Ahmed Fajmohmed Kaji Vs. State of Gujart  INSC 816 (7 November 1997)
PUNCHHI, M. SRINIVASAN
7TH DAY OF NOVEMBER, 1997 Present:
Mr. Justice M.M.Punchhi Hon'ble Mr.Justice M.Srinivasan Narayan N. Keshwani,
R.N. Keshwani and Sanjay Kumar, Advs. for the appellant Dr. N.M. Ghatate, Sr.Adv.,
S.K. Sabharwal, Ms. Neithono Rhetaso, and Ms. Hemantika Wahi, Advs. with him
for the Respondent
following Judgment of the Court was delivered:
appellant and another per son by name Dilip Bhagwan Rai were prosecuted in the
Court of Sessions, Valsad at Navasri, State of Gujarat for the offences
punishable under Sections 302 and 34 of the I.P.C. on the charges that they
committed murder of one Gajanand Patel on 4.8.1984 within the compound of Court
of Judicial Magistrate (F.C.), Pardi.
deceased was an advocate by profession and the General Secretary of an
employees' union. On 4.8.1984 at about 11.45 a.m. he reached the Court of the Judicial Magistrate by car alongwith four
other persons, three of them being advocates. When the deceased was climbing
the steps to go to the court room, he was shot by the appellant with a pistol.
There were thereof firings. While two of them hit the deceased, one just caused
abrasion on his body and fell outside. He was taken to the court room and soon
thereafter he was removed to Dr. Nedkarni's treatment by Dr. Purnima Nadkarni.
She advised to take him to Kasturba hospital at Valsad for further treatment.
At about 12.30 p.m he was taken to the said hospital.
A message had meanwhile call.
sub-inspector the complaint of the victim. Thereafter the Sub-inspector
conveyed the message to the executive Magistrate who went to the hospital at
about 2.00 p.m. and recorded the dying declaration
of the injured. In the said dying declaration as well as in a statement made by
the deceased in Dr. Nadkrani's hospital, the name of the appellant was
mentioned as the person who shot the victim.
doctor started the operation at about 3.30 p.m. and completed the same at about 7.25 p.m But soon thereafter the victim collapsed and died at about 7.30 p.m.
was found that the appellant and the other accomplice were in the court room of
the Judicial MAGISTRATE (F.C.), Valsad for attending a case under police bandobest.
appellant and his accomplice were taken to custody and interrogated by the
were arrested at about 8.30
p.m. in the police
station at Valsad. According to the prosecution on 4.8.84 a judgment was to be
delivered by the J.M.F.C, Valsad in a case wherein the appellant and his
accomplice were accused and they were present in Court for that purpose and
that the police had given them bandobest as they apprehended breach of peace.
Both had left the court premises around 11.00 a.m. and returned to the Court at 12.30 p.m. They were seen to be coming on a moter-cycle and parking the same in
the compound. As it was raining on that day the clothes of the accused were
also found wet.
prosecution examined for eye witnesses three of whom were advocates who went to
the Court at Pardi alongwith the deceased in the same car and the fourth being
the driver of that car. Dr. Purnima Nadkarni who gave the preliminary treatment
to the deceased soon after the incident and Dr. Harit Desai who operated on the
deceased were also examined as PWs 13 and 12 respectively. The secretary of the
deceased who had taken him to the hospital in a tempo was examined as PW 7. The
Head Constable who was posted alongwith other policemen for the bandobast in
the Court at Valsad was examined as PW.16. The two statements given by the
deceased in the hospital were marked as Ex.44 and Ex.53 On a consideration of
the entire evidence on record, the Sessions Judge held that the prosecution had
established its case against the accused beyond any doubt and convicted them
under Section 302 and 34 I.P.C. The appellant was convicted also under Section
25-A of the Arms Act. The appellant was sentenced to life imprisonment and
payment of fine of Rs.
for the offence under Section 302 read with Section 34 I.P.C. For the other
offence he was sentenced to undergo RI for six months concurrently. The accused
preferred and appeal before the High Court. During the pendency of the appeal
and other accused Dilip Bhagwan Rai expired. On an analysis of the evidence,
the High Court concurred with the view expressed by the Sessions Judge and
confirmed the conviction and sentence. The appellant has preferred this appeal
by Special Leave.
Learned counsel for the appellant has vehemently argued that the case of the
prosecution is wholly improbable and that it has not been proved by
to him, when the accused were admittedly present in the court of JMFC, Valsad
under the bandobast of the police they could not have gone to the court at Pardi
and committed the offence as alleged by the prosecution. It is argued that the
version of the Head Constable PW 16 is totally unacceptable on the face of it,
in the absence of any record to support the same and he should not have been
believed by the courts below.
do not find any merit in this contention. the evidence of PW 16 is quite
natural and in the circumstances of the case there could not have been any
record for the absence of the accused for about an hour and a half from the
premises of the court at Valsad. The Trial Court as well as the High Court have
discussed his evidence at length and considered the present contention in the
not find any infirmity in the said discussion. We have no reason whatever to
differ from the courts below and disbelieve PW 16.
second contention of learned counsel for the appellant is that all the four
eye-witnesses are interested persons and they are not worthy of any credence.
There is nothing on record to show how the said witnesses were interested to
speak against the accused. Nothing has been placed on record to indicate any
enmity or motive on their part to speak against the accused. The mere fact that
three of them were advocates and the fourth was the driver of the deceased is
not sufficient to dub them as interested persons. There is no doubt whatever
that the said witnesses were in the same car by which the deceased went to the
court at Pardi and they were all present at the scene of occurrence. We do not
find any merit in this contention
next contention is that the High Court was in error in refusing permission to
the appellants to examine an independent eye witness by name Kirti Ratilal Rajput
and an adverse inference should have been drawn against the prosecution for not
examining the said person in court as a witness. During the pendency of the
appeal in the High Court, the appellant filed an application for examining Kirta
Ratilal Rajput as a court witness alleging that he was an independent eye
witness and his statement was recorded in the course of investigation under
Section 162 of the Cr.P.C, but the prosecution. We are unable to accept this
contention. The High Court had found that the statement made before the police
by the said Kirti Ratilal Rajput was not against the prosecution and in no
sense or manner in favour of the appellant The application for examining him
was made after a lapse of seven years from the date of occurrence, some time
before the hearing of the appeal though the appeal was itself pending from
1985. The High Court has rightly rejected the application filed by the
fourth contention of learned counsel is that the eye witnesses did not identify
the accused and could not have identified him. He placed reliance on the
judgment of this Court in State of Orissa versus Brahmananda, AIR 1976 SC 2488
wherein it was held that if in a murder case the entire prosecution depended on
the evidence of the person of a person claiming to be an eye witness and the
said witness did not disclose the name of the assailant for a day and a half
after the incident and the explanation offered for such non-disclosure was
unbelievable, such non-disclosure was a serious infirmity which destroyed the
credibility of the evidence of the witness and that the High Court was correct
in rejecting it as untrustworthy. There is no merit whatever in the contention.
All the eye witnesses had known the appellant for more than three years prior
to the occurrence. Their presence at the scene of occurrence was quite natural
and established. They had seen the appellant running away from the stops of the
court room. The courts below were not in error in accepting their testimony.
The above ruling cited by the learned counsel has no application in the facts
of this case his contention is rejected.
fifth contention is that there is discrepancy between the medical evidence and
the ocular evidence. It is contended by the learned counsel that the medical
report shows that firing could not have taken place from a short distance and
the person, who fired the pistol should have been far away and therefore the
witnesses could not have identified the said person. It is pointed out by the
High Court there cannot be a definite opinion regarding the distance from which
shot was fired. As per the evidence of PW 22, a Senior Scientific Officer in
Forensic Science Laboratory, Ahmedabad, on examination of the skin samples, it
could not be said with certainty whether the firing was from a particular
distance. According to him, the blackening of the skin would be there in a case
of pistol or revolver fired from the distance of about 2 feet to 3 feet while
powder marks could be detected even from a distance of 20 feet in cases of
those two weapons. He has also stated:
do not agree that as the range increases tatooing from the powder more spare
until no trace of powder marks are found which normally beyond a yard."
Thus there is no discrepancy between the medical evidence and ocular evidence. this
contention is also rejected.
The last argument is that the dying declaration given by the deceased should
not have been accepted as the name of the accused was introduced therein at the
instance of his relatives and it was not mentioned by the deceased on his own.
Learned counsel for the appellant refers to a statement of Dr. Hirabhai PW 12
to the affect that the name of the accused was given by a relative and not by
the deceased. It is, therefore, contended that the deceased did not mention the
name of the appellant on his own in Ext.44.
is no substance in this contention. Even before the deceased was taken to Kasturba
hospital at Valsad, he was given preliminary treatment by Dr. Purnima Nadkarni.
In her presence, the deceased had mentioned the name of the appellant as the
person who had fired the bullets at him.
deposition in this regard is very clear and has not been shaken in any manner
in the cross examination. We have no hesitation to affirm the view expressed by
the courts below accepting the reliability of the dying declaration of the
Learned counsel for the appellant has placed reliance on the judgment in Milkivet
Singh versus State of Rajasthan
AIR 1981 SC 1578. In
that case, the dying declaration was not attested by the wife of the deceased
or the doctor present in the hospital. The court found that it was a matter of
concoction. Besides, there was inconsistency between the medical and ocular
evidence. The court held that the conviction of the accused was unsustainable and
reversed the judgment of the High Court. the facts in that case are entirely
different and the ruling has no bearing in the present case.
a consideration of all the materials on record we have no hesitation to affirm
the concurrent judgment of the courts below and dismiss this appeal.