Gujarat High Court
Ahemadbhai Mohammadbhai Ansari vs State Of Gujarat on 14 September, 2021
Author: Paresh Upadhyay
Bench: Paresh Upadhyay, Ashokkumar C. Joshi
R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 874 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AHEMADBHAI MOHAMMADBHAI ANSARI
Versus
MOHMMAD IMTIYAZ @ CHIKO NOORMOHAMMAD SHAIKH
AND OTHERS
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Appearance :
MR YV BRAHMBHATT, ADVOCATE for the Appellant
MR ARJUN M JOSHI & MR S M VATSA, ADVOCATES
for the contesting Respondent Nos. 2 to 6
MR HARDIK SONI, APP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 14/09/2021
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R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE PARESH UPADHYAY)
1. This is an acquittal appeal. It is filed by the original complainant, invoking his right under proviso to Section 372 of the Code of Criminal Procedure, 1973. This appeal is directed against the judgment and order passed by the Additional City Sessions Judge (Court No.15), Ahmedabad dated 03.09.2020 in Sessions Case No.70 of 2017.
2. On 11.12.2015, at about 11:30 (night), at Sultan Mohalla, Dariyapur, Ahmedabad City, one Yasinbhai was attacked and was done to death. Complaint in that regard was given by the present appellant and consequently, an FIR was registered by the Dariyapur Police Station, Ahmedabad City on the early morning of 12.12.2015 (being C.R.I No.36 of 2015) for the offences punishable under Sections 302, 143, 147, 148, 149 and 201 of the Indian Penal Code and Section 135 of the Gujarat Police Act. Five persons were named as accused. It was registered as Criminal Case No.925 of 2016 and on being committed to Sessions Court, was registered as Sessions Case No.70 of 2017.
3. On conclusion of the trial, the Sessions Court arrived at the following judgment :-
3.1 Original accused No.1 - Mohammad Vajid son of Mohammad Imtiyaz @ Chiko Noormohammad Sayani Bapu Shaikh is principally convicted for having committed offence under Section 302 of IPC and is ordered to undergo rigorous imprisonment for life.Page 2 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022
R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 3.2 Accused No.2 - Mohammad Imtiyaz @ Chiko Noormohammad Sayani Bapu Shaikh is convicted for having committed offence punishable under Section 324 of IPC and is ordered to undergo rigorous imprisonment for three years.
3.3 Accused No.3, 4 and 5 viz., Moiz, Farhan and Irshad, (all three - sons of accused No.2 - Mohammad Imtiyaz @ Chiko Noormohammad Sayani Bapu Shaikh), are principally convicted for having committed offence under Section 323 of IPC and are ordered to undergo rigorous imprisonment of one year.
3.4 Over and above the sentences, fine is also imposed and in default thereof, further sentence is also imposed.
4. This appeal is filed by the original complainant with the grievance that, not only original accused No.1, but all the five accused should have been convicted for having committed offence under Section 302 of IPC.
5. Heard Mr. Y.V.Brahmbhatt, learned advocate for the appellant - original complainant, Mr. Arjun M. Joshi, learned advocate for the original accused / convict Nos.2 to 6 and Mr. Hardik Soni, learned APP for the respondent - State.
6. Mr. Y.B.Brahmbhatt, learned Advocate for the Original Complainant has made the following submissions.
6.1 It is vehemently and principally submitted that, there was animosity between the families of the deceased and the Page 3 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022 R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 accused and this was premeditated murder and all the five accused should have been convicted under Section 302 of IPC.
6.2 It is also submitted that, the trial Court fell in error in not accepting the case of the complainant and the prosecution that the offence under Section 302 of IPC was committed by all the five accused, inspite of they being members of unlawful assembly, according to the appellant.
6.3 It is submitted that, the finding of the Trial Court that there was no evidence to bring home the charge within the four corners of Section 149 is erroneous.
6.4 It is submitted that, all the accused ought to have been convicted under Section 302 of IPC with the aid of Section 149 of IPC.
6.5 It is noted that the learned advocate for the appellant has taken this Court extensively through the findings recorded by the Sessions Court and has also read the evidence, which according to him was relevant. Reference in this regard is made to evidence of the witnesses at Exh.56, 58, 59 and 64.
6.6 According to learned advocate for the appellant, all the five accused can be said to have been attributed with overt-act in commission of the offence.
6.7 It is submitted by him that this appeal be accepted and the accused Nos.2 to 5 be also convicted for having committed offence under Section 302 of IPC, as conviction is recorded qua original accused No.1.
Page 4 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 7.1 Mr. Arjun M. Joshi, learned advocate for the contesting respondents has submitted that the Trial Court has rightly arrived at the conclusion that the charge under Section 149 of IPC is not proved.
7.2 He has further submitted that in this appeal it may not be necessary to address the Court, how conviction is unsustainable qua accused No.1, since that may be the subject matter of conviction appeal that may be filed by that accused, therefore, the submission made on behalf of respondent Nos. 2 to 5 be not construed as any concession on behalf of original accused No.1, who is also a respondent in this appeal.
7.3 It is further submitted that, the medical evidence does not support the case of the prosecution against any of the accused Nos.2 to 5.
7.4 It is submitted that this appeal be dismissed.
8. Mr. Hardik Soni, learned Additional Public Prosecutor has submitted that, since the victim is before the court in exercise of his right under proviso to Section 327 of the IPC, on the basis of the evidence on record, appropriate order be passed by the court and the State cannot have any contest in this appeal.
9. Having heard learned advocates for the respective parties and having considered the material on record, this court finds as under.
Page 5 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 9.1 The incident took place on 11.12.2015 at about 11:30 (night), at Sultan Mohalla, Dariyapur, Ahmedabad City.
9.2 One Yasinbhai was attacked and was done to death.
9.3 Complaint in that regard was given by the present appellant and consequently, an FIR was registered against five persons (as per the details in Para : 3.1 to 3.3 above) by the Dariyapur Police Station, Ahmedabad City being C.R.I No.36 of 2015 for the offences punishable under Sections 302, 143, 147, 148, 149 and 201 of the Indian Penal Code and Section 135 of the Gujarat Police Act.
9.4 By the impugned judgment, the Sessions Court has convicted original accused No.1 under Section 302 of IPC, accused No.2 under Section 324 of IPC and rest of the three accused i.e. accused No.3, 4 and 5 under Section 323 of IPC. The details with regard to the conviction and sentence are noted in Paras : 3.1 to 3.3 above.
10.1 The Sessions Court has accepted the case of the prosecution to the extent that, it is accused No.1 who had inflicted knife blows to the victim which led to his death. The Sessions Court has however not accepted the prosecution case that there was any meeting of mind of all the accused in that regard or that, there was any unlawful assembly for that purpose.
10.2 The thrust of the argument on behalf of the appellant is that, there was animosity between the families of the deceased & the accused, further this was premeditated murder Page 6 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022 R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 and therefore all the five accused should have been convicted under Section 302 of IPC, with the aid of Section 149 of IPC. This is a double edged sword. It can cut either way.
10.3 Since it is also the case of the complainant that, there was animosity between the families of the deceased & the accused, it can lead to over-implication of the accused as well. It is pertinent to note that, all the five accused are male members of one family. Accused No.2 is the father and accused Nos.1, 3, 4 and 5 are his sons.
10.4 This Court has taken into consideration the evidence, what is read before this Bench by learned advocate for the appellant.
10.5 On conjoint consideration of the said evidence it is proved that, the victim died of the injuries of knife blows. Those blows were inflicted by original accused No.1. He is convicted for having committed offence under Section 302 of IPC. The sustainability of the said conviction is not the subject matter of this acquittal appeal.
10.6 The best evidence, according to the learned advocate for the appellant, is Exh.58, a copy of which is placed on record along with the memo of appeal. The said witness in her cross- examination states that, it is true that, she had not seen that Vajid (accused No.1) had inflicted knife blows to the victim. She further confirms in her cross-examination about the discrepancy in her evidence vis-a-vis her statement before the police. This is the best piece of evidence relied by learned advocate for the appellant. Be that as it may. While recording Page 7 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022 R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 this, we make it clear that the conviction of original accused No.1 is not subject matter of this Appeal and this piece of evidence is not evaluated from that angle. However, suffice it to note that even in this Acquittal Appeal, according to the appellant, this is the best piece of evidence.
10.7 The Sessions Court has, in paragraph 48 of the judgment categorically recorded that, there is no evidence on record to arrive at the conclusion that there was any unlawful assembly. The Sessions Court further records that, the offence could not be said to have been proved under Section 149 of IPC. We have examined the judgment, weighed it vis-a-vis the evidence on record to trace whether this finding of the Sessions Court can be said to be erroneous in any manner. We are unable to accept the contention of learned advocate for the appellant that the Sessions Court fell in error on this count. This argument therefore is rejected.
11. Having arrived at the conclusion that the finding of the Trial Court that the offence could not be said to have committed under Section 149 of IPC, the role attributed to each accused has to be weighed individually.
11.1 As noted above, the Sessions Court has already convicted accused No.1 for having committed offence under Section 302 of IPC. There cannot be any appeal against that at the hands of the complainant or State. The matter should rest there, so far as accused No.1 is concerned. It is with the clarification that, his conviction appeal may be examined on its own merits.
11.2 So far as accused No.2 is concerned (father), it was Page 8 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022 R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 attempted to prove that he had inflicted pipe blow. Mr. Joshi, learned advocate for the contesting respondents is right in his contention that, on the face of the medical evidence, accused No.2 could not have been convicted beyond Section 324 of IPC. The conviction under Section 324 of IPC is also subject to that being tested in appeal, if any, filed by the said accused.
11.3 So far as Accused Nos.3, 4 and 5 are concerned, the evidence shows that, their names are shown to have been referred to, prima facie, as an afterthought. In any case, the conviction qua them is under Section 323 of IPC, and that aspect need not be stretched further atleast in this appeal.
11.4 On overall consideration of the evidence, this Court arrives at the conclusion that, the Sessions Court has not committed any error while recording that conviction could not have been recorded with the aid of Section 149 of IPC. We further find that having examined the role of each accused individually, the conviction could not have been recorded beyond what is recorded by the Sessions Court. This appeal therefore needs to be dismissed.
12. For the reasons recorded above, the following order is passed.
12.1 This appeal is dismissed.
12.2 It is clarified that, non-interference by this Court in this acquittal appeal is not to mean confirmation of the impugned judgment of the Sessions Court and in the event it is challenged by any of the accused / convict, the said conviction Page 9 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022 R/CR.A/874/2021 JUDGMENT DATED: 14/09/2021 appeal shall be considered on its own merits.
(PARESH UPADHYAY, J) (A. C. JOSHI,J) J.N.W Page 10 of 10 Downloaded on : Sun Jan 16 14:23:57 IST 2022