Appeal against the dismissal of appeal in section 302 IPC case
2. The instant criminal appeals have been filed by the appellants namely, Allarakha Habib Memon, Amin @ Lalo Aarifbhai Memon and Mohmedfaruk @ Palak Safibhai Memon, for assailing the common judgment dated 18th February, 2019, passed by the Division Bench of High Court of Gujarat at Ahmedabad dismissing the Criminal Appeal Nos. 94 of 2015, 450 of 2015 and 563 of 2015, preferred by the accused appellants and affirming the judgment and order dated 13th October, 2014 passed by the Court of Additional Sessions Judge, Anand, in Sessions Case No. 84 of 2011(hereinafter being referred to as ‘trial Court’). The trial Court had convicted the appellants for offence punishable under Section 302 read with Section 120B of the Indian Penal Code, 1860(hereinafter, referred to as ‘IPC’) and sentenced them to imprisonment for life with fine of Rs. 1,000/- each, in default whereof, to undergo rigorous imprisonment for a period of three months. At the same time, the appellants were acquitted of the charge for the offence punishable under Section 323 IPC.
Brief facts
3. The accused appellants are the residents of New Memon Colony, Bhalej Road, Anand. There was some issue regarding the supply of water in the residential blocks where the accused Mohmedfaruk @ Palak was residing. On 3rd May 2011, a meeting was convened in this regard wherein, an altercation flared up between the accused Mohmedfaruk @ Palak and Mohammad Sohail. It is alleged that Mohmedfaruk @ Palak hurled abuses and used foul language against Mohammad Sohail, who in turn intimated the society members that he may be relieved from the duty of supplying water in the society. A meeting with respect to the intimation given by Mohammad Sohail was convened by the members of the society, wherein Mohammad Sohail insulted accused Mohmedfaruk @ Palak, who started carrying a grudge against Mohammad Sohail on this account. Resultantly, Mohmedfaruk @ Palak conspired with the accused Amin @ Lalo Aarifbhai Memon and Allarakha Habib Memon and hatched a plan to eliminate Mohammad Sohail. As per the prosecution, acting in furtherance of the above conspiracy, Mohmedfaruk @ Palak collected arms like gupti, daggers etc., and concealed the same in the dicky of his scooter. On 4th May, 2011 at around 8:00 pm, Mohammad Sohail, along with his first cousin namely, Mohammad Arif Memon(the first informant), had proceeded to Shah petrol pump on a two wheeler, where they got the vehicle refuelled, and then both proceeded towards their residence, by taking a turn towards Bhalej overbridge. On the way, the accused Mohmedfaruk @ Palak stopped them on the pretext of asking mobile number of one Mohammad Hussain. Taking advantage of the situation, the accused appellants launched an indiscriminate assault upon Mohammad Sohail with sharp edged weapons, causing injuries on his head and chest regions. Mohammad Arif Memon tried to intervene, upon which he was given a push by Mohmedfaruk @ Palak and fell down. Mohmedfaruk @ Palak took out a big knife and inflicted a blow with a sharp weapon on the back of Mohammad Sohail. Upon hearing the noise of the commotion, people from nearby gathered at the place of occurrence whereupon the accused appellants fled away, abandoning their weapons at the crime scene. Mohammad Sohail having been severely injured was shifted to a hospital, where he was declared dead.
Registration of FIR
4. Incorporating the above allegations, the first informant Mohammad Arif Memon(PW-11), first cousin of Mohammed Sohail(deceased) lodged a complaint(Exhibit P-79) being CR No. 141 of 2011 on 4th May, 2011 which came to be registered as FIR at Anand Town Police Station for the offences punishable under Sections 302 and 323 IPC read with Section 120B IPC. The investigation of the case was assigned to Dhananjaysinh Surendrasinh Waghela, Police Inspector(PW-18)(hereinafter being referred to as ‘Investigating Officer’).
Cause of death was due to shock of multiple injuries all over the body
5. Inquest panchnama(Exhibit P-25) was prepared and the dead body of Mohammad Sohail was sent for postmortem. Dr. Swapnil(PW1) conducted autopsy taking note of 29 injuries all over the body of the deceased-Mohammad Sohail. He issued the post-mortem report(Exhibit P-12) opining that the cause of death of Mohammad Sohail was due to shock attributed to multiple injuries all over the body. The first informant-Mohammad Arif Memon(PW-11) was medically examined by the Medical Officer, Dr. Arvindbhai(PW-2) who after examining him, issued a medical certificate(Exhibit P-17).
Final report filed under sections 302, 323 and 120B IPC
6. The Investigating Officer (PW-18) carried out the usual investigation and prepared a site plan (Exhibit P-27) of the place of occurrence. The accused appellants were arrested after about five days from the date of incident. Clothes worn by the accused appellants were collected by drawing panchnama (Exhibit P-40). The Investigating Officer (PW-18) reconstructed the crime scene at the instance of all accused-appellants and drew demonstration panchnama (Exhibit P-50). The effected recovery of one big knife at the instance of accused Mohmedfaruk @ Palak; the blood-stained clothes of the deceased and the recovered weapons were forwarded to the Forensic Science Laboratory (in short ‘FSL’) for chemical analysis. The Investigating Officer (PW-18) also collected call detail records from service provider i.e. Vodafone. After conclusion of the investigation, a charge was filed against the accused appellants for the offences punishable under Sections 302, 323 and 120B IPC.
Trial
7. The offence under Section 302 IPC being exclusively triable by the Court of Sessions, the case was committed and made over for trial to the Court of Additional Sessions Judge, Anand, where it came to be registered as Sessions Case No. 84 of 2011. Charges were framed against the accused appellants for the offences punishable under Sections 302, 323 and 120B IPC. The accused-appellants pleaded not guilty and claimed trial. The prosecution examined 18 witnesses and exhibited 131 documents in order to bring home the charges. On being questioned under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’) and upon being confronted with the allegations as appearing in the prosecution case, the accused appellants denied the same and took a categorical stance that they had been falsely implicated in the case. However, no evidence was led in defence.
Conviction and dismissal of appeal by the Hon’ble High Court
8. After hearing the arguments put forth by the prosecution and the defence counsel and upon appreciating the evidence available on record, the trial Court, vide judgement and order dated 13th October, 2014 convicted and sentenced the accused appellants as mentioned above. The judgment of conviction and the order of sentence was challenged by the accused appellants before the Division Bench of Gujarat High Court by filing separate criminal appeals, which came to be rejected vide a common judgment dated 18th February, 2019, which has been subjected to challenge in the instant batch of appeals by special leave.
Police constable shown as independent witness
15. Before dealing with the evidence of the first informant, Mohammad Arif Memon(PW-11), we would like to allude to the testimony of the Police Constable, Demistalkumar(PW-12) who is indisputably an independent witness having no interest either in the complainant party or the accused party. The relevant extracts from the evidence of Demistalkumar(PW-12) are reproduced hereinbelow for the sake of ready reference: –
“…………….”
16. Demistalkumar(PW-12) was portrayed by the prosecution to be an eyewitness of the incident. He categorically stated that on 4th May, 2011 at 8:30 pm, he came to know that a scuffle had taken place opposite the Radha Swamy chamber and hence, he went to the said location. There, he found one person lying down in a bleeding condition near a garden adjacent to the Mahendar Shah petrol pump. Three assailants brandishing weapons like knife and gupti were approaching to beat the person. On seeing Demistalkumar(PW-12), two of the three assailants threw away their weapons and ran away towards the bridge. Thereafter, the injured was boarded on to a rickshaw and was sent for treatment. His relatives came and the weapons were deposited at the police station.
Police witness admitted that someone told him about the incident
17. In cross-examination, Demistalkumar(PW-12) admitted that someone told him about the untoward incident whereupon he proceeded towards the road and within three to four minutes, people gathered at the crime scene. He stayed with the injured for about three to four minutes. One man accompanied the injured in the rickshaw. The witness also helped in placing the injured in the rickshaw and his clothes got stained with blood in this process. After the injured person had been taken to the hospital, he proceeded to the Anand Town Police Station carrying the two weapons abandoned by the offenders with him and reached there at 9:15 pm. However, he did not lodge any complaint of the incident. The witness explained the reason for not giving the complaint stating that a person was already sitting at the police station at 9:15 pm for giving the report.
Police witness did not inform that the informant was present at the soc
18. Having carefully sifted through and analysed the evidence of Demistalkumar(PW-12), we find that he did not utter a single word about the presence of the first informant, Mohammad Arif Memon(PW-11) at the scene of occurrence. He claimed to have picked up two weapons used by the accused, i.e., one big knife and a gupti and had presented them at the police station around 9:15 pm on the very day of the incident. He also stated that he did not submit any report/complaint of the incident because he saw that someone was already sitting at the police station at 9:15 pm for giving the report/complaint.
Police constable evidence is improbable and totally unacceptable
19. We find it improbable and totally unacceptable that a police constable had seen the incident and had also brought the crime weapons to the police station and yet his statement would not be recorded and the factum of presentation of weapons would not be entered in the daily diary(roznamcha) of the police station. Demistalkumar(PW-12) explained in his cross-examination that he did not give a report about the incident because he noticed the presence of someone at the police station who was sitting there from 9:15 pm to give the report. However, as per the record, no report was admittedly presented at the police station by any person from the complainant side. No police personnel deployed at the Anand Town Police Station corroborated the version of Demistalkumar(PW-12) that someone had come to the police station at 9:15 pm for giving a report of the incident.
First version of the incident narrnated by the police is required to be treated as fir and the complaint lodged by the informant is hit under section 162 Cr.P.C
21. There cannot be any doubt that the first version of the incident as narrated by the Police Constable, Demistalkumar(PW-12) would be required to be treated as the FIR and the complaint lodged by Mohammad Arif Memon(PW-11) would be relegated to the category of a statement under Section 161 CrPC and nothing beyond that. The same could not have been treated to be the FIR as it would be hit by Section 162 CrPC. Evidently thus, the prosecution is guilty of concealing the initial version from the Court and hence, an adverse inference deserves to be drawn against the prosecution on this count.
Dock identification after two and half years is absolutely unacceptable
23. Demistalkumar(PW-12) was also made to identify the accused persons in the dock, but that is another story which we shall consider at a later stage. The witness identified the accused appellants as the offenders. However, we find that the lame attempt by PW-12 to make dock identification of the accused in his deposition recorded after nearly two and a half years of the incident is absolutely flimsy and unacceptable. The witness had not given out either the names or the description of the features of the accused in his police statement and thus, if at all, the prosecution was desirous of getting the accused identified at the hands of this witness, then he should have been made to identify the accused persons in a Test Identification Parade during the investigation. Thus, the identification of the accused by Demistalkumar(PW-12) for the first time in the dock is totally unbelievable and unacceptable.
Informant went to the police after meeting the doctor and deposed that a discussion was held with the relatvies
25. In cross-examination, the first informant(PW-11) stated that he reached the Krishna Medical Hospital, Karamsad at around 9:00 pm. He did not take any treatment for the injuries sustained by him in the incident. By the time he reached Krishna Medical Hospital, his uncle Mohammed Iqbal Memon, father of the deceased, was already present there and he told the doctors that the attack was made by sharp weapons. They proceeded from the hospital to the Anand Town Police Station which is at a distance of about 10 kms from the hospital and he gave the complaint at the Police Station. No police personnel accompanied him when he proceeded from Krishna Hospital. When he reached the hospital, he noticed the injuries suffered by the deceased. They went to the police after meeting the doctor. The witnesses referred to in the complaint were present with him when he drafted the complaint which was submitted at the Police Station about an hour, after his companions had reached there. He admitted that before giving the complaint, a discussion was held amongst the relatives as to the manner in which the complaint was to be drafted and lodged. However, the witness explained that he drafted the complaint describing the incident as he had seen it. A pertinent suggestion was given to the witness(PW-11) in cross-examination that he could not describe the number and location of the injuries caused to the deceased because he was not present on the spot and did not see the incident. He denied the said suggestion. He admitted that the factum of his going to the petrol pump along with the deceased was known only to him, Mohammad Sohail(deceased) and Mehboobbhai. Approximately, five minutes after the assault, the injured was taken to the hospital. He was bleeding from his head. He was lifted and made to sit in the rickshaw. However, from the persons who lifted the injured, only Irfanbhai Memon received blood stains on his clothes. The witness(PW-11) admitted that neither he nor any other person received blood stains on their clothes or elsewhere. He was confronted with his previous version and admitted that he did not mention in the complaint(Exhibit P-79) that he had received an injury on his head in the incident. Going by the above version of the witness(PW-11), manifestly, the complaint which he gave at the police station never saw the light of the day and seems to have been intentionally withheld. Furthermore, PW-11 categorically stated that he signed the complaint on the morning after the incident and pursuant to the site inspection by the police, which creates a genuine doubt in the mind of the Court that the FIR(Exhibit-79) seems to have been created at a later point of time.
If police officer does not record the fir on receipt of information then it would hit by section 162 Cr.P.C
29. This Court in the case of State of A.P. v. Punati Ramulu and Others [1994 Supp (1) SCC 590] held that when the police officer does not deliberately record the FIR on receipt of information about cognizable offence and the FIR is prepared after reaching the spot after due deliberations, consultations and discussion, such a complaint cannot be treated as FIR and it would be a statement made during the investigation of a case and is hit by Section 162 CrPC. The relevant paras of the judgment in this regard are reproduced hereinbelow: –
“5. According to the evidence of PW 22, Circle Inspector, he had received information of the incident from police constable No. 1278, who was on ‘bandobast’ duty. On receiving the information of the occurrence, PW 22 left for the village of occurrence and started the investigation in the case. Before proceeding to the village to take up the investigation, it is conceded by PW 2 in his evidence, that he made no entry in the daily diary or record in the general diary about the information that had been given to him by constable 1278, who was the first person to give information to him on the basis of which he had proceeded to the spot and taken up the investigation in hand. It was only when PW 1 returned from the police station along with the written complaint to the village that the same was registered by the Circle Inspector, PW 22, during the investigation of the case at about 12.30 noon, as the FIR, Ex. P-1. In our opinion, the complaint, Ex. P-1, could not be treated as the FIR in the case as it certainly would be a statement made during the investigation of a case and hit by Section 162 CrPC. As a matter of fact the High Court recorded a categorical finding to the effect that Ex. P-1 had not been prepared at Narasaraopet and that it had “been brought into existence at Pamaidipadu itself, after due deliberation”. Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues. Though we agree that mere relationship of the witnesses PW 3 and PW 4, the children of the deceased or of PW 1 and PW 2 who are also related to the deceased, by itself is not enough to discard their testimony and that the relationship or the partisan nature of the evidence only puts the Court on its guard to scrutinise the evidence more carefully, we find that in this case when the bona fides of the investigation has been successfully assailed, it would not be safe to rely upon the testimony of these witnesses either in the absence of strong corroborative evidence of a clinching nature, which is found wanting in this case.” (emphasis supplied)
Police and the informant are doubtful witnesses
31. In addition to all the above noted inconsistencies and contradictions in the evidence of the prosecution witnesses, this Court has to be conscious about the deposition of Demistalkumar(PW-12) who has categorically stated that when he reached the crime scene, he saw only the injured lying on the road with the three assailants brandishing sharp weapons towards Mohammed Sohail, and about four minutes later, some other people came there. Thus, the evidence of Demistalkumar(PW-12) makes the very presence of the first informant, Mohammad Arif Memon(PW-11) at the crime scene doubtful.
Witnesses who had taken the deceased to the hospital were not examined
34. The first informant, Mohammad Arif Memon(PW-11) also stated that after Mohammad Sohail had been assaulted by the accusedappellant with sharp weapons and had fallen on the ground, two persons namely Mehboob Abdul Rehman Memon and Irfanbhai Memon also came at the spot. The complainant and Irfanbhai Memon took Mohammad Sohail to the Nagar Palika Hospital for treatment. The said Mehboob Memon and Irfanbhai Memon were not examined by the prosecution even though they were most material witness for unfurling a true picture of the story which creates further doubt on the truthfulness of the prosecution case.
It is highly improbable that the accused were already knew that the deceased would come to the petrol bunk on that time
37. Another important aspect which was elicited in the cross examination of (PW-11) is that the fact regarding the deceased having gone to the petrol pump for taking fuel was known only to two of them and one Mehboob Abdul Rehman Memon. In this background, it is highly improbable that the accused persons would have known in advance that Mohammad Sohail would be available at the petrol pump at that particular moment and that they got time and opportunity to conspire together and made extensive preparations for launching an assault on the victim by taking advantage of his presence at the petrol pump. Thus, we are of the view that the testimony of the first informant, Mohammad Arif Memon(PW-11), the star witness of prosecution, is not trustworthy and reliable as the same is contradicted on material aspects by numerous material facts and circumstances which we have discussed above. There is no option but to discard the testimony of the first informant, Mohammad Arif Memon(PW-11).
Confession given to the doctor was in the presence of police hence inadmissible as per section 26 Evidence Act
41. We find that these so-called confessions are ex-facie inadmissible in evidence for the simple reason that the accused persons were presented at the hospital by the police officers after having been arrested in the present case. As such, the notings made by the Medical Officer, Dr. Arvindbhai(PW-2) in the injury reports of Mohmedfaruk @ Palak and Amin @ Lalo would be clearly hit by Section 26 of the Indian Evidence Act, 1872(hereinafter being referred to as ‘Evidence Act’). As a consequence, we are not inclined to accept the said admissions of the accused as incriminating pieces of evidence relevant under Section 21 of the Evidence Act. The circumstance regarding identification of place of incident at the instance of the accused is also inadmissible because the crime scene was already known to the police and no new fact was discovered in pursuance of the disclosure statements.
Bloodstained weapon cannot form basis of conviction unless the same was connected with the murder
43. The trial Court as well as the High Court heavily relied upon the FSL reports( Exhibits 111-115) for finding corroboration to the evidence of the eyewitnesses and in drawing a conclusion regarding culpability of the appellants for the crime. We may reiterate that the testimony of the so-called eyewitnesses has already been discarded above by holding the same to be doubtful. Thus, even presuming that the FSL reports (Exhibits 111-115) conclude that the blood group found on the weapons recovered at the instance of the accused matched with the blood group of the deceased, this circumstance in isolation, cannot be considered sufficient so as to link the accused with the crime. In this regard, reliance can be placed on the judgment of Mustkeem alias Sirajudeen v. State of Rajasthan [(2011) 11 SCC 724], wherein this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. The relevant portion is extracted hereinbelow:-
“19. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the appellant unless the same was connected with the murder of the deceased by the appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder.” (emphasis supplied)”
Disclosure not proved
46. Hence, we are of the firm view that neither the disclosure statements made by the accused were proved as per law nor the same resulted into any discovery which could be accepted as incriminating inasmuch as the requisite link evidence was never presented by the prosecution so as to establish that the recovered articles remained in the self-safe condition from the date of the seizure till the same reached the FSL.
Prosecution has failed to lead convincing evidence to prove the accused is responsible for the crime
48. Upon an overall appreciation of the evidence available on record, we are of the considered opinion that the prosecution has failed to lead convincing evidence establishing the guilt of the accused appellants beyond all manner of doubt so as to hold the accused appellants responsible for the crime. Hence, the conviction of the accused appellants as recorded by the trial Court and the sentences awarded to them vide judgment and order dated 13th October, 2014 and so also the judgment dated 18th February, 2019 rendered by learned Division Bench of the High Court of Gujarat rejecting the appeals preferred by the accused appellants do not stand to scrutiny. The appellants deserve to be acquitted by giving them the benefit of doubt.
49. Resultantly, the appeals are allowed, and the impugned judgments dated 13th October, 2014 and 18th February, 2019 passed by the trial Court and the High Court, respectively are hereby quashed and set aside.
Party
Allarakha Habib Memon Etc. …. Appellant(S) versus State Of Gujarat …. Respondent(S) – Criminal Appeal No(S). 2828-2829 Of 2023 With Criminal Appeal No(S). 112 Of 2024 – 2024 INSC 590 – August 08, 2024
Allarakha Habib Memon etc vs. State of Gujarat 296132019_2024-08-08
