Gujarat High Court
Henno vs State on 18 March, 2009
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
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CR.A/20720/2003 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 207 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
======================================
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 ?
======================================
HENNO
@ ANWAR ALI AMIR MALEK & OTHERS
Versus
STATE
OF GUJARAT
======================================
Appearance
:
Mr Anil S Dave for the
Appellants
Mr A.J. Desai, Additional Public Prosecutor for the
State
Mr Kiritdev R Dave for the original complainant
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 18/03/2009
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the appellants ? original accused under Section 374(2) of the Criminal Procedure Code against the judgment and order of conviction and sentence dated 24.12.2002 passed by the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No.1, Bharuch in Sessions Case No.25 of 2001 whereby each of the appellants is convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo life imprisonment with a fine of Rs.2,000/- in default, to further undergo simple imprisonment for six months. The appellants were also convicted under Section 147 read with Section 149 of IPC and were sentenced to undergo RI for six months. The appellants were also convicted under Section 148 read with Section 149 of IPC and were sentenced to undergo RI for six months.
The case of the prosecution is that on 9.10.2000 the complainant ? Yusuf Ismail Abdulla Malek had given information at Kavi Police Station which was registered at C.R.No.I 31 of 2000. In the said complaint it was alleged that on 9.10.2000 he was on duty as bus conductor at Jambusar Bus Depot and that he was assigned the duty as conductor in the bus going from Jambusar to village Sigam. It was further the case of the prosecution that when the said bus reached village Kavi some passengers boarded the bus for going to village Sigam. That when said bus after leaving village Kavi and reached three roads leading to village Gulal at about 2.30 PM the complainant was issuing the tickets and at that time he saw that Henna @ Anwar Ali Amirbhai, Kalu @ Ali Amir, Yusuf Malek Lad and Ikbal Abdul Samiya had knives and Henna gave one blow on the left side of chest of deceased Musa and because of the same Musa had fallen down on the seat. Kalu and Yusuf Malek Lad and Ikbal Abdula Samiya gave knife blows to Gulam Raja and at that time Ahmed Motaji, who was sitting in the frong seat of deceased Gulam tried to intervene and at that time Ali Amir Bhaiba, Haji Mohd Khilji and Abdul Samiya who were standing two seats away were shouting and instigating. It was further the case of the prosecution that the bus had stopped and Amir Hasan Baji and Dawood Ibrahim Nurbha had run away and other passengers had also run away. The bus was thereafter taken to Kavi Police Station along with other passengers and dead bodies of Gulam Raja and Musa Mohd Bada who were killed in the assault.
The police thereafter conducted the investigation and submitted the charge sheet against the accused persons for the offences punishable under Sections 147, 148, 149 read with Section 34 of IPC and Section 135 of the Bombay Police Act. Since the offence was triable exclusively by the Court of Sessions, the case was committed to the Sessions Court by the learned Magistrate, which was numbered as Sessions Case No.25 of 2001. The learned Sessions Judge framed the charge and the accused appellants pleaded not guilty and claimed to be tried. After conducting the trial the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No.1, Bharuch was pleased to convict and sentence the accused persons as mentioned herein above.
Heard the learned counsel for the parties. It is a case where it was the consensus between the parties that out of accused Nos.1 to 7, accused Nos.5, 6 and 7 have not actually participated and were only instigating. The instigation part is so weak in its character. In view of the fact that independent witnesses have turned hostile including the conductor, participation of accused Nos.5, 6 and 7 appears to be doubtful. In that view of the matter, we are persuaded to acquit these accused persons giving them benefit of doubt.
As regards participation of accused Nos.1 to 4 is concerned, PW No.7 and PW No.14 have categorically stated that they were accused persons who caused fatal blows to deceased Musa Mohd Bada. In view of the active participation of accused Nos.1 to 4 and in view of the direct evidence of PW No.7 and PW No.14, their case does not deserve consideration. They are in jail. They should serve out the sentence.
As regards accused Nos.5, 6 and 7, they are acquitted of the charge as their participation is not established as is required under the criminal law. They are on bail. Their bail bonds are cancelled. Accordingly, the appeal is partly allowed.
(Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd Top