Razakali
Khureshi Sandhi Vs. State of Gujarat [1997] INSC 507 (5 May 1997)
G.T.
NANAVATI, S.P. KURDUKAR
ACT:
HEADNOTE:
S.P.
KURDUKAR, J.
This
appeal under Section 19 of the Terrorists and Disruptive Activities
(Prevention) Act, 1987 (for short `the TADA') is filed by the appellant
challenging the legality and correctness of the judgment and order of
conviction and sentence passed by the Designated Judge, Jam Nagar on June 19,
1996 for various offences punishable under Sections 302, 307, 225, 333 of the
Indian Penal Code.
2.
Briefly stated the prosecution case is as under:- On March 22, 1992, the Custom
Officers intercepted a ship called Safina-Al-Burhani and upon search thereof
recovered five belts of gold biscuits of foreign origin.
During
interrogation, Abbas Hasan Subhaniya, the tandel of the said ship, disclosed
that Harun Jusab Bhaya (A-8) and for that a team of Custom Inspectors along
with three sepoys went to Khambhalia in a jeep which was driven by Chuni Lal Barad
(PW 46). The Custom Officers came to the office of Brother & Brother
Transport at Khambhalia where they spotted A-8 and informed him that he was
being arrested in connection with the smuggling of gold. A-8 then started
running away but the Custom Officers chased and apprehended him. When A-8 was
being taken to Jam Nagar in a jeep for further investigation, he became violent
and tried to escape from the grip of the Custom Officers who, therefore,
stopped the jeep near Shrijee Hotel with a view to tie him with a rope which
they fetched from the nearby shop of Puncturwala.
When
A-8 was being tied with a rope, according to the prosecution, suddenly a truck
bearing Registration No. GTE- 7461 came from Khambhalia side and dashed against
the jeep of the Custom Officers. As a result of this dash, the Custom Officers
who were standing near the jeep fell down. Mr. Jacob (PW 2) and Mahendrasinh Rayjada,
a sepoy sustained the injuries. The said truck immediately took a turn and
again dashed against the jeep and in this process, A-8 could succeed in escaping
himself from the clutches of the Custom Officers. A-8 then boarded another
truck which was parked nearby and fled away. According to the prosecution,
appellant who was the driver of the truck intentionally dashed his truck
against the jeep whereby two person, namely, Mahindersinh Rayjada, a sepoy died
on the sport and Somaji Thakor, another sepoy died in the hospital. The
appellant then fled away.
3. The
Custom Inspector Mr. P.N. Desai (PW 1) then took a lift on the motor cycle of Jadeja
and reached the factory of Meera Tiles and gave telephone calls to the Customs
Office and also informed the police station at Khambhalia about the incident.
He then came back to the place of incident. In the meantime, police officers
reached the place of incident and thereafter the injured were removed to the
hospital. At about 8.30
p.m., an FIR was
lodged by Mr. P.N. Desai (PW 1) in the police station. After completing the
investigation, a charge sheet for offences punishable under Sections 147,
302/149, 307/149, 332, 333/149 of the Indian Penal Code as also under Section
3(a) of the Demolition of Public Property Act and under Sections 3 and 4 of
TADA came to be submitted in the Court of Judicial Magistrate Ist Class, Khambhalia
against the appellant and seven other accused persons. The case was then
committed for trial to the Designated Court
for the aforesaid offences.
4. The
appellant and other seven accused persons denied the charges and claimed to be
tried. According to them, they have been falsely implicated in the present
crime.
5. The
prosecution in support of its case adduced the evidence of four eye witnesses,
namely, Mr. P.N. Desai (PW 1), Jacob (PW 2), Bharat Trivedi (PW 3) and Chuni Lal
Barad (PW 46). In addition to the above evidence, the prosecution also placed
reliance upon the medical evidence to prove the cause of deaths of Mahindersinh
Rayjada and Somaji Thakor.
The
evidence relating to the Test Identification Parade was also produced at the
trial. The appellant, however, did not lead any evidence in support of his defence.
6. The
Designated Judge, Jamnagar, after careful scrutiny of oral and documentary
evidence on record by his judgment and order dated June 19, 1996 convicted the
appellant under Section 302 of the Indian Penal Code and sentenced him to suffer
imprisonment for life and to pay a fine of Rs. 30,000/-; in default to undergo
further sentence of RI for two years. In addition to this, the appellant was
convicted under Section 307, 225, 332 and 333 of the Indian Penal Code and was
sentenced to suffer RI for various terms in addition to the payment of fine. Harun
Jasub Bhaya, original accused No. 8, however, was convicted under Section 224
of the Indian Penal Code and was sentenced to suffer RI for two years and to
pay a fine of Rs. 5,000/-; in default of payment of fine to suffer further RI
for a period of six months. In this appeal, we are however not concerned with
the conviction and sentence of A-8. Rest of the accused persons were, however,
acquitted of all the charges. The appellant aggrieved by this order of
conviction and sentence has filed this appeal to this Court under Section 19 of
the TADA.
7. At
the outset, it may be stated that it is not and cannot be disputed that two sepoys
of Custom Department, namely, Mahindersinh and Somaji Thakor died in the
incident in question. Both of them were crushed to death because of the dash
given by the truck bearing registration No. GTE- 7461. It is, therefore,
needless to refer to the medical evidence on record. In addition to these two
unnatural deaths, P.N. Desai (PW 1) and Jacob (PW 2) were also injured in the
same incident. No sustainable arguments were advanced before us to the contrary
and we, therefore, see no reason to confirm the finding of the learned trial
court that Mahinersinh Rayjada and Somaji Thakor met with unnatural deaths and
P.N. Desai (PW 1) and Jacob (PW 2) sustained injuries in the same incident.
8. The
main contention raised on behalf of the appellant is that there is no
satisfactory material on record to establish the identity of the appellant
being the driver of the truck bearing registration No. GTE-7461. In order to
establish the identity, the prosecution relied upon the evidence of four
witnesses, namely, P.N. Desai (PW 1), Jacob (PW 2), Bharat Trivedi (PW 3) and Chuni
Lal Barad (PW 46).
The
learned trial judge, however did not accept the evidence of Jacob (PW 2) and Chuni
Lal (PW 6) as dependable to prove the identity of the appellant being the
driver of the said truck. However, in our considered view, the evidence of P.N.
Desai (PW 1) and Bharat Trivedi (PW 3) is totally unblemish and credible one to
establish the identity of the appellant being the driver of the said truck.
P.N. Desai (PW 1) in his evidence has stated that he has seen the appellant 4
to 5 times before the incident in the B & B Transport Company. He came to
know the name of the appellant six months before this incident. He was
introduced by senior Custom Officers for preventive purpose. When the jeep was
standing near Shrijee Parotha House, they were not aware that any truck was
coming from behind. When the truck came and dashed against them, they all fell
down and the head of Mahindersinh was crushed. The truck thereafter went ahead
and dashed against the electric poll and thereafter it came in reverse. Seeing
this incident, Somaji who was sitting in the jeep, got down and ran towards the
road side. At that time, the truck took a turn and came in speed and dashed
against Somaji. On both these occasions, he saw the appellant being the driver
of the truck from a distance of 80-100 feet. The defence although
cross-examined the witness at great length but there is hardly any material
brought out during cross-examination which could discredit his testimony. We
have carefully gone through the evidence of this witness and we see no
hesitation to accept his evidence being credible one. The identity of the
appellant being the driver of the truck is fully established. The material on
record also proves that the appellant was the associate of Harun Jusab Bhaya
(A-8). The manner in which the incident took place leaves no manner of doubt
that the appellant purposely and intentionally dashed against these Custom
Officers wherein Mahindersinh was crushed to death. The appellant on the second
time also brought the truck in speed after taking a turn and dashed against Somaji
who sustained injuries and lateron died in the hospital. In view of these
circumstance, we have no manner of doubt that the appellant has intentionally
caused the deaths of Mahindersinh Rayjada and Somaji Thakor.
9. The
FIR was lodged by P.N. Desai (PW 1) within a few hours wherein the name of the
appellant being the driver of the truck No. GTE-7461 was mentioned. The FIR
also made a mention of all details about the incident and it fully corroborates
the evidence of P.N. Desai (PW 1). The evidence of P.N. Desai (PW 1) finds
corroboration from that of Bharat Trivedi (PW 3) who has also sustained minor
injuries during the incident in question. He asserted that he was standing at a
distance of 60 to 70 feet when the truck dashed against Mahindersinh Rayjada.
He had seen the appellant driving the truck in a great speed. We have gone
through his evidence carefully and we find that his evidence suffers from no
infirmity as regards the identity of the appellant. The learned Advocate for
the appellant despite his efforts could not persuade us to disbelieve the
evidence of these two witnesses. The trial court, in our opinion, has rightly
believed the evidence of these two witnesses. The evidence of both these
witnesses has clearly established that the appellant has intentionally caused
the deaths of Mahindersinh and Somaji Thakor. The conviction of the appellant
passed under Section 302 of the Indian Penal Code, therefore, does not suffer
from any infirmity. The learned Advocate for the appellant was unable to point
out any error in the impugned judgment as regards the convictions of the
appellant passed on other counts. Thus, this appeal is devoid of any merit.
10.
For the foregoing conclusions, we see no merit in this appeal and the same is
dismissed.
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