Idrish
Bhai Daudbhai Vs. State of Gujarat [2005]
Insc 69 (31 January
2005)
P. Venkatarama.
Reddi & S.B. Sinha S.B. Sinha , J :
The
Appellant herein was convicted for commission of an offence punishable under
Section 302/34 of the Indian Penal Code ('IPC for short) and had been sentenced
to undergo rigorous imprisonment for life as also a fine of Rs.500/- and in
default thereof to undergo additional three months' simple imprisonment. He was
prosecuted along with three others for sharing common intention for causing
death of one Siddique Ahmed Patel and causing simple hurt with sharp cut weapon
to Yusuf Adam Patel (PW-3).
At
about 5.45 p.m. on 29.11.1993, the deceased was
allegedly going to a mosque for offering prayer (Namaz). When he was passing by
the house of the accused persons situated at village Sarod, all the four
accused persons were standing there. A quarrel ensued between them, when the
deceased Siddique was asked as to why he had entered into a transaction of the
house instead of land to which he answered that he had entered into a
transaction with his maternal uncle, whereupon. the Appellant herein allegedly
inflicted a stick blow on his head, as a result of which he fell down. Accused
No.1 Bilal Ahmed Ibrahim Kabha thereafter inflicted a knife blow on his chest. Yusuf
Adam Patel tried to intervene and in the process he was also injured; a knife
injury on him was caused by the Accused No.2. The Accused No.3, the mother of
the Appellant herein, was said to have a sickle in her hand. The deceased and
the injured were said to have been taken to the referral hospital at Jambusar,
where Siddique was declared dead and the injured was asked to go to Baroda
Hospital. A First Information Report was lodged in this behalf by one Mehmood
Adam Patel.
On
completion of investigation, a charge-sheet was filed for offences punishable
under Section 302 IPC, Section 302 read with Section 34 IPC, Section 324 IPC,
Section 324 read with Section 34 IPC and Section 135 of the Bombay Police Act.
Before
the learned Sessions Judge nine witnesses were examined on behalf of the
prosecution. The learned judge while passing a judgment of acquittal in favour
of the Accused No.3, convicted Bilal Ahmed for commission of an offence
punishable under Section 302 IPC. The Accused No. 2 Ahmed Ibrahim Kabha was
found guilty for commission of offence punishable under Section 302/34 IPC as
also under Section 324 IPC, whereas the Appellant herein was found guilty of
commission of offence punishable under Section 302/34 IPC, whereagainst an appeal
was filed.
During
the pendency of the appeal, the Accused No. 2 Ahmed Ibrahim Kabha expired and
as a result his appeal stood abated. The High Court of Gujarat by reason of the
impugned judgment dismissed the appeals preferred by the Appellant as also Bilal
Ahmed. The Special Leave Petition filed by Bilal Ahmed appears to have been
dismissed by this Court by an order dated 6.2.2004.
Mr. K.
Radhakrishanan, the learned Senior Counsel appearing on behalf of the
Appellant, would take us to the First Information Report as also the
depositions of the witnesses pointing out contradictions and inconsistencies
contained therein. The learned counsel would contend that even from the Autopsy
of Dr. Raghunandan (PW-2) it would appear that he had not noted the colour of
the wound and, thus, was not in a position to state the time of the injury with
certainty, nor did he note the exact place of skull vault where the injury had
occurred. It was argued that the injury allegedly caused by the Appellant
herein with a stick on the head of the deceased had not been noticed by the
Investigating Officer in the Inquest Panchnama. The learned counsel would,
therefore, urge that the prosecution has not been able to prove beyond any
reasonable doubt the role played by the Appellant herein in the incident, nor
the alleged intention shared by the Appellant and other co-accused for causing
the death of the deceased Siddique, can be said to have been proved.
Mr. Yashank
Adhyaru, learned Senior Counsel appearing on behalf of the State of Gujarat, on
the other hand, would contend that though certain discrepancies exist in the
statements of the witnesses vis-`-vis the First Information Report and the Post
Mortem Report, there is no reason to discard the evidences of the three
witnesses, who have proved the prosecution case as against the Appellant.
From a
perusal of the First Information Report lodged by PW-1, it transpires that
before the alleged incident took place altercations took place between the
deceased and the accused persons as regard transaction of a land/house
belonging to the deceased. It is stated that the Accused No.1 Bilal Ahmed and
his father Ahmed Ibrahim came with knives in their hands and Bibiben Ahmed, the
mother of the Appellant, came with a sickle.
"Getting
excited all of a sudden", Bilal Ahmed is said to have given a knife blow
on the chest of the deceased and Ahmed Ibrahim is said to have given a knife
blow on the back of Yusuf Adam Patel and Bibiben Ahmed allegedly jumped upon
both these persons shouting "Beat..Beat". Meanwhile, the Appellant
herein had come out taking a stick and rushed towards them saying "BeatBeat".
The eye witnesses to the occurrence, viz. PW1, PW-3 and PW-5, on the other
hand, in their respective depositions before the court stated that it was the
Appellant who gave a stick blow on the head of the deceased whereafter only the
injuries were inflicted by the other accused.
The
sequence of events as contained in the First Information Report, thus,
materially differs from the statements made by the prosecution witnesses. The
First Information Report does not even contain any statement to the effect that
the Appellant had inflicted any injury whatsoever with the stick as was alleged
by the prosecution witnesses before the learned Sessions Judge. The first
informant who examined himself as PW-1 in his cross-examination accepted that
in his complaint he did not allege that he was going to pray at the mosque, nor
did he say that Siddique fell down after he was hit by a stick. He further
asserted that he saw the incident from a distance of about 15 feet. He accepted
that injured Yusuf was his brother whereas his wife is the sister of the
deceased Siddique and the deceased Siddique is the son of his uncle, and his
wife is also the daughter of his uncle. In paragraph 5 of his deposition,
however, he alleged that when the Appellant hit the deceased Siddique with a
stick, Siddique fell flat and at that time only he and Yusuf were present. He
thereafter alleged that the Accused Nos.1 and 2 were also present emphasizing
that they did not go to the house to get knives but he changed the story
immediately by stating that the accused had come out of the house with knives.
He further stated that he saw the accused persons going into the house to get
knives and he thought that they would stab. He, however, immediately thereafter
stated "after hitting with the stick, he was stabbed immediately". He
reiterated:
"It
is true that I have not stated in the complaint that IDDISH hit SIDDIQUE on the
head with a staff. And I have not stated that the other accused came after
IDDISH hit him. I have not stated in the complaint that SIDDIQUE fell down
after he was hit with the staff. I have not stated in the complaint that IDDISH
had done any illegible (sic) act. I have also not stated that BIBIBEN injured
anybody. It is true that BIBIBEN is present in the court and she was with the
three male membe4rs. I do not know that if BIBIBEN was hit by a blow of the
staff" It is difficult to place any reliance on the statement of the said
witness as regards the involvement of the Appellant herein in the incident.
PW-2,
Dr. Raghunandan, who performed autopsy on the dead body of the deceased Siddqiue
on 30.11.1993, found the following external injuries on his person :
"1.
there was one cut wound on the chest near the 7th rib 2 cm by = cm deep up to
cavity. It was between the two lungs and it was 27 cm below the rib cage bone
and 7.5 cm away in a slant manner. In this injury the muscles were cut. And the
casing of the heart was injured with a wound of 1.5 cm by .25 cm. And the outer
covering of the heart was cut. This wound was deep up to the left cavity of the
heart.
2. there
was a hematoma measuring 4 cm by 3 cm on the center of the skull. These wounds
were prior to the death." In his cross-examination, he admitted that the colour
of injury no.2 was not noted in the report which would have enabled him to
ascertain the time of the injury nor did he note the exact place in the skull
vault where the injury had occurred.
In the
inquest panchnama, no head injury on the dead body had been noted.
PW-3
is Yusuf who is an injured witness. In his deposition, he asserted that the
Appellant had hit the deceased on the head from behind with a stick as a result
whereof he swooned and fell down; whereafter Bilal Ahmed who was standing next
to the Appellant stabbed Siddique in the chest and when he tried to rescue him,
Ahmed Ibrahim stabbed him with a knife in the waist on the left side, whereupon
only Bibiben came with a sickle shouting to kill them. In his
cross-examination, however, he accepted that there had been verbal heated
exchanges between Bilal Ahmed and Siddique but although at that time the people
were moving on the road, he did not see anybody except the deceased and the
accused persons. In his cross-examination, he admitted that the house of the
Appellant is not near the mosque and it is at a far off place.
PW-5 -
Abdulla, is a vegetable merchant. He was also going to mosque to offer 'namaz'
after closing his shop nearby. He stated that when he reached near the house of
the accused persons, the Appellant Idrish was having a stick and Bilal Ahmed
was having an open knife, he had seen Siddique and Yusuf walking near the cross
roads. He alleged :
".At
that time Bilal had started abusing Siddik and Bilal was staying, "Why did
you enter into transaction of house for my brother?" At that time Siddik
had told, "I had not entered into transaction for your brother." I
have entered into transaction with your maternal uncle Abbas Daud Bhatiya. At
that time Idrish Daud had got excited and had given a blow on the head of Siddik
with a long and thick staff from behind as Siddik would have hardly walked two
steps ahead. Therefore, on accound of giddiness Siddikbhai had fallen down flat
on the ground.
At that
time all of a sudden Bilal had run and given a blow of knife in his hand on the
left portion of the chest of Siddik. At that time as Yusufbhai Adam Patel tried
to intervenue, Ahmed Ibrahim Kabha who was standing nearby and was having a
knife in his hand had given a knife blow on left side back to Yusuf. At that
time Bibiben who was standing nearby and was having a sickle in her had had
gone near Siddik and had attacked upon him and had started shouting that put
these people to death" The statements of the witnesses, as noticed
hereinbefore, vis-`-vis the allegations made in the First Information Report
are contradictory and/or inconsistent with each other. Whereas in the First
Information Report nothing has been mentioned about the Appellant's role as regard
his hitting the deceased with a stick on his head, even the sequence of events
is different from that stated by PW-1 in his deposition before the court.
The
statements made in the First Information Report in a case of this nature must
be given due importance. Admittedly, there was a dispute with regard to a
transaction of a land/house. PW-1` categorically stated that the accused
persons became agitated only after the Appellant allegedly hit the deceased
with a stick and the Accused Nos.1 and 2 went into their house and came back
with knives which stands contradicted by the statement of PW-5 who alleged that
both the Appellant and Accused No.1 were standing by the side of the road with
a stick and open knife in their hands.
In the
First Information Report only one overt act is attributed to the Appellant that
is his exhortation "maro maro". Such exhortation by itself may not
give rise to an inference of sharing a common intention to cause death of the
deceased Siddqiue and to cause hurt to PW-5. Such exhortation as alleged in the
F.I.R. took place only after injuries had been inflicted by the Accused Nos. 1
and 2. No injury was inflicted on the deceased or PW-3 after the alleged
exhortation.
The
prosecution has also failed to bring any materials on records to show that
there had been any pre-concert or pre-arranged plan so as to hold that the
Appellant had any common intention to commit the alleged offence.
The
First Information Report itself suggests that the accused persons became
excited all of a sudden. It has also come on records that the Accused No.3 Bibiben
had also sustained injuries. The learned Sessions Judge himself has found that
prosecution has failed to prove her involvement in the matter. If the Appellant
exhorted after infliction of injuries were completed, he by no means can be
held guilty of sharing a common intention with other accused to commit murder
of the deceased or cause injuries to PW-3. On the other hand, if he was the
first person to cause injury to the deceased by inflicting a blow on his head
by a stick, it is wholly unlikely that he would imagine that the Accused Nos.1
and 2 would go back to their house to bring the knives and inflict injuries to
the deceased and PW-3 and, thus, a case of forming common intention at that time
must be ruled out. It is, therefore, not a case where a common intention
amongst the accused persons can be said to have been existing either from the
beginning or was formed at the spur of the moment. Exhortation, furthermore, by
itself is not enough to prove common intention on the part of an accused.
In
State of Orissa vs. Arjun Das Agarwal and Another
[AIR 1999 SC 3229], this Court stated :
"Regarding
accused-respondent Arjuna Das Agarwal we find from the evidence on record that
this accused neither went inside the house of the deceased nor took any part in
the commission of the murder. He only instigated by shouting the other accused
persons. There is nothing in evidence to show that due to his instigation more
blows were given by the accused persons.
Therefore,
no inference can be drawn that this accused- respondent had common intention of
causing death of the deceased or that he actually participated in the criminal
act. Therefore, High Court rightly acquitted this accused." What would
form a common intention is now well-settled. It implies acting in concert,
existence of a pre-arranged plan which is to be proved either from conduct or
from circumstances or from any incriminating facts.
In Ramashish
Yadav and Others vs. State of Bihar [AIR
1999 SC 3830], this Court stated :
"It
requires a pre-arranged plan and it presupposes prior concert. Therefore, there
must be prior meeting of minds. The prior concert or meeting of minds may be
determined from the conduct of the offenders unfolding itself during the course
of action and the declaration made by them just before mounting the attack. It
can also be developed at the spur of the moment but there must be
pre-arrangement or premeditated concert.
[See
also Badruddin vs. State of U.P. (1998) 7
SCC 300 and Ramashish Yadav vs. State of Bihar (1999) 8 SCC 555 referred to in Balram Singh and Another vs. State of Punjab (2003) 11 SCC 286,] .
As
noticed hereinbefore, even the inquest panchnama did not refer to the head
injury although presence or absence of injuries on all other parts of the body
of the deceased had been noticed. Furthermore, eye-witnesses are also
interested witnesses.
For
the reasons aforementioned, we are of the opinion that the it is a fit case
where the benefit of doubt should be given to the Appellant herein.
The
appeal is, therefore, allowed and the impugned judgment is set aside. If the
Appellant is in custody, he shall be set at liberty forthwith, if not wanted in
connection with any other case.
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