PETITIONER: ABDUL ISE SULEMAN Vs. RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT14/02/1994 BENCH: RAY, G.N. (J) BENCH: 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: HEADNOTE: JUDGMENT:
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
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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
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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.
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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
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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
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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
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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
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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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