Abdul Ise
Suleman Vs. State of Gujarat [1994] INSC 115 (14 February 1994)
Ray,
G.N. (J) Ray, G.N. (J) Reddy, K. Jayachandra (J)
CITATION:
1994 AIR 1910 1994 SCC Supl. (2) 9 JT 1994 (1) 602 1994 SCALE (1)559
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by RAY, J.- This appeal is directed against
the judgment and order of conviction and sentence passed by the High Court of
Gujarat in Criminal Appeal No. 233 of 1976 on April 4/25, 1979 reversing the
order of acquittal dated December 23, 1975 passed by the learned Sessions
Judge, Bharuch in Sessions Case No. 30 of 1975. Five accused persons including
the appellant were prosecuted in the said Sessions Case No. 30 of 1975 for
offences under Sections 147, 148, 307 and 302 read with Section 149 IPC for
murdering one young boy, Ayub Umarji, aged 10 years and injuring PW9, Gulam Musa
Mohmed Ismail with gunshot injuries. The learned Sessions Judge was of the view
that the prosecution case could not be accepted because the incident was not
likely to be witnessed by the prosecution witnesses which, according to the
prosecution had happened at night and in all probability the incident had
happened earlier and the boy had died because of a cross fire between two
fighting groups.
+ From
the Judgment and Order dated April 4/25, 1979 of the Gujarat High Court in Crl.
A. No. 233 of 1976 10
2.
Against the said judgment of acquittal the State of Gujarat preferred Criminal Appeal No. 233
of 1976 in the High Court of Gujarat against two accused, namely, Hasan Ise Suleman
and the appellant Abdul Ise Suleman. The State of Gujarat, however, did not prefer any appeal
against the other three accused. The complainant Umarji Vali Aslam filed a revisional
criminal application No. 182 of 1976 against all the accused challenging the
order of acquittal passed in their favour. Later on, the said complainant did
not press the criminal revision application No. 182 of 1976 and the same was
dismissed for non-prosecution and Criminal Appeal No. 233 of 1976 was disposed
of by the High Court by reversing the order of acquittal and convicting accused
1, Hasan Ise Suleman for offence punishable under Section 324 IPC and
sentencing him to suffer rigorous imprisonment for one year on that count. The
High Court convicted the appellant accused 2 for an offence punishable under
Section 302 read with Section 301 IPC and sentenced him to suffer rigorous
imprisonment for life. Against such order of conviction accused 1 preferred
Criminal Appeal No. 294 of 1979 but in view of the death of the said appellant Hasan
Ise Suleman, during the pendency of this appeal before this Court, the said
appeal was dismissed as abated. Criminal Appeal No. 289 of 1979 preferred by
appellant accused 2 was considered on merits and is being disposed of by this
judgment.
3. The
prosecution case in short is that on April 14, 1979 at about 5.00 p.m. accused
4, Ibrahim Ismail who was the servant of the other three accused had beaten the
complainant Umarji's uncle Ahmed Aslam with a shoe as the said Ahmed Aslam also
known as Master had demanded one rupee from the said accused 4 as a
contribution for giving water to the bullocks. The complainant after returning
from his field at about 7.30
p.m. came to know
about Such assault on his uncle and thereafter he went to Pir Chakla which was
adjoining to his house where he met PW 9 Gulam Musa Mohmed who was an injured
witness and one Abdul Haq the son of said Ahmed Aslam. While they had been
discussing about the incident of that assault of Ahmed Aslam, Kalidas Ibrahim,
PW 10, also joined them. While they had been talking to Kalidas about the
incident, the said persons were near the shop of PW 15, Ibrahim and from the
said place the house of PW 4 was visible. Kalidas then suggested that all of
them should go to the house of accused 3 because they saw all the accused
persons sitting on the benches of the Otla of the house of accused 3. The
intention of the complainant and his companions was to make a complaint about
the incident of beating Ahmed Aslam with shoe by accused 4 because accused 3, Haji
Ise Suleman, was the head of the family and the master of accused 4. The
prosecution case is that one petromax light was burning at the Otla of accused
3's house.
It is
an admitted position that there was no electricity in the village. The further
case of the prosecution is that on hearing the complainant accused 3 lost his
temper and the other accused persons became very much excited. The said accused
3 then shouted at accused 2 Abdul Ise Suleman, namely, the appellant and asked
him to bring guns from the house. Accused 3 thereafter went to the house and
brought three guns and gave one gun to each of accused 1, and accused 2 and
accused 3, Haji Ise Suleman also kept one gun for himself. Accused 2 gave a
leather wallet containing cartridges to accused 1 who distributed the said
cartridges to accused 2 and 3 and asked them to load the guns. On seeing this
all the said four witnesses including the complainant started 11 running away
from the house of accused 3. According to the complainant, the injured witness,
Gulam Musa Mohmed, was running behind them while the complainant Kalidas and
Abdul Haq were running ahead of Gulam. When the complainant reached the shop of
Sadik Mohmad, they saw Khoda Gulam, PW 12, and Chandu Bechar, PW 13, standing
there. According to the complainant, when they started running towards the west
on a road leading towards a khadki and while they were crossing the Pir Chakla,
they heard a sound of gunshot and while they were standing in the Naveri, Gulam,
the injured witness who was following them told them that he was injured by the
gunshot on his left hand. Immediately thereafter, they heard another sound of
gunshot coming from the direction of the house of accused 3 and thereafter two
more sounds were heard by them. A big crowd gathered in front of the house of
one Abdul Mohmed Vilayati and the complainant went near the crowd and saw that
his son Aiyub was lying there injured by a gunshot on his head and shoulder and
on examining him he found that his son was dead. The police Head Constable from
the village outpost arrived there and he took the complainant to the police
station where he gave his complaint. The Head Constable thereafter sent the
complainant and the injured person Gulam to Jambusar Police Station with the
complaint Ext. 32 and according to the P.S.1., M.K. Chaudhari, PW 19,
complainant, PW 8, and injured Gulam, PW 9 arrived at Jambusar Police Station
at about 0. 15 a.m. and the occurrence report and the offence was registered.
The police recorded the statement of Gulam and sent him to the hospital for
medical treatment. The PSI thereafter left Jambusar for village Tankari where
the incident had taken place and he reached the place at about 1.30 a.m. and the complainant, PW 8, showed him the scene of
occurrence. The PSI made search of the accused persons but they could not be
found in the village. The inquest over the dead body was held at about 2.15
a.m. and the statement of witnesses Kalidas, PW 10, Musa Mohmed, PW 14, Ibrahim,
PW 15, and others were recorded at about 6.45 p.m. Panchnama of the scene of
offence was prepared the next morning. During the search of the house of
accused 3, a double-barrel gun, Article No. 6, was seized under Panchnama Ext.
21, while nothing incriminating was found from the house of accused 4 and 5.
The statements of two eyewitnesses Khoda, PW 12 and Chandu PW 13 were also
recorded on the same day. Ultimately all the five accused persons presented
themselves before the PSI at Jambusar Police Station and accused 3 produced the
gun licence, Article No. 11, accused 1 produced gun licence, Article No. 12 and
a combined double-barrel bridge loading rifle, Article No. 13, and accused 2
produced a gun licence Article No. 14 and a double-barrel rifle, Article No.
15.
All
the said articles were attached under Panchnama. After completion of the
investigation, the accused persons were charge-sheeted and they were ultimately
committed to the court of Sessions.
4. The
postmortem was held on the body of the deceased and the doctor noted the
injuries caused by gunshot and the doctor gave his opinion that the death was
caused due to the gunshot injuries and such injuries were sufficient to cause
death in the ordinary course. PW 9, Gulam, was also examined by the doctor at
about 1. 10 a.m. in the very night of occurrence and the doctor noticed two
gunshot injuries and the said PW 9 was treated as indoor patient for five days.
12
5. The
High Court referred to a number of decisions of this Court and noted the
guiding principles governing the exercise of appellate jurisdiction of the High
Court and the duty of the appellate court while dealing with an order of
acquittal. The High Court has indicated that keeping in mind all the
well-settled principles for deciding an appeal against an order of acquittal,
the facts and circumstances of the case were taken into consideration by the
High Court and the impugned judgment was delivered. A site of the place of
occurrence being Ext. 10 was prepared by Musabhai Valibhai, PW 1, and he proved
the said site plan. The High Court indicated in the judgment that all the
important spots in the map had been carefully noticed by the High Court in
order to correctly appreciate the evidences adduced in the case. It has been
noted by the High Court that the distance where the said young boy had died and
the house of accused 3 was 131 ft. or roughly about 43 to 44 yards only and the
High Court also noticed that all the prosecution witnesses and the accused
persons were present within the circumference of about 100 yards. It also
transpired from the map that there were shops in the locality and the evidences
also disclosed that shopkeepers also used to keep petromax lanterns in the shop
and there was hotel in the locality and it also transpired from the evidences
that there was petromax light even in the house of accused 3.
Panchnama
of the scene of offence being Ext. 16 clearly indicates that near Pir Chakla
the house of Abdul Mohmed Vilayati was situated and there was mud Otla of the
length of 2 1/2 feet from the door of his house. Near the place, there was a
pool of blood within an area of half foot. It was also indicated in the Panchnama
of the scene of offence that certain cartridges and pellets were seized by the
police. It also transpires from the Panchnama that the house of other witnesses
were also situated near the scene of offence. The High Court has noted that the
complainant, PW 8, stated in his deposition that one petromax light was burning
on the otla. He also stated that there was no electric light in the village and
all the shopkeepers used to keep petromax lantern. He also stated that on
hearing the complaint of these four persons, accused 3 lost his temper and all
the accused persons were excited. It has also been noted by the High Court that
although an effort was made in the cross-examination of the said complainant to
suggest that there was enmity between the said complainant and the accused but
such suggestion in the cross-examination was denied by the said witness. The
said witness in his cross-examination stated that although the injured witness Gulam
had told him that it was the gun of accused 1 which caused injuries to the said
Gulam but such fact was not stated by the complainant when he lodged the
complaint before the Police Constable. The said complainant also stated in his
cross-examination that Khoda PW 12 and Chandu PW 13 had told him that they had
seen shot from the gun of accused 1 injuring Gulam PW 9 and other gunshot from
accused 2 hitting his son. The said witness further stated that he could not
give the details in the complaint because he was too excited and frightened.
The complainant, PW 8, denied the suggestion that Khoda PW 12 and Chandu PW 13
were got up witnesses. The High Court has noted that the complainant, shortly
after the incident, lodged the complaint before the police and the names of all
the witnesses were mentioned in the complaint. The High Court has also noted
that the deposition of the complainant tallies with the complaint made by him.
The High Court has further founded that PW 9 Gulam who was an injured witness
also supported the prosecution case. The High Court has further noted that 13
reading the entire cross-examination of the said injured witness, it can be
noticed that there was no contradiction in his deposition. The High Court, after
indicating the reasons in detail, has come to the finding that the entire
evidence of the injured witness PW 9 is trustworthy and the witness has stated
truth. The High Court has also taken into consideration the evidence of two
eyewitnesses Khoda PW 12 and Chandu PW 13 and according to the High Court the
said eyewitnesses were natural and their names were mentioned in the complaint
Ext. 32, which was lodged shortly after the incident. After referring to the
site map, the High Court has come to the finding that both the said witnesses
were very much present at the shop of Sadik Mohmed and the place where the boy
had been shot dead was close from the place where the said witnesses were
present. The High Court has noted that from the evidence of PW 12, it transpires
that at the relevant time accused 1, 2 and 3 were holding guns and he heard a
gunshot being fired from the gun of accused 1 and he noticed that Gulam was
injured by that gunshot. He also deposed that after some time accused 2 fired
his gun and that shot hit Aiyub who was standing on the otla of accused 3 and
being hit by the gunshot Aiyub had fallen down. The High Court has held that
the evidence of PW 12 inspires confidence and his presence at the said spot,
for the reasons disclosed by the said witness, was acceptable. The High Court
has also noted that the evidence of PW 12 stands corroborated by the Panchnama
of scene of offence inasmuch as the deceased had fallen down just near the
house of Mohmed Vilayati. The High Court has also noted that PW 12 had no
oblique motive against the accused persons. The High Court has also noted that
no contradiction worth the name could be brought by the defence to destroy the
credibility of the said witness. The High Court has also referred to the
evidence of Chandu PW 13 and has come to the finding that he was a natural
witness and his evidence also stands corroborated by the evidence of the
injured Gulam and also the evidence of witness PW 12. The High Court has noted
that although PW 13 did not state before the police that there was petromax
light but non-mention of such petromax light was insignificant omission and the
substantive evidence should not be discarded for such omission. The High Court
has also referred to the deposition of PW 15 Ibrahim Ismail. The shop of the
said witness is situated just near Pir Chakla and opposite to spot 'B' in the
map where the young boy had died. It has been noted by the High Court that the
evidence of PW 15 has clearly established that at 5.00 p.m. accused 4 had given a shoe beating on the head of Master
and at about 8.00 p.m. on the same day he heard two or
three gunshots.
6.The
High Court, has also analysed the reasons indicated by the trial court for
giving an order of acquittal and after indicating its own reasonings the High
Court came to the finding that such reasonings of the learned Sessions Judge
were against the weight of the evidences and could not be accepted. The High
Court has also held that the incident had happened at about 8.30 p.m. when the son of the complainant had died. The
complaint was lodged at about 10.30 p.m It
has been held by the High Court that if the grief-stricken father had lodged
the complaint within two hours from the time of the incident, it cannot be
contended that there was unreasonable delay thereby raising suspicion about
cooking up of a false case. The High Court has also come to the finding that
non-mention of petromax light in the complaint lodged by the poor father can be
easily explained because the father was under a great shock and it was quite
likely that 14 he had omitted to mention about the petromax light in that state
of mind. The High Court has also come to the finding that although accused 2
might have not intended to kill the young boy aged 10 years but the provision
under Section 301 IPC is clearly attracted in the facts and circumstances of
the case.
7.In
view of the aforesaid findings, the High Court set aside the order of acquittal
passed by the learned Sessions Judge and held that accused 1 was guilty for the
offence punishable under Section 324 IPC for causing injury to PW 9 Gulam with
a gun and appellant 2 was held guilty for an offence punishable under Section
302 read with Section 301 IPC for causing the death of the son of the
complainant PW 8. In that view of the matter, the High Court passed the
sentence of life imprisonment against the appellant.
8.The
learned counsel for the appellant has submitted that the prosecution story does
not inspire confidence on the face of it. It has been contended by the learned
counsel that it is unusual and not expected normally that the complainant and
his companions would wait even when accused 3, a rich and influential man in
the locality, became highly agitated along with other accused persons and
ordered for bringing guns from the house to teach a lesson to the complainant
and his associates. In any event, it is absolutely improbable that when
actually three guns were brought to the otla of accused 3 and wallet containing
cartridges were also brought, the complainant and his associates would still
wait there and see the distribution of cartridges and only thereafter they
would leave the place. The learned counsel has also contended that it is an
admitted position that there was no electric light in the locality and in the
First information Report the complainant did not mention about any petromax
light burning in the otla of accused 3. He has also not mentioned about petromax
light being used by the hotel or other shopkeepers. The mention of petromax
light at a later stage was a clear embellishment and the learned Sessions Judge
was justified in disbelieving the existence of sufficient light in view of petromax
lantern burning there. It has been contended by the learned counsel for the
appellant that if strong light was not there in the otla of accused 1 or near
about the place where the boy was shot dead and PW 9 Gulam had sustained
injuries, it was not possible for any of the witnesses to see who had actually
fired the gun. Admittedly, there were three guns brought from the house and
admittedly all the said guns were loaded. In the aforesaid circumstances,
unless it can be clearly pinpointed as to which of the accused had actually
fired the gun causing the death of the said boy, it was not possible to convict
the appellant on a charge of murder.
9.The
learned counsel has also contended that when the complainant and his associates
were running away from the otla being frightened by the fact that the three
guns were loaded by the accused persons, it was not expected that they should
try to look as to what the accused had been doing.
In the
aforesaid circumstances, it would be a natural tendency of the complainant and
his associates to run as fast as possible in order to save their lives. The
learned counsel has submitted that although the High Court, in its judgment has
noticed the guiding principle in dealing with the order of acquittal by the
appellate court, but such principles have not been followed by the High Court.
The learned counsel has submitted that the learned Sessions Judge has given
very cogent reasons for basing his finding that the prosecution case could not
be established beyond reasonable doubt. According to the learned counsel for
the 15 appellant such finding is consistent with the evidence and the learned
Sessions Judge having taken a reasonable view, the High Court was not justified
to make a reappraisal of the evidences adduced in the case for making
independent finding of its own and to set aside proper and reasoned order of
acquittal. The learned counsel for the appellant has further submitted that in
any event, the facts and circumstances of the case and the depositions led by
the prosecution do not establish that the appellant had any intention to commit
murder of an innocent boy aged ten years with whom there was no question of
having any enmity or any occasion to take a revenge. Even if from the evidence,
it is possible to hold that the gunshot taken by the appellant ultimately
caused the death of a boy, the court must hold that such death was absolutely
unintentional and at best it can be held that such firing was a rash and
negligent action on the part of the appellant. In that event, the offence
committed by the appellant cannot be held to be a murder under Section 302 read
with Section 301 IPC as held by the High Court but an offence under Section
304-A IPC. The learned counsel has further submitted that if an old man aged
about 80 years had been given a shoe beating on the head by accused 4 who was
the servant of accused 3, there was no occasion for the accused 3 to lose
temper if his attention was drawn to such improper behaviour of accused 4. The
learned counsel has submitted that the prosecution case was false and the truth
was not told by the prosecution witnesses. He has submitted that the learned
Sessions Judge has rightly held that it is likely that there was some incident
in the afternoon for which two groups had fought and it was only in the cross
fire a young boy was shot dead and one of the witnesses had sustained injuries.
The learned counsel has, therefore, submitted that the improper order of
conviction and sentence passed against the appellant should be set aside by
this Court and the appellant should be acquitted.
10.Such
contention is, however, disputed by the learned counsel for the State and it
has been submitted that the prosecution case was fully established by reliable
and clinching evidences and the offence of murder by the appellant has been
proved by a number of eyewitnesses. It has been submitted that tile High Court
has analysed the depositions of eyewitnesses and has clearly held that the
deposition of each of the eyewitnesses stands corroborated by the site plan and
medical evidence and such depositions are absolutely reliable. The High Court
has also held that PWs 12 and 13 were natural witnesses and they had no animus
against any of the accused persons and their evidences were absolutely
trustworthy. He has submitted that the reasonings of the learned Sessions Judge
have been taken into consideration by the High Court and by indicating very
cogent reasons, the same has been discarded. Hence, there is no occasion to
interfere with the order of conviction and sentence passed against the
appellant and the appeal should be dismissed.
11.After
giving our careful consideration to the respective submissions made by the
learned counsel for the parties and considering the facts and circumstances of
the case and evidences on record, we have no hesitation in holding that the
order of acquittal passed by the learned Sessions Judge against the appellant
was wholly unjustified and against the weight of the evidence adduced in the
case.
In the
instant case, apart from the depositions of complainant and his companions who
had been to the house of accused 3 to lodge protest against the assault made on
the said old man, there are convincing 16 evidences of two independent
eyewitnesses, namely, PWs 12 and 13. In our view, the High Court is justified
in holding that PWs 12 and 13 are natural witnesses and their evidences are
absolutely reliable and the same get corroboration by the evidences given by
other eyewitnesses and also from the injuries suffered by the deceased and the
injured person and the site plan prepared for the case. The reason given by the
complainant for not mentioning the existence of petromax lantern in the
complaint before the police is quite convincing and natural. The complainant
has stated in his deposition that he was greatly shocked by the wanton act of
killing of his son and he was also nervous when he lodged the complaint to the
police and therefore, he did not mention the presence of petromax light. There
is positive evidence that the shopkeepers used to keep petromax lantern and in
the otla of accused 1 a petromax light was burning.
In our
view, the High Court has given very cogent reasons for holding that the
appellant was guilty of the offence under Section 302 read with Section 301
IPC. The gun was not fired in the air just to frighten the complainant and his
companions but the gun was fired by the appellant towards fleeing persons even
when by the first shot one of such persons was injured. Such firing was
resorted to in a locality where there were number of shops. Accordingly, the
provision of Section 301 IPC is clearly attracted in the facts and
circumstances of the case. We, therefore, find no reason to take a contrary
view in the case and to upset the well-reasoned judgment of the High Court
convicting the appellant. The appeal, therefore, fails and is dismissed.
The
appellant was released on bail during the pendency of the appeal. He should,
therefore, be taken into custody to serve out the sentence.
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