold of the deceased or had actually stabbed him was
redundant. As a proposition of law the above observation
made by the trial Judge may be unexceptionable but then it
cannot be gain said that the inconsistency pointed out by
the appellant warranted a close scrutiny of the evidence of
P.W.2, as he happened to be the brother of the deceased, and
the result of the trial solely rested upon his testimony.
9. Lastly, in rejecting the contention of the appellant
that there being no light in and around the area where the
incident took place P.W.2 could not have seen it much less
identified the miscreants, the learned Judge observed that
even though the Investigating Officer said that the electric
poles were not working at the time of the incident, the
panch witness had stated in an answer to Court’s query that
the buildings surrounding the area were having lights
whereby the roads were illuminated and the persons on the
road could be identified. The learned Judge then recorded
the following finding:
"So, even if it may be that the street lights
may not be working, yet there was sufficient
light thrown from the nearby buildings with
the aid of which the persons walking on the
road can be easily seen, and thus also renders
a ring of truth to the straight forwardness
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and the credibility of the witness (P.W.2)
when he says that he had witnessed the
incident".
10.On going through the record placed before us we however
find that the only
460
panch witness who was examined during the trial was one
Ishwar Singh (P.W.4) and his evidence does not disclose the
statement attributed to him by the trial Judge. We hasten
to add that even if he had made any such statement we would
not have placed any reliance thereupon as, being a witness
only to the seizure of blood and other articles on the
following morning, that is on 24.12.1992 and not of the
incident itself he was not competent to testify as to
whether the place of incident was illuminated on the
previous night notwithstanding the curfew and the admitted
fact that the street lights were not on in that night.
11.For the foregoing discussion we unhesitatingly hold that
the reasons given by the trial Court for accepting the evi-
dence of P.W.2 are wholly unsustainable. We further hold
that having regard to the facts that P.W.2 materially
contradicted himself as to the place wherefrom he saw the
incident, that the overt act allegedly committed by the
appellant did not fit in with the case of the prosecution
as reflected in the charges and that there was no light in
and around the place of incident, P.W.2’s claim that he had
seen the incident and identified the miscreants is wholly
unacceptable as creditworthy. The appeal must therefore be
allowed and we order accordingly.
462