Gujarat High Court
Suleman Daudbhai vs State Of
Author: Ks Jhaveri
Bench: Ks Jhaveri
SULEMAN DAUDBHAI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/750/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 750 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================ 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 ? ================================================================ SULEMAN DAUDBHAI....Appellant Versus STATE OF GUJARAT....Respondent ================================================================ Appearance: MR P B GOSWAMI, ADVOCATE for the Appellant MR NEERAJ SONI ADDL PUBLIC PROSECUTOR for the Respondent ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 15-16/04/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE G.R.UDHWANI) Appellant has been inter alia sentenced to life imprisonment after having been found guilty of the offence punishable under Section 302 of the Indian Penal Code (for short IPC) by the learned Additional Sessions Judge, Fast Track Court No.3, Jamnagar vide judgment and order dated 29/03/2006 in Sessions Case No.107 of 2005. The appellant is, therefore, before this Court questioning the impugned judgment and order.
2. As per the prosecution case, FIR (Exh.69) came to be lodged by appellant himself confessing therein that, on 19/07/2005 at about 11:00 p.m., while he was at his house, his two sons Rajak and Sultan (for short D-1 and D-2) came there; switched the light on; the appellant switched it off and on this count there was altercation by D-1 and D-2 and at that point of time, another son of the appellant Gulam, as well as, Abbas who was residing separately also joined in the altercation. D-1 climbed on an electric pole in order to disconnect the electricity supply of whole street; whereupon the neighbour Jumabhai, his wife Rebun and his son Yakub came out on being called by appellant and stopped D-1 from doing so. It is stated that D-1 thereafter again took up the quarrel with the help of Abbas and D-2 in presence of Gulam, who subsequently left the place. In the FIR, it was stated that during the altercation, D-1 and D-2 threatened the appellant to vacate the house or face the dire consequence and thereafter went to sleep on the terrace of the house and the appellant himself also went to sleep at about 02:00 a.m. (on 20/07/2005). He thereafter woke up, took up crowbar (Kosh) having a squared rectangular one side sharp and a blunt top; went to the terrace; inflicted blows on the person of D-1 and D-2. First blow was given by him to D-1 and the second to D-2 and thus killed both of his sons in the cold-blood. Thereafter, the appellant is said to have stayed at the terrace upto 05:00 a.m., until he was sure about the death of both sons. He then came down, cleaned the crowbar; placed it in the house; locked it, went from his house to Sikka Patia in auto-rickshaw and from there in Armada Jeep to Seven Road Junction, Jamnagar and therefrom came to the Police Station, Jamnagar.
3. On the basis of the above complaint, investigation was started and ultimately after collection of various documentary as well as oral evidence, appellant was tried and was found guilty.
4. We are conscious of the fact that the incriminating circumstances in the FIR cannot be taken into account and therefore while avoiding the incriminating reference, the contents of the FIR are required to be appreciated.
5. From the contents of the FIR, it transpires that PW No.8 Gulhambhai Faridbhai, who has deposed to appellant having made a confessional statement before him, has not been referred to at all. Amongst other three persons referred to in the FIR, Jumma has been examined as PW No.7, who deposes of having seen the commotion at about 11:00 and 11:30 p.m. As per the testimony of PW No.7, in the cross-examination, the Police who had recorded his statement was not local but from outside and the jeep was of Jamnagar Police. It is admitted by this witness that he did not see anyone climbing the electrical pole; neither did he see Gulam present at the scene and he was not able to clearly hear the noise during the commotion and came to know from others that the murder was committed. It is thus evident from this witness that he witnessed initial part of the incident when Gulam was not present.
6. Gulambhai Faridbhai is examined as PW No.8 at Exh.24. Almost the whole case of the prosecution is based upon the testimony of this witness. He has come out with the case that his father appellant had made a confessional statement before him about he having caused death of D-1 and D-2 by using a crowbar and inflicting the injuries on the head of both D-1 and D-2 while both of them were sleeping on the terrace. It is noticed that while both D-1 and D-2 were sleeping almost side-by-side but their heads were in opposite directions and not parallel.
7. As per testimony of PW No.8, he was residing along with D-1, D-2 and the appellant, adjoining to Moti Bungalow in Sikka at Jamnagar District and on the date of incident, the appellant took up a quarrel with D-1, D-2 and Abbas. Abbas however has not been examined.
8. Such quarrel was taken up at about 12:00 in the night before PW No.8 returned from his work. As per his version, appellant was abusing both of his sons when he returned from work. He was also threatening his sons of death. Abbas, who was staying separately was sleeping in his room and D-1 and D-2 were then went to sleep on the terrace and about 05:00 a.m., the appellant waked this witness up and told him that both of his brothers Sultan and Rajak have been eliminated; are no more in this world. While uttering such words, the appellant was holding a crowbar in his hand, soaked with blood. The appellant took him to a separate room; placed the crowbar in another room; gave him a sum of Rs.23,000/- and told him that he was going to Police chowky to surrender and that he may live his own life and thereafter both of them boarded auto-rickshaw, came to Sikka Patiya and then boarded a jeep to Seven Road Junction, Jamnagar and surrendered in the Police chowky. The witness being frightened, went to Mundra and from Mundra returned to Sikka after two days and presented himself in the Chowky where he gave his statement. It is further deposed by him that out of Rs.23,000/-, he expended Rs.3,000/-. He has also stated that his mother was residing separately behind Naz Cinema near Bakhla Bapu s house as she was beaten up and driven out of the house by the appellant. Witness identifies the crowbar, as also the appellant as assailant.
9. From cross-examination of this witness, it has been elucidated that the appellant is a retiree; earlier working in DCC Company as a driver and has received his due benefits from that company since about four years where from he purchased a truck which the appellant was also driving at times. It was also being driven by a driver and the witness was working as conductor or a cleaner in the said truck. He goes on to add that on the date when the incident occurred, he was waiting outside DCC Company, expecting work. In the cross-examination, it was suggested to him that in the night of the incident, he had gone for attending a marriage; he denied it but it was established as an omission through the testimony of I.O. It was further suggested to him that he had stated in his statement under Section 161 of Cr.PC that on 19/07/2005 after 11:30 p.m., he had been to Sikka to attend marriage and came therefrom to home. He denied this as well but this omission was also established through the testimony of I.O. He also stated that he did not gave any statement before the Police to the effect that he had gone from Jamnagar to Mundra in a bus. This statement of his is also proved in the cross-examination of I.O. It was also put to him and he denied that he stated in his statement that before about six days, his mother Jenaben was beaten up by Suleman, the appellant because of which his mother had gone to stay with his maternal aunt. This omission is also established in the cross-examination of I.O. In his further cross-examination, the witness admits that on the way to Jamnagar there were several Police Chokies. It is also stated by him that Village Sikka is at a distance of about 26 Kilometers of Jamnagar. It is stated by this witness that on his returned to Sikka, on inquiry, by his brother-Abbas, he told him that the appellant has killed both of our brothers. However, he did not talk to anyone except to his brother before he made the statement in the Police Station.
10. PW No.9 is the mother of PW No.8 and wife of the appellant. According to her version, she presently stays with her two sons, Gulam and Abbas and at the time of offence, she was staying with Rajak and her elder son Abbas was staying separately. The appellant was staying with them on the date of offence. However, as discussed above, statement of Gulam as regards staying of PW No.9 with the appellant is otherwise. She, however, improves her version in the very next paragraph by stating that before two month of the incident, she was driven out by the appellant and was staying at Naz Cinema, at the place mentioned herein above.
11. Learned Counsel for the appellant would submit that the prosecution case was entirely based upon extra judicial confession; statement of PW No.8-son of the appellant as also circumstantial evidence; inasmuch as, there was no eye-witness to the occurrence that took place allegedly on the terrace of the house of the appellant. In his submission, the chain of circumstance pointing to the guilt of the appellant and appellant alone and leaving no room for innocence of the appellant has not been established for reasons more than one. Learned Counsel further submitted that the story of the prosecution that after three hours of the quarrel at 12:00 night, the appellant would kill his two young sons having no enmity at all, in a cold-blood and then would stay on terrace for about two hours until he was satisfied about their death and then to make an extra judicial confessional statement and managing the escape of PW No.8 to the exclusion of Abbas, another son with whom no enmity of the appellant is shown and despite the fact of appellant having helped PW No.8, unnatural conduct of the PW No.8 having returned after two days on account of fear of his implication as also his statement under Section 161 of CrPC disclosing alleged confession made by the appellant to him after two days of the incident, should not inspire confidence of the Court and in his submission these circumstances do not establish the case of the prosecution beyond reasonable doubt. It was also submitted that in the statement under Section 313 of CrPC, the plea of the appellant was as to alibi from the scene of of the offence at the relevant point of time and it was not established on record that he was present immediately before the quarrel started. In his submission, PW No.8 is not consistent in making statement inasmuch as, there were several material contradictions established through the I.O.
12. Learned Counsel also submitted that a mere confessional statement under Sections 25 or 26 of the Evidence Act, without any corroboration must be held to be a very weak piece of evidence and no conviction could have been based upon such weak piece of evidence.
13. Learned APP Mr.Soni, while supporting the impugned judgment and order relied upon the testimony of PW Nos.7, 8, 9 and 14, as also other Police Witnesses and submitted that both incidents i.e. the first at around 12:00 night and the other at a time before 05:00 a.m. were established beyond reasonable doubt and the chain of circumstances was so perfect, that there was no room for the inference of innocence of the appellant. In his submission, PW No.8 being son of the appellant would not have normally implicated his father unless there was really a case against the appellant. He also submitted that bald assertions that PW No.8 and his mother were interested in the properties of the appellant without rendering any proof to that effect were made in the Court below and such stand of the appellant was rightly rejected by the Court below. Learned APP therefore submitted that conviction of the appellant recorded by the Court below should be maintained. He also invited attention of this Court to further statement made by appellant under Section 313 of Cr.PC wherein the appellant has failed to explain blood stains on his garments. In his submission, this was very important circumstance pointing to the guilt of the appellant.
14. Having considered arguments advanced by learned Counsel and perused the oral as well as documentary evidence on record, it appears that incident in question is said to have occurred in two parts; first being around twelve midnight and the second at any time before 05:00 a.m. Prosecution has relied upon the first as a motive for the second part. For the reasons recorded hereunder we find that while the first part is established, the second is not.
15. PW NO.7 Jummabhai examined at Exh.23 is a neighbour of the appellant and therefore independent witness. He deposes about the appellant having called him when D-1 and D-2 were trying to disconnect the electricity supply. This statement of PW No.7 gets corroboration from the contents of FIR wherein also appellant is alleged to have made a statement that when D-1 and D-2 were trying to disconnect the electricity supply, he called PW No.7. PW No.7 asserts and re-asserts about the presence of appellant during the quarrel and commotion with D-1 and D-2, thus, belying the say of the appellant in his statement under Section 313 of Cr.PC that during the incident in question he was staying at Dhavalshah Pir Dargah in Village Sikka itself. He also corroborates the statement of PW No.15- Abdul Karim who was asked to inquire about the incident by PW No.17-Shri H P Doshi, the I.O. PW No.15 testifies that when he was asked to inquire about the incident, he, in order to locate the house of the appellant, knocked the door of the house of PW No.7. PW No.7 also corroborates the testimony of PW No.15 when he says that Police came with the appellant and took him to the terrace.
16. As per testimony of PW No.7, it appears that he was at the scene of offence only during initial part of first occurrence i.e. before PW No.8 came inasmuch as each of them deposed about each others absence. PW No.7 was called when D-1 and D-2 climbed the electrical pole to disconnect the electricity supply. He came out and asked the boys as to what was the matter and on that both of them left the scene. However, when he went back, the commotion continued for about five or ten minutes. PW No.8 deposes of he having come and seen the appellant abusing his sons and when he came, PW No.7-Jumma was not there and thus it appears that after PW No.7 left the scene and the commotion continued, PW No.8 arrived. As per his testimony, his other brother Abbas went to sleep in his room and D-1 and D-2 also went to sleep on terrace. As per PW No.8, PW No.9 is mother of the witness and appellant and PW No.9 off and on had quarrel, on account of which, she used to leave the house frequently. This fact is also corroborated by PW No.7 when he says that at times they used to stay together and yet some times, they separated themselves. In the cross-examination, nothing substantial in favour of the appellant could be elicited in relation to the first incident. Similarly, in so far as the first incident is concerned, nothing substantial could be elicited from the cross-examination of PW No.8 by appellant. Thus, the first incident, which is alleged to be a motive for the appellant to commit a crime during the second incident, at his house in Sikka, is established beyond reasonable doubt.
17. The genesis of the prosecution story is based upon the contents of FIR as well as extra judicial confession allegedly made by the appellant before PW No.8 immediately after the incident in the early morning at about 05:00 a.m. on 20/07/2005. It is settled law that though conviction can be based upon a confessional statement, such statements are required to be appreciated and analyzed with circumspection and on close scrutiny. Further, we are mindful of the fact that circumstantial evidence sought to have relied upon by the respondent, is required to be analyzed in light of the well settled legal position that unless whole chain of circumstances without any gap, leaving no room for innocence of the accused was established, he could not have been convicted.
18. Admittedly, the first incident was over around 12:00 or 12:30 in the night and thereafter every one present there including the appellant went to sleep. In the FIR it was alleged that appellant went to sleep at about 02:00 a.m. and got up at 03:50 a.m., got crowbar, went to terrace where D-1 and D-2 were sleeping with their head in their respective opposite directions and not parallel. Pausing here for a moment, it is not shown by the prosecution as to what made the appellant to suddenly rise from his bed after about three or three and half hours of the incident. Normally, if there is such a huge gap after a commotion, a person will cool down. In absence of any cogent evidence as to provocation of the appellant to kill his young sons without there being any serious enmity with them, it is hard to digest the fact that appellant simply went to terrace and killed both of them.
19. Further, admittedly both D-1 and D-2 were sleeping with their faces in opposite directions i.e. Rajak was sleeping with his head parallel to the legs of Sultan. The appellant allegedly was the only assailant armed with crowbar. It is not explained by the prosecution as to how it was possible for him to kill his two young sons simultaneously. Both D-1 and D-2 were assaulted by crowbar on head. According to prosecution, Rajak was assaulted first. On receipt of a severe blow, the person would naturally scream loud enough to wake up the other man sleeping immediately next to him. Therefore, there would have been a certain resistance if not from Rajak, but at least from Sultan, who was assaulted after Rajak. However, as per the prosecution case, Sultan was also killed while in sleep, which is not possible. Further, the crowbar, according to prosecution, was weighing about 4 to 5 Kgs., and if both the deceased were having head in their respective opposite directions and if Rajak was assaulted first, the appellant would require at least few seconds to reach the head of Sultan with crowbar in his hand. As Rajak was seriously hit as stated above in all probabilities, he would make a loud scream. Because of such scream and the time taken by appellant for reaching the head of Sultan, with crowbar in his hand, there were all chances of waking up of Sultan and offering resistance.
20. Additionally, in the FIR it is stated that the appellant had cleaned the crowbar; whereas FSL report indicates the blood stains on crowbar. Further, blood group of Rajak is detected as A and that of Sultan is O group; but the crowbar bears blood stains only of group A . Admittedly, same crowbar was used for killing both of them and if it is believed that same crowbar was used, it should contain mixed blood stains of both groups and perhaps the blood group would have been beyond determination.
21. It is stated in the FIR that appellant waited for two hours on the terrace to ensure the death of D-1 and D-2. This conduct of a criminal who is armed with deadly weapon like crowbar appears to be unnatural inasmuch as to ensure the death, a criminal will simply inflict additional fatal blows and will not wait at the cost of being seen or arrested. Therefore, this story does not appeal to us.
22. PW No.8 has come out with a story of extra judicial confessional statement having been made by appellant before him at about 05:00 a.m. According to him, when appellant came to him, he had in his possession a crowbar soaked with blood. After confessing before PW No.8, appellant went into next room, placed the crowbar there and went to another room and fetched a sum of Rs.23,000/- and gave it to PW No.8 advising him that he may live his own life and that appellant himself was surrendering to the Police.
23. It is required to be appreciated that appellant had another son Abbas, who was staying separately in the same building. As per the prosecution case, Abbas was auto-driver. Village Sikka may be having population of roughly five to ten thousand people. Amongst such population to get commuters in auto-rickshaw to earn livelihood cannot be said to be an easy job. PW No.8 was employed as a cleaner in his father s truck. Compared to auto-rickshaw, truck is a costly vehicle. PW No.8 was in possession of a truck as a cleaner. It is the case of PW No.8 that he was helped by his father to escape. No plausible reasons are brought on record as to why in absence of any enmity between Abbas and appellant, the appellant would equally not help Abbas and his family to escape from scene of offence. We are unable to digest such unnatural conduct of a father. As stated above, perhaps both Abbas and Gulam were in almost similar financial condition and in absence of any enmity against Abbas, a father would naturally wish well for both the sons and would not select only Gulam and oblige him with Rs.23,000/- leaving not even a single penny for Abbas. Interestingly, except few statements here and there in relation to Abbas, he is totally kept out of the picture during the whole investigation and trial.
24. It is the say of PW No.8 that he was obliged with Rs.23,000/- by the appellant. He was working with the appellant as cleaner. If we accept this fact, the only inference can be that appellant had attachment with PW No.8. Appellant wanted PW No.8 to be saved and thus wanted him to escape from the scene of offence. This positive conduct of the appellant is said to have been repaid by PW No.8 by implicating him in a serious offence only on the basis of his confessional statement. Normally, a son in absence of any serious enmity with father, would never implicate him in serious offence. Therefore, implication of appellant by PW No.8 in a serious offence, appears to be his unnatural conduct. It is true that the fear of his being implicated in the offence on account of his absence from Village Sikka immediately after occurrence by PW No.8 is well placed but his returning and implicating the appellant in a serious offence in absence of any enmity with him, is a fact which cannot be digested.
25. It appears from the above discussed facts that PW No.8 could have been major beneficiary on appellant being jailed for life; inasmuch as, the truck was already in his possession as a cleaner. Abbas was already earning by runing auto-rickshaw and thus PW No.8 would have enjoyed the ownership of the truck without any obstructions if appellant was to suffer a life in jail. Therefore, the possibility of PW No.8 implicating the father cannot be ruled out.
26. It is also borne out from the record that after the appellant was jailed, PW No.9-mother of PW No.8, wife of accused who is established to have been driven out of the house by appellant on account of frequent quarrels amongst them, immediately occupied the appellant s house after vacating the rented premises. Considering this fact, possibility of PW No.9 instigating PW No.8 to implicate her quarrelsome husband in a serious offence to get rid of him, cannot be ruled out. This is more so when PW No.9 herself deposes that on return, PW No.8 handed over to her a sum of Rs.20,000/- against Rs.23,000/-, which was given to him by the appellant. This fact shows that PW No.8 had sympathy and affection for PW No.9. The possibility of PW No.9 taking advantage of such sympathy and instigating PW No.8 to implicate the appellant in serious offence cannot be ruled out.
27. Considering above discussed facts and evidence, the prosecution though has been successful in establishing the first incident; it has miserably failed to establish the same as motive for the second incident. There are huge gaps in the chain of circumstances as discussed above. Therefore the conviction of the appellant cannot be sustained. Unfortunately, the trial Court did not appreciate the facts in the context of the evidence available before it and therefore we are not inclined to accept the reasons given by the trial Court for conviction of the appellant.
28. Under the circumstances, the appeal deserves to be allowed and the same is allowed. The judgment and order of conviction and sentence rendered in Sessions Case No.107 of 2005 on 29/03/2006 by the learned Additional Sessions Judge, Fast Track Court No.3, Jamnagar is set aside. The appellant is acquitted of all the charges levelled against him. He is ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid by the appellant, is ordered to be refunded to him. Yadi of this Farad shall be forwarded to the Jail Authorities immediately.
(K.S.JHAVERI, J.) (G.R.UDHWANI, J.) sompura Page 18 of 18