Gujarat High Court
Umarmiya @ Mamumiya S/O Ismailiya @ ... vs State Of on 21 August, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
UMARMIYA @ MAMUMIYA S/O ISMAILIYA @ PANJUMIYA BUKHARI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1714/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1714 of 2008 With CRIMINAL APPEAL NO. 1981 of 2008 TO CRIMINAL APPEAL NO. 1984 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ UMARMIYA @ MAMUMIYA S/O ISMAILIYA @ PANJUMIYA BUKHARI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: NANAVATY ADVOCATES, ADVOCATE for the Appellant(s) No. 1 PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 21/08/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 14.08.2013 These appeals arise out of common judgement dated 31.05.2008 rendered by learned Additional Sessions Judge, Porbandar in consolidated three sessions proceedings namely Sessions Case No. 37 of 2002, Sessions Case No. 8 of 2005 and Sessions Case No. 33 of 2006.
Briefly stated the prosecution version was as follows:
On 06.02.1993, the police party headed by PSI, Shri V.R.Aagath was in a police matador passing near Gosabara bridge near Mokar village of Madhavpur Taluka of Porbandar district. Late at night about 11.30 they saw that three trucks were coming from the opposite side. The lead truck had its lights on whereas the other two trucks did not have lights on. The police got suspicious. They signaled to the first truck by flashing their lights to stop. The first truck did not stop immediately. Instead, the vehicle crossed the police matador and stopped a little further ahead. The other two trucks, in the meantime, had stopped before the police vehicle. From the lead truck, about 9 or 10 people got down and stood close to their truck. 4 or 5 people got down from the other two trucks and joined the others who had got down from the lead truck. Out of the group, Mamumiya Panjumiya @ Umarmiya, accused No.1 was carrying a pistol. Some of the other persons were carrying weapons such as knives. Mamumiya Panjumiya fired thrice from his pistol in the direction where the police party was standing. In retaliation, PSI Shri Aagath fired from his service revolver. Initially, he fired in the air but even then Mamumiya Panjumiya fired two more times. The PSI aimed at the mob and fired twice. In the commotion that ensued, some five people got into the two trucks behind and managed to escape. Others ran towards the road side bushes leaving the first truck behind. The police managed to catch accused Laxman Hardas and Markhi Punja.
Against 09 accused including the above mentioned Laxman Hardas and Markhi Punja, Sessions Case No. 1/94 (old No. 32/1993) was tried. Learned Additional Sessions Judge, Porbandar by his judgement dated 20.03.1998 acquitted all the accused.
The remaining accused, in all 13 in number, were absconding for a long time. At different stages upon availability different sessions cases were registered against them. All these sessions cases namely Sessions Case No. 8 of 2005, 37 of 2002 and 33 of 2006 were consolidated and tried together. These proceedings were disposed by the learned Additional Sessions Judge by the impugned judgement. All the accused were charged with offence punishable under Section 307 readwith Section 147, 148, 149 and with offences punishable under Section 353, 504 of IPC as well as Section 25(1) of the Arms Act and Section 135 of the Bombay Police Act. Except original accused No.1 all the remaining accused were acquitted of all the charges. Accused No.1 was convicted for offence punishable under Section 307 of IPC and Sections 25(1) of the Arms Act and 135 of the Bombay Police Act. He was sentenced to rigorous imprisonment of seven years for offence under Section 307 of IPC and ordered to pay fine of Rs. 10,000/-. For the offence under the Arms Act and Bombay Police Act he was sentenced to rigorous imprisonment of one year and six months respectively. Fines were also imposed. Substantive sentences were ordered to run concurrently. That State has preferred Criminal Appeal No. 1981 of 2008 challenging the judgement of acquittal recorded by the learned Additional Sessions Judge in Sessions Case No. 33 of 2006. Criminal Appeal No. 1982 of 2008 is filed challenging the acquittal of the accused in Sessions Case No. 37 of 2002. Criminal Appeal No. 1984 of 2008 is filed challenging the acquittal of accused No.2 Aziz @ Tako in Sessions Case No. 8 of 2005. Criminal Appeal No. 1983 is filed for enhancement of sentence to the convicted accused No.1. Accused No.1 has filed Criminal Appeal No. 1714 of 2008 challenging his conviction.
The charge against accused was that the accused, in order to conceal contraband goods, had formed an unlawful assembly. One of them Mamumiya Panjumiya had fired from his unlicensed pistol illegally carried by him. All the accused were therefore charged with offences punishable under Sections 307, 147, 148, 149, 353, 504 of IPC and Section 25(1) of the Arms Act and 135 of the Bombay Police Act.
At the outset, we have noticed that insofar as the alleged incident is concerned, there appears to be very little doubt. The defence has also not raised any serious doubt about it. The principal question before us however is of the involvement of the accused persons and in particular accused No.1. We may, therefore, record only the relevant evidence in brief. The prosecution had examined two eyewitnesses who had narrated the events of the day in their depositions. P.W. 4, Manubhai Shamjibhai Malvi Exh. 39 was at the relevant time discharging his duty as Head Constable. He was posted at Navibandar outpost, Madavpur Police Station. He stated before the Court that, on 06.02.1993, one FIR for offence under Section 302 of IPC was registered at Madavpur Police Station. The PSI Shri Aagath was in charge of the investigation, he had also joined in the police party carrying out the investigation. During the course of the investigation he, along with PSI and other police personnel namely Head Constable Rasikbhai Balubhai and Constable Devsibhai Maldebhai were travelling in the police vehicle. When they reached near Gosabara bridge; from a kutcha road from Moka village they saw three trucks coming. The truck in the front had its lights on. Lights of the other two trucks were off. The PSI got suspicious. He, therefore, by signaling with the light of the police vehicle asked the driver to stop his vehicle. The truck did not stop immediately but stopped a little further down. It was about 11.30 at night at that time. The other two trucks had stopped behind at a distance of about 100 to 150 ft. From the truck in front about nine or ten persons including Mamumiya Panjumiya of Porbandar (accused No.1) and Laxman Hardas, Markhi Punja and Chunilal Devji etc. got down and stood near the truck. From the trucks behind some four or five people including one Lavarish got down and joined these people standing by the truck. Mamumiya Panumiya had a fire arm such as pistol. Laxman Hardas, Chunilal Devji and Lavarish had knives. Mamumiya Panjumiya fired towards the police party from his pistol thrice. PSI Shri Aagath fired twice in the air from his service revolver. He thereafter fired twice towards the mob of these people and once towards the truck. These people therefore, started running. About five of them ran towards the two trucks behind and escaped with the trucks. They managed to catch Laxman Hardas and Markhi Punja. The rest ran away leaving the first truck. He identified accused No.1 Mamumiya Panjumiya before the Court since according to him he could recognize such person from face. He further stated that in his police statement dated 07.02.1993 he had forgotten to mention the names of Hanifmiya Hussainmiya and Dadlimiya Panjumiya though they were present on the night of the incident. His further statement was therefore recorded. We may record that such further statement was recorded on in the year 2002. He stated that Hussainmiya was also carrying a fire arm like a pistol.
In the cross examination, he agreed that in Sessions Case No. 1 of 1994 he had not mentioned about the presence of Hanifmiya Hussaimiya. He admitted that no test identification parade was carried out in his presence. He agreed that in his police statement he had not mentioned that since the lights of the trucks behind the first one were off, the PSI had got suspicious about the movement. He agreed that they encountered these trucks suddenly and that there was no previous information about it and the incident had taken place all of a sudden. He could not state in which direction the bullets went nor how high the bullets had passed from. Most significantly he admitted that before the date of the incident he had no occasion to meet accused No.1 Mamumiya Panjumiya nor by the time the police recorded its further statement on 13.08.2002, he had any occasion of meeting the said accused.
The other member of the police party Rasikbhai Balubhai Chauhan, P.W. 5, Exh 54 was a Head Constable who had also accompanied the police party led by PSI Shri Aagath. He deposed that on 06.02.1993, he along with PSI Shri Aagath and other members of the police party had set out in connection with investigation into a case of murder. While returning, when they were travelling from the direction of Gosabara bridge on a metal road between Gosabara and Mokar village, some vehicles were seen coming towards their direction. On instructions of the PSI, driver took the police vehicle on the shoulder of the road. By that time, one truck came from the opposite direction. It was instructed to stop by showing the light signals. The truck stopped a little distance ahead from such vehicle. Accused No.1 Mamumiya Panjumiya, Chunilal, Laxman Hardas, Markhi Punja etc. started coming towards them. Chunilal was carrying a big knife. Lavarish also had a knife. Mamumiya Panjumiya fired twice from his pistol towards them. PSI, Shri Aagath also fired twice in the air. During which time, other people also got down from the truck. Mamumiya Panjumiya fired again towards them. PSI Aagath thereupon fired in the direction from where the cross firing was done which was towards the truck in the front. There was total commotion thereafter. They managed to catch Laxman Hardas and Markhi Punja. The witness identified accused No.1 Mamumiya Panjumiya before the Court. The witness also stated that some of these people managed to reverse the two trucks and escaped with the said truck. He also stated that in his first statement before the police he had not mentioned the name of Hanifmiya Hussainmiya. It appears that this witness also had not disclosed the name of Hanifmiya Hussainmiya in his first statement before the police recorded in the year 1993 and, as in case of P.W. 4, his further statement was also recorded later in his case on 10.08.2002.
In the cross examination he agreed that the two trucks behind had stopped at a distance of 300 to 400 ft from their vehicle. He agreed that if somebody wanted to go from these two trucks towards the truck in the front, he would have to pass by the police vehicle. The lead truck had stopped on the Madhavpur main road at a distance of about 150 to 200 ft from the metal road. He admitted that some people escaped by starting the two trucks and reversing the direction of the trucks. Most importantly he admitted neither before the date of the incident nor after he had any occasion to meet or talk to Mamumiya. He knew that on every date of hearing of the case Mamumiya was brought to the court, but denied that he identified him because of that.
21.08.2013 P.W. 6, Smt. Sheelaben Benjamin Exh. 61 was, at the relevant time, Collector and District Magistrate, Porbandar. She had given sanction for filing charge-sheet of accused No.1 and others under the Arms Act. Such sanction order was produced at Exh. 67.
One Prafulbhai Mathurdas Atara, P.W. 12, who was the Deputy Mamlatdar, was examined at Exh. 76. He was examined with respect to the preparation of a Compact Disc ('CD' for short) of a supposed conversation between accused No.1 and Dy. S.P. Shri Rajkumar Pandiyan. We would refer to this aspect while assessing the evidence. We may briefly state that the prosecution case was that previously, the investigation was not being carried out in a satisfactory manner perhaps because the accused wielded considerable influence even within the police department. We may also record that the original CD or even the transcript of the conversation recorded in such CD was never produced before the Court.
The then Dy.S.P., Shri Rajkumar Pandiyan, P.W. 18 was examined at Exh.
95. In his deposition, he stated that upon arrest of Hanifmiya Hussainmiya, accomplice of accused No.1 and during his interrogation, it was revealed that the said accused had used one Tata Sierra Car which was also found near the place of incident. However, the police had, in connivance with the accused, released the car on the next day. He also deposed about the alleged conversation between him and accused No.1 Mamumiya on 05.08.2002. On the strength of such conversation and also the alleged laxity of the police in returning the car to the accused though it was clearly involved in commission of the offence, this witness, in his deposition, imputed mala fide motives on part of several senior police officials of the department. He alleged that the accused was in Dubai when the accused spoke to him on 05.08.2002 and allegedly claimed during his conversation that he had got the Tata Sierra Car released after paying bribe. The witness also alleged that the accused was in contact with some senior police officers and that the others were not paying sufficient attention to the seriousness required for the investigation. He, however, agreed that he had not produced such correspondence along with charge sheet though it was required.
In the cross examination, when asked whether during the course of the investigation having found any defects, he had asked for explanation of the Investigating Officer, he stated that he can answer to such a question only after perusal of the case paper. The Court thereupon recorded that since the original case papers were lost, the same could not be shown to the witness. He admitted that he had not filed case against Investigating Officer under the Prevention of Corruption Act.
This, in the nutshell, is the relevant evidence on record. This is one unfortunate case where nasty allegations have been made by the senior police official against his superiors. The investigation carried out also leaves much to be desired. Most important witnesses have come up with versions which are not easy to accept. This is an example where the fissures within the police department have come out in the open and in the process investigation and prosecution have suffered. Our limited task, however, is to ascertain whether the conviction of accused No.1 and the acquittal of rest of the accused was proper. We may first deal with the question of conviction of accused No.1.
We may recall that, according to the prosecution version, the incident took place late at night on 06.02.1993 when the police party, in connection with investigation of an unrelated murder case, was traveling on highway. They noticed suspicious movement of three trucks coming from a narrow lane. The first truck was instructed to stop which it did after a little distance. From the truck, accused No.1 and others got down. Accused No.1 fired at the police party from his weapon. To establish this version, principally, the prosecution relied on two eyewitnesses. P.W. 4 Manubhai Shyamjibhai Malvi and P.W. 5 Rasikbhai Balubhai Chauhan. Both were members of the police party. Rasikbhai Chauhan was a Head Constable. He narrated the manner, in which, the trucks were instructed to stop and, the cross firing by accused No.1 and the PSI which ensued. He deposed that from the first truck, accused No.1 Mamumiya had got down with the pistol from which he had fired thrice.
Likewise, P.W. 5 Rasikbhai Chauhan also gave a similar version of the police party instructing the first truck to stop and accused No.1 getting down from the truck and having fired on the police.
We may recall that the incident took place at about 11.30 at night on a highway. Obviously, therefore, there was no source of light. Both the witnesses had identified accused No.1 before the Court when their depositions were recorded in August and November 2007 respectively. The incident took place on 06.02.1993. No test identification parade was carried out. Most significantly, both these witnesses in the cross examination admitted that test identification parade was not carried out and that they had never met the accused before the date of the incident. P.W. 4 further stated that even after 13.08.2002, when the police recorded his statement, he had no occasion to meet the accused. P.W. 5 also likewise agreed that after the incident, he had no occasion to meet accused No.1 or talk to him. Even before the incident he had never met him.
Other than these two eyewitnesses there is no direct evidence to link the accused with the commission of the offence. There was no other corroborative evidence also. The prosecution has, ofcourse, based some reliance on the so called conversation between accused No.1 and Shri Rajkumar Pandiyan. These aspects we would refer to at a later stage. At this stage, we may try to analyze the evidence of these eyewitnesses. It clearly emerges that for the incident which took place late at night about 11.30 in February 1993, they identified the accused for the first time before the Court in August/November 2007 without any previous test identification parade. Thus, 14 years passed before the witnesses had a fleeting glimpse of the accused in the middle of the dark night on a deserted highway. They never had any occasion to see this accused after that. Most significantly, these witnesses admitted that they had never met the accused before that also. If that be so, one wonders how these witnesses knew who the person firing was. They had never met Mamumiya before or after that day. The prosecution had to explain how these witnesses could identify this accused. There was no such explanation. Had there been some explanation such as the accused being a notorious criminal and wanted in number of crimes and that therefore, the witnesses had seen his pictures previously, we would have tried to appreciate their evidence in background of such facts. In the present case, the prosecution which owed the duty to explain how the witnesses identified the accused, utterly failed to do so. To recapitulate quite apart from the high improbability of a witness retaining the memory of having seen a person in dark night under terrorizing circumstances to identify the person more than 14 years later, their primary identification itself is hugely doubtful. These witnesses admitted that they had no occasion to meet the accused before or after the incident. Their assertion that it was accused No. 1, who was the member of such party and was the one who had fired from his pistol thus become totally shaky.
There is yet another curious aspect of the matter which renders the deposition of these witnesses unsafe to rely. Statements of these witnesses were recorded soon after the incident i.e. in the first week of February 1993. Further statements of these witnesses were recorded in August 2002 i.e. more than 9 years later. The reason indicated by these witnesses for recording of such further statements was that in their first statements before the police, they had forgotten to give names of some more persons, who were in the group. We must remember that these witnesses were police men and not ordinary citizens. Right after the incident, their statements were recorded, during which, they revealed involvement of certain persons. More than nine years later their further statements were recorded to implicate some more persons. Whole thing smacks of shoddy and/or faulty investigation. We are not finding any fault with these witnesses for having improved their version more than nine years later. We suspect they were only being controlled by some superior forces in either not including certain names initially or adding such names years later. Be that as it may, their version becomes completely suspect and the identification of accused No.1 wholly unreliable.
P.W. 5 Rasikbhai Chauhan had stated that some of the persons, who got down from the first truck, had joined the other group of the latter two trucks. They had, thereupon, reversed the trucks and fled. In the cross examination, he admitted that there was a distance of about 300-400 ft between these two trucks and the police vehicle and, if anybody from the first truck had to reach the two trucks behind, he would have to pass the police vehicle, where as per this witness, police people were present at the time of the incident. He did not explain why no attempt was made to arrest such persons before they successfully joined their accomplice in the other two trucks.
The prosecution has placed some reliance on the so called CD containing the conversation between accused No.1 and Shri Rajkumar Pandiyan to assert that the first phase of the investigation was completely faulty and perhaps deliberately tardy. However, no such conversation has been proved. The original CD was never produced. Even the transcript of the conversation was not produced. What was produced was a new CD prepared by the Police Department on the strength of the alleged conversation recorded in the original CD since in the or original CD quality of recording was not good enough. Surely this can hardly be stated to be an evidence of any statement allegedly made by accused No.1. Quite apart from not proving that the voice in the said CD was of the said accused, the CD itself was never produced. In absence of any legal evidence on record, in this respect therefore, this attempt on part of the prosecution to suggest that previously, the investigation was not carried out bona fide and only later, proper investigation was carried out must fail. This angle probably had something to do with the recording of the further statements of the witnesses after a gap of more than nine years. We have noticed that a further statement of P.W. 4 and 5 were recorded, in which, they gave names of few more accused who, according to them, were present on the date of incident. By a mere suggestion of improper investigation, the prosecution cannot wish away the eyewitnesses implicating more persons after a gap of more than nine years, particularly, when these witnesses were police men.
In the result, in our opinion, the trial court committed a serious error in convicting accused No.1 in whose case, in our opinion, his identification by the witnesses was totally unreliable. There was no other evidence of his presence. The weapon was never recovered.
It is also questionable whether, in any case, offence under Section 307 of IPC was made out. The witnesses though did say that accused No.1 fired from his private weapon, they were completely unaware as to in which direction the bullets went, whether the bullets fired went above their heads or whether the same was to scare the police from the group. No injuries were caused. In fact, out of the three bullets allegedly fired, empty shells of two were found near the bridge at a distance of nearly 150-200 ft away from where the first truck had stopped and from near to which the accused No.1 had allegedly fired.
Coming to the acquittal of the rest of the accused, the same is possible of a brief disposal. From the truck seized from the place of the incident, nothing incriminating was found. None of these accused persons even those who were arrested from spot carried any incriminating material or weapons. Eyewitness also had not attributed any overt act to any of these accused. The sole allegation was that they were members of a group from which group one of the accused Mamumiya had fired from his pistol. The prosecution thus failed to lead any evidence that the accused formed an unlawful assembly and as part of the common intention of such unlawful assembly, an act was committed for which they all could be held responsible. Looking from both angles that of their individual acts as well as part of the unlawful assembly, their involvement was simply not established. In addition to the eyewitness evidence already noted in connection with the conviction of accused No.1, there was no other direct or even indirect evidence to rope in these accused. In fact, as noted, some of these accused were implicated much later in the further statements which was recorded by the police nine years after the incident. In the first statement recorded immediately after the incident names of these persons were not revealed. The version of the witnesses appears that they have forgotten to give such names. We fail to see how the witnesses remembered such names nine years late. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:
42.
From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3)Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4)An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
(i) In the result, Criminal Appeal No. 1714 of 2008 filed by original accused No.1 challenging his conviction is allowed. His conviction and sentence by the Trial Court is set aside. Judgement to such extent is reversed.
(ii) Criminal Appeals No. 1981 of 2008, 1982 of 2008 and 1984 of 2008, the State's acquittal appeals are dismissed.
(iii) Since the accused No.1 is acquitted under this judgement, State's appeal for enhancement of the sentence being Criminal Appeal No. 1983 of 2008 stands dismissed. R & P to be transmitted to the Trial Court.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) Jyoti Page 20 of 20