2024 INSC 590
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 2828-2829 OF 2023
ALLARAKHA HABIB MEMON ETC. ....APPELLANT(S)
VERSUS
STATE OF GUJARAT ....RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). 112 OF 2024
J U D G M E N T
Mehta, J.
1. Heard.
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
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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
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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
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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.
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’).
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
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medically examined by the Medical Officer, Dr. Arvindbhai(PW-2) who
after examining him, issued a medical certificate(Exhibit P-17).
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.
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
5
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.
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.
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9. Since the appeals arise out of a common judgement, the same
were heard and are being decided by this judgement.
Submissions on behalf of the accused-appellants:-
10. Learned counsel appearing on behalf of the accused appellants
advanced the following submissions beseeching the Court to accept
the appeals, set aside the impugned judgments and acquit the
accused appellants of the charges: -
10.1 Demistalkumar, Police Constable(PW-12), projected to be an
eyewitness of the incident, was admittedly the first to reach the police
station with two weapons collected from the crime scene at 9:15 pm.
However, surprisingly, his statement was either not recorded or if
recorded, the same never saw the light of the day. The FIR(Exhibit P79) which ought to have been registered on the earliest version of
Demistalkumar(PW-12) was lodged at a much later point of time on
the basis of a statement given by the first informant, Mohammad Arif
Memon(PW-11) to S.N. Ghori, Police Sub-Inspector(PW-17) at 11:00
pm. The fact that Demistalkumar(PW-12) had reached the police
station at the earliest point of time along with the weapons used in
the crime is admitted by the prosecution and is fortified by the
evidence of panch witness, Mohammad Hussain(PW-5), who stated
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that he was informed by the police that a person named
Demistalkumar(PW-12) had produced the weapons at 9:15 pm.
10.2 Demistalkumar(PW-12) admitted in his cross-examination
that after reaching the police station, an enquiry was made from him
by the higher officials. As Demistalkumar(PW-12) is projected to be
an eyewitness who had produced the weapons used in commission of
the crime and had also been questioned about the incident at the
police station at the earliest point of time, his statement which
presumably was the first detailed disclosure about the incident, would
have assumed the character of an FIR. However, his statement was
never brought on record, which tantamounted to deliberate
concealment by the prosecution. These proceedings which took place
at the police station would definitely have been recorded in the daily
diary(roznamcha) maintained at the police station. However, these
vital aspects of the case have been intentionally withheld by the
prosecution who failed to produce the corresponding daily diary entry
before the Court, warranting an adverse inference to be drawn. In
support of this contention, learned counsel placed reliance on a
judgment rendered by this Court in the case of Tomaso Bruno &
Anr. v. State of Uttar Pradesh1
. It was urged that the statement of
1
(2015) 7 SCC 178
8
Demistalkumar(PW-12) was legally required to be treated as the first
and foremost information.
10.3 That the explanation offered by Demistalkumar(PW-12), for
not lodging the FIR of the incident, stating that an another person
was already present there at the police station at 9:15 pm for giving
the complaint, is falsified by the testimony of S.N. Ghori, Police SubInspector(PW-17), who testified on oath that the statement of first
informant, Mohammad Arif Memon(PW-11) was reduced into writing
by him at Krishna Medical Hospital, Karamsad at 11:00 pm.
10.4 That the evidence of Demistalkumar(PW-12) also creates
grave doubt about the very presence of the first informant,
Mohammad Arif Memon(PW-11) at the place of incident, as the
witness clearly stated in his evidence that he saw only the injured
lying at the crime scene in a profusely bleeding condition.
10.5 That Demistalkumar(PW-12) made gross improvements in
his evidence while identifying the three appellants in the dock for the
first time after a span of more than two and a half years. The witness
admitted in his cross-examination that he had not provided any
details in his statement, recorded under Section 161 CrPC, about the
identity of assailants. The identification in the dock without any Test
Identification Parade(TIP) is a weak and unreliable piece of evidence.
9
In support of this submission, learned counsel placed reliance on the
judgment rendered by this Court in the case of Amrik Singh v. State
of Punjab 2
.
10.6 That K.N. Waghela, Head Constable(PW-16), posted at the
Anand Town Police Station admitted in his cross-examination that a
telephonic wardhi about the incident was noted down by him.
However, the witness was not in a position to recollect the exact time
of recording of the telephonic wardhi. The witness stated that it was
mentioned in the telephonic wardhi, that an indiscriminate assault
with sword and other sharp weapons had been made upon
Mohammad Sohail(deceased). It was admitted by the witness in his
cross-examination, that no reference of a sword was made in the FIR.
It was also admitted that there was no reference of dagger and gupti in
the telephonic wardhi. It was contended that the daily dairy entry
pertaining to the recording of the telephonic wardhi was also not
produced on record by the prosecution which tantamounts to
concealment of vital facts requiring adverse inference to be drawn
against the prosecution.
10.7 That the information about the commission of crime had
been received at the police station at 9:15 pm, is clear from the
2
(2022) 9 SCC 402
10
evidence of Demistalkumar(PW-12) and therefore, the statement of the
first informant(PW-11) recorded by S.N. Ghori, PSI(PW-17) at a later
point of time, would tantamount to a statement under Section 161
CrPC and resultantly, it will be hit by Section 162 CrPC. In support of
this contention, learned counsel placed reliance on a judgment
rendered by this Court in the case of Animireddy Venkata Ramana
& Ors. v. Public Prosecutor, High Court of Andhra Pradesh3
.
10.8 Mustaq(PW-13), another projected eyewitness to the
incident, deposed that he was also present at the place of occurrence
and had seen the accused appellants assaulting the deceased. The
witness, while deposing on oath, made grave improvements in his
testimony inasmuch as in his previous statement under Section 161
CrPC, he had clearly stated that he was at his house at the time of
alleged incident and that he received a call from the father of the
deceased, Mohammad Iqbal Memon(PW-14), about the attack made
on the deceased. Thus, Mustaq(PW-13) spoke a blatant lie in his
deposition while trying to assume the status of an eyewitness without
actually being present at the crime scene. His claim in this regard is
further belied by the testimony of Mohammad Iqbal Memon(PW-14),
who stated on oath that it was he who had informed Mustaq(PW-13)
3
(2008) 5 SCC 368
11
about the incident. It was contended that if at all Mustaq(PW-13) was
present at the place of incident, then he would have been the one to
inform the father of the deceased, Mohammad Iqbal Memon(PW-14)
about the incident and not the other way around.
10.9 That the evidence of Demistalkumar(PW-12) and K.N.
Waghela, Head Constable(PW-16) completely contradicts the evidence
of the so-called eyewitnesses Mustaq(PW-13) and first informant,
Mohammad Arif Memon(PW-11) and brings their presence at the
crime scene under a grave shadow of doubt.
10.10 That the first informant, Mohammad Arif Memon(PW-11),
stated on oath that two other persons, namely, Mehboob Abdul
Rehman Memon and Irfanbhai Memon, being the colleagues of the
deceased were also present at the spot. However, these two persons
were not examined in evidence for reasons best known to the
prosecution.
10.11 That the first informant, Mohammad Arif Memon(PW-11) did
not make any claim in the FIR that he too had sustained an injury in
the alleged incident. However, he later claimed that he was also
injured in the incident, upon which he was medically examined on
the next day of the incident by Dr. Arvindbhai(PW-2). The doctor(PW12
2) admitted in his cross-examination that the injury No.2 could be the
result of itching and scratching.
10.12 That the first informant, Mohammad Arif Memon(PW-11)
claimed in his evidence that he lifted the victim and placed him in a
rickshaw, after he had been indiscriminately assaulted by the accused
appellants using sharp weapons. However, he admitted not having
received any blood stains either on his person or on his clothes, which
was bound to happen if he had actually assisted in boarding the
profusely bleeding victim on to the rickshaw.
10.13 That none of the so-called eyewitnesses were actually
present at the crime scene; they never saw the incident and a case of
blind murder had been foisted upon the accused appellants because
of prior enmity.
10.14 That the trial Court and the High Court heavily relied on
the circumstance that the accused appellants had collected weapons
in the dicky of the scooter. However, neither any scooter was recovered
by the police nor did any witness gave evidence in support of the
above allegation. This circumstance which the prosecution banked
upon heavily in order to bring home the charge of criminal conspiracy
against the accused-appellant was not substantiated by any tangible
evidence.
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10.15 That as per the prosecution, the accused appellants were
arrested by the police on 9th May, 2011 i.e. after 5 days from the date
of alleged incident at a short distance from Memon Colony, where the
accused-appellants reside, while they were trying to flee away on a
motorcycle. It is highly improbable that the accused-appellants, after
committing such a grave crime would continue to reside in close
vicinity of the crime scene. Had there been any iota of truth in the
prosecution case, the police would have arrested the accused
immediately after the incident because they were all along available at
their respective homes which are located just nearby to the place of
incident.
10.16 That the recoveries/discoveries made at the instance of
the accused-appellants are fabricated and were not proved by
convincing/tangible evidence.
Submissions on behalf of the respondent-State: -
11. Per contra, learned counsel appearing for the respondent-State,
vehemently and fervently opposed the submissions advanced by the
learned counsel for the accused-appellants. Learned counsel for the
respondent-State advanced the following submissions craving
dismissals of the appeals:-
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11.1 That the prosecution case is based on clinching testimony of
eyewitnesses which is corroborated in material particulars by the
evidence of Dr. Swapnil(PW-1) and so also the incriminating
recoveries effected by the Investigating Officer(PW-18).
11.2 That the FIR(Exhibit P-79) was lodged with utmost
promptitude i.e. within two and a half hours of the incident. The
accused appellants were named in the FIR. The first informant,
Mohammad Arif Memon(PW-11) had no motive whatsoever to falsely
implicate the accused appellants for the crime. The promptitude in
lodging of the FIR lends succour to the prosecution case.
11.3 That it is an admitted case that a day before the incident,
Mohmedfaruk @ Palak and Mohammad Sohail(deceased) had
indulged in a quarrel during a meeting owing to the issue of shortage
of water in the colony. Being enraged by this controversy,
Mohmedfaruk @ Palak conspired with Amin @ Lalo Aarifbhai Memon
and Allarakha Habib Memon and launched the pre-planned
indiscriminate attack upon Mohammad Sohail, causing fatal injuries,
leading to his death, and causing injuries to the first informant,
Mohammad Arif Memon(PW-11).
11.4 That the attack on the deceased was pre-mediated and
gruesome, inasmuch as, 29 injuries were caused to the deceased by
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sharp and blunt weapons and no part of his body was spared. The
injuries so inflicted upon Mohammed Sohail(deceased) proved
instantaneously fatal which fact was duly proved by Dr. Swapnil(PW1).
11.5 That Dr. Arvindbhai, Medical Officer(PW-2) proved the injuries
of the first informant Mohammad Arif Memon(PW-11) which
corroborates the presence of the witness(PW-11) with the deceased at
the crime scene. In addition, thereto, Dr. Arvindbhai(PW-2) also
examined and proved the injuries sustained by the accused
appellants during the incident which again corroborates the
prosecution case regarding active participation of the accused
appellants in the incident.
11.6 That the prosecution led clinching evidence to establish the
guilt of the accused and therefore, the trial Court was justified in
convicting the accused-appellants as above. The High Court too did
not commit any error while affirming the judgment of the trial Court
and upholding the conviction of the appellants herein.
11.7 That two competent Courts sifted and made detailed analysis
of the entire evidence and thereafter, have recorded concurrent
findings of facts, holding the accused appellants guilty of the charges,
and thus, this Court should not feel persuaded to exercise its
16
jurisdiction under Article 136 of the Constitution of India, so as to
interfere in the well-reasoned judgments rendered by the trial Court
and the High Court.
12. We have given our thoughtful consideration to the submissions
advanced at bar and have perused the impugned judgments. We have
minutely scanned the record with the assistance of the learned
counsels representing the parties.
Discussion and Conclusions: -
13. As per the prosecution case, the FIR(Exhibit-79) was registered
on 4th May, 2011 at 11:00 pm on the basis of the oral statement given
by the first informant Mohammad Arif Memon(PW-11) to S.N. Ghori,
PSI(PW-17) at Krishna Medical Hospital, Karamsad. The first
informant, Mohammad Arif Memon(PW-11) deposed in his testimony
that an incident had taken place on 3rd May, 2011 in their colony
wherein, allegedly Mohammad Sohail(deceased) made some
imputations against Mohmedfaruk, thereby annoying the accused
Mohmedfaruk @ Palak. On the next day, i.e., on 4th May, 2011 at
about 8:30 pm, the first informant(PW-11) along with his cousin
Mohammad Sohail(deceased) had gone to Shah petrol pump, near
Bhalej Road overbridge for filling petrol in their scooter. Having
refuelled the scooter, they proceeded towards the Bhalej overbridge for
17
going home. At that point of time, Mohmedfaruk @ Palak came
around and asked for the mobile number of Mohammad Hussain, a
friend of the first informant(PW-11) who used to reside at Bangalore.
The first informant(PW-11) stopped the vehicle and was trying to look
for the number of Mohammad Hussain saved in his mobile at which
point of time, the accused Amin@ Lalo Aarifbhai Memon and
Allarakha Habib Memom also reached there. Accused Mohmedfaruk
@ Palak insinuated as to why Mohammad Sohail had insulted him in
the meeting convened earlier in the Memon colony to discuss the
issue of water. Amin@ Lalo Aarifbhai Memon suddenly took out a big
knife concealed on his person and inflicted a blow thereof on the head
of Mohammad Sohail(deceased). Allarakha Habib Memon took out a
gupti and after removing the cover thereof, inflicted a blow on the
head of Mohammad Sohail who started running towards the petrol
pump in order to escape. Mohmedfaruk @ Palak also chased
Mohammad Sohail, whereupon, the first informant(PW-11) tried to
intervene, but he was given a push by Mohmedfaruk @ Palak and fell
down as a result. Accused Mohmedfaruk @ Palak also took out a big
knife being carried by him and inflicted a blow thereof on the back of
Mohammad Sohail after chasing him down. Having received multiple
injuries in the assault laid by the accused appellants, Mohammad
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Sohail fell down on the road just outside the petrol pump. A
policeman was present near the petrol pump who came running
towards Mohammad Sohail and on seeing him, the three assailants
started running away with their weapons. In the intervening period,
Mehboob Abdul Rehman Memon and Irfanbhai Memon, colleagues of
Mohammad Sohail also arrived at the spot. Accused Allarakha Habib
Memon and Amin @ Lalo Aarifbhai Memon threw down their weapons
whereas, Mohmedfaruk @ Palak ran away carrying the knife held by
him. The first informant(PW-11) noticed large number of injuries on
the body of Mohammad Sohail. Someone stopped a rickshaw wherein;
Mohammad Sohail was boarded, and he was taken to Anand Nagar
Palika Hospital for treatment. On reaching the hospital, they came to
know that the doctor was on leave on which, the first informant(PW11) gave a call to his uncle Mohammed Iqbal Memon(father of the
deceased) who came to the Anand Nagar Palika Hospital with a
Maruti van. Mohammad Sohail was placed in the van and was taken
to Krishna Medical Hospital, Karamsad for treatment where the duty
Doctor examined him and declared that he had expired. The first
informant(PW-11) stated that when Mohammad Sohail was being
taken in the van, at that time, he, Mohammad Sohail’s father
Mohammed Iqbal Memon, Sikander Abdul Karim Chokshi, Munafbhai
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Farooqbhai Memon and Mustaq Mohammad Siddiqbhai Memon were
also present in the vehicle. The aforesaid oral statement was treated
to be the complaint(Exhibit P-79) and came to be registered as the
formal FIR.
14. Apparently, going by the allegations made in the FIR(Exhibit P79), there were two eyewitnesses to the incident, namely, the first
informant, Mohammad Arif Memon(PW-11), and the Police Constable,
Demistalkumar(PW-12) who were present at the petrol pump.
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: -
Examination-in-Chief:
“Since last 3 years I am discharging duty at Anand Town
Police Station at L.R. Police constable.
On 4/5/11, I was having my duty at Shah Petrol Pump
which is situated towards Anand at Bhalej bridge between
morning hours 10 to 2400(sic). At 8:30 o’ clock in the night, I
came to know that some scuffle has taken place opposite
Radhaswami Chamber. Hence I came on road from Shah
Petrol Pump. Once person was found lying there in bleeding
condition. He had fallen down at small garden near Mahendra
Shah Petrol Pump and 3 persons were running towards him to
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beat him. They were having weapons like knife and Gupti.
Upon seeing me, 2 persons out of the 3 had thrown away their
weapons and 3rd person ran away towards the bridge.
Thereafter the person who was having bleeding was made to
sit in the rickshaw and was sent for treatment. His relative
came and the weapons were deposited at police station. I
came to know that the person who was having bleeding had
passed away at Shri Krusna hospital. Police had taken my
statement once only. I had presented one big knife and Gupti
at police station and I can recognise those weapons if I am
shown those weapons.”
…
“I can identify 3 persons which I have mentioned. Upon being
asked to 1st identified 2 accused out of the persons present in
the court today, he identifies 2 accused. One of them is Amin
Arif Memon and another one is Farooq Safi Memon.”
Cross-examination:
“One person told me that something wrong is going on and
hence I came to know about the things because of which I
went to the road and thereafter people got together. Within 3-
4 minutes people got together.”
…
“There was one person in the rickshaw along with the injured
person.”
…
“It was approximately 6 minutes between my having seen the
injured person and the injured person having gone in the
rickshaw. I had tried to help in keeping the injured person in
the rickshaw. That person was having severe bleeding.
During placing the injured person in the rickshaw, my clothes
got blood stains. Those clothes I had not handed over to the
police. Police had not asked those clothes. After that injured
person was taken to hospital, at about 9:15 o’ clock I had gone
to the police station. I had gone to Anand Town Police Station.
I had gone with the weapons. I had not gone with the weapons
not covered. Those weapons were given to Saheb. I was
enquired by the Saheb. I had not lodged any complaint.
Reason for not giving complaint was that, there was one
person sitting over there for giving the complaint. He was
sitting there at 9:15 o’ clock. I do not know what proceeding
was carried out after I had deposited those weapons. I stayed
at police station for nearly 20 minutes. It is true that, in this
regard I had not made any report to the police. On the day I
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had gone to the police station my statement was not taken. It
is true that, my statement was taken the next day and in that
statement there is no description about the persons whom I
have seen or about their clothes.”
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.
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
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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.
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.
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.
23
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.
20. Since the Police Constable, Demistalkumar(PW-12) claiming to be
an eyewitness to the heinous assault had reported at the police
station with the crime weapons, there was no reason whatsoever as to
why his statement would not have been recorded immediately on his
arrival at the police station. From the circumstances discussed above,
a reasonable doubt is created in the mind of the Court that the
statement of Demistalkumar(PW-12) would definitely have been
recorded in the daily diary(roznamcha) but his version may not have
suited the prosecution case and that is why, the daily diary entry was
never brought on record. Non-production of the daily diary is a
serious omission on part of the prosecution.
24
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.
22. The FIR(Exhibit-79) was registered on the basis of the oral
statement of the first informant(PW-11) recorded at Krishna Medical
Hospital, Karamsad by S.N. Ghori, PSI(PW-17). The witness(PW-17)
stated in cross-examination that Demistalkumar(PW-12) met him at
the police station at around 2:30 am on 5th May, 2011. No information
about the incident was received at the police chowki. He came to
know at about 10:00 pm that some cognizable offence had been
committed. The said information was based on a wardhi received from
the hospital which was issued by Dr. Varun Patel. On receiving this
wardhi, he proceeded to the Krishna Medical Hosptial, Karamsad at
about 10:00 pm where he met the first informant. He stayed at the
hospital for about one and a half hours. The witness, S.N. Ghori,
25
PSI(PW-17) also admitted that the complainant did not mention in the
complaint that he had received any injuries in the incident. Thus,
there is a huge cloud of suspicion on the very threshold of the
prosecution case i.e. the time and manner of lodging of the
FIR(Exhibit-79).
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.
24. Now, we shall proceed to discuss the evidence of the star
prosecution eyewitness, namely, Mohammad Arif Memon(PW-11), the
26
first informant. The witness(PW-11) narrated the details of the
incident as were stated by him in an oral statement given to S.N.
Ghori, PSI(PW-17) on 4th May, 2011 at the Krishna Medical Hospital,
Karamsad which was treated to be the FIR(Exhibit P-79). In addition
to the facts as set out in the FIR, the witness also alleged that he also
received an injury on his head when he fell down as a result of the
push given by Mohmedfaruk @ Palak. A very important fact which
emerges from the evidence of the first informant(PW-11) is that he
categorically stated that he gave a complaint of the incident by
personally appearing at the Anand Town Police Station. He further
stated that after he had given the complaint, the police called him
next morning after the incident and that he had pointed out the crime
scene to the police. Only thereafter, he signed the complaint.
Apparently thus, from the version set out in the examination-in-chief
of the first informant(PW-11), there is a grave discrepancy regarding
the time and place of lodging the complaint.
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
27
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
28
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.
26. As per the deposition of S.N. Ghori, PSI(PW-17), the oral
statement of Mohammad Arif Memon(PW-11) was taken down in
writing at the Krishna Medical Hospital, Karamsad and the same was
treated to be the complaint(Exhibit-79) which came to be registered as
CR No. 141 of 2011 for offences punishable under Sections 302, 120B
and 323 IPC. The formal FIR was exhibited during the deposition of
29
S.N. Ghori, PSI(PW-17) who stated that on 4th May, 2011, while
performing duty as Police Sub-Inspector(PSI) in the Sardar Bagh
Police Station of Anand Town, he got information that three persons
had caused injuries to Mohammad Sohail(deceased) near Shah petrol
pump on Bhalej Road at about 8:00 pm. He was apprised that the
injured was first taken to Nagar Palika Hospital, Anand in an
autorickshaw and from there, the father of the injured took him to
Krishna Medical Hospital, Karamsad in his van for further treatment.
Upon this, the PSI(PW-17) proceeded to Shri Krishna Medical
Hospital, Karamsad where he met the first informant Mohammad Arif
Memon(PW-11) who narrated the details of the incident which was
drawn up as the complaint. The witness marked Exhibit P-79 on the
complaint and proved his signature thereupon.
27. The complaint(Exhibit P-79) was registered as a formal FIR by
witness K.N. Waghela, Head Constable(PW-16) who testified that he
had been performing duties as a Head Constable in Anand Town
Police Station for last four years. He was present on duty on 4th May,
2011. The complainant Mohammad Arif Memon(PW-11) filed a
complaint against Mohmedfaruk @ Palak and others to S.N. Ghori,
PSI(PW-17) at 11:30 pm. The said complaint was forwarded to the
police station Anand Town and accordingly, CR No. 141/2011 was
30
registered, and investigation was assigned to DhananjaySinh Waghela,
Police Inspector(PW-18). The station diary of the Anand Town Police
Station was proved as Exhibit P-97 wherein, the factum of registration
of the FIR is recorded. The witness also stated that a telephonic
wardhi forwarded by Dr. Varun Patel, Shri Krishna Medical Hospital,
Karamsad was also entered in the station diary on which the
witness(PW-16) as well as S.N. Ghori, PSI(PW-17) had signed. The
said wardhi was prepared at 10:00 pm whereas, the complaint was
received at the police station at 11:30 pm.
28. Certain very significant incongruencies come to the fore on a
minute evaluation of the evidence of Mohammad Arif Memon, the first
informant(PW-11), K.N. Waghela, Head Constable(PW-16) and S.N.
Ghori, PSI(PW-17). Whilst Mohammad Arif Memon(PW-11), the first
informant categorically stated that he drafted the complaint and
submitted it at the Anand Town Police Station, but in total
contradiction thereto, S.N. Ghori, PSI(PW-17) stated that the
complaint was registered on the basis of the oral statement of the first
informant, Mohammad Arif Memon(PW-11) which he took down in
writing at the Krishna Medical Hospital, Karamsad. On a careful
perusal of the complaint(Exhibit P-79) which subsequently came to be
registered as the FIR, it is manifest that no time of recording is
31
mentioned thereupon. Another very relevant fact which manifests
from the complaint/FIR is that there is no endorsement as to the date
and time on which the said FIR reached the Court concerned. Going
by the highlighted excerpts(supra) from the testimony of Mohammad
Arif Memon(PW-11), the actual complaint filed by him at the police
station seems to have been withheld and there are genuine reasons to
hold that the FIR is a post investigation document.
29. This Court in the case of State of A.P. v. Punati Ramulu and
Others4 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
4
1994 Supp (1) SCC 590
32
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)
30. In this regard, we are also benefitted by a recent judgment of this
Court in the case of Babu Sahebagouda Rudragoudar and Others
v. State of Karnataka5
, the relevant portion of which reads as
under: -
“47. Apparently, thus, the close relatives of the deceased had
gone to the police station in the late hours of 19th September
itself. If this version was true then, in natural course, these
5 2024 OnLine SC 561
33
persons were bound to divulge about the incident to the police
and their statement/s which would presumably be about an
incident of the homicidal death would have mandatorily been
entered in the Daily Dairy of the police station if not treated to
be the FIR. However, the Daily Diary or the Roznamcha entry
of the police station corresponding to the so called visit by the
relatives of the deceased to the police station was not brought
on record which creates a grave doubt on the genuineness of
the FIR(Exhibit P-10). The complainant(PW-1) admitted in
cross examination that the Poujadar came to his house and he
narrated the incident to the officer who scribed the same and
thereafter, the complainant appended his signatures on the
writing made by the Poujadar. However, ASI Tikota Police
Station(PW-18) testified on oath that complainant(PW-1) came
to the police station and submitted a written report which was
taken as the complaint of the incident. He did not state
anything about any complaint being recorded at the house
of the complainant prior to lodging of the report. Thus,
there is a grave contradiction on this important aspect as
to whether the report was submitted by the
complainant(PW-1) in the form of a written complaint or
whether the oral statement of complainant(PW-1) was
recorded by the police officials at his home leading to the
registration of FIR(Exhibit P-10). The non-production of
the Daily Dairy maintained at the police station assumes
great significance in the backdrop of these facts.
Apparently thus, the FIR(Exhibit P-10) is a post
investigation document and does not inspire confidence.”
(emphasis supplied)
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
34
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.
32. Had there been an iota of truth in the claim of the first
informant, Mohammad Arif Memon(PW-11) that he was an eyewitness
to the occurrence then, there was no reason as to why he did not
divulge the details thereof to Police Constable, Demistalkumar (PW12) present at the spot. The natural reaction of any prudent man
would be to make a complaint of the incident to the policeman
present at the spot.
33. Furthermore, the Police Constable, Demistalkumar(PW-12),
stated that he got blood stains while placing the injured in the
rickshaw. On the other hand, the first informant, Mohammad Arif
Memon(PW-11), however, admitted that he did not receive any blood
stains either on his hands or on his clothes at the time when the
injured was placed inside the rickshaw. Rather, he did not
acknowledge that Demistalkumar(PW-12) also helped in placing the
victim on to the rickshaw. Had there been any iota of truth in the
version of the first informant, Mohammad Arif Memon(PW-11) that he
had seen the assault being made on his cousin brother, Mohammad
Sohail(deceased) and that he had helped in lifting the injured and
35
placing him in the rickshaw then, it is impossible that he would not
have received the blood stains from the blood oozing out from the
multiple sharp weapon injuries suffered by Mohammad Sohail. As per
Demistalkumar(PW-12), when he reached the crime scene, the victim
was lying on the ground and no one else was to be seen near him
other than the assailants. Thus, the first informant, Mohammad Arif
Memon(PW-11) seems to have abandoned his own cousin brother who
was lying on the road in gravely injured condition creating a further
doubt on his very presence at the spot when the incident occurred.
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.
35. In total contradiction to the above version of the first
informant(PW-11), Demistalkumar(PW-12) stated that he saw only one
36
person taking the injured in the rickshaw. Thus, the claim made by
Mohammad Arif Memon(PW-11) that he and Irfanbhai Memon both
took Mohammad Sohail to the hospital is contradicted by
Demistalkumar(PW-12) who is an independent witness. The first
informant, Mohammad Arif Memon(PW-11) also stated that he lodged
the complaint at the Anand Town Police Station which fact is also
contradicted by the evidence of K.N. Waghela, Head Constable(PW-16)
and S.N. Ghori, PSI(PW-17) as noted above.
36. The first informant, Mohammad Arif Memon(PW-11) admitted in
his cross-examination that after Mohammad Sohail’s father Iqbalbhai,
Sikander Abdul Karim Chokshi, Munafbhai Farooqbhai Memon and
Mustaq Mohammad Siddiq Memon arrived at the Krishna Medical
Hospital, Karamsad, the incident was discussed in presence of all who
had gathered there. He had noticed the injuries caused to the
deceased when he reached Krishna Medical Hospital, Karamsad. In
the background of the discussion made above, these incongruencies,
even though minor, reinforce the doubt created in the mind of the
Court regarding the presence of the first informant, Mohammad Arif
Memon(PW-11) at the crime scene. Thus, the argument advanced by
learned counsel for the accused appellants that the star prosecution
37
eyewitness Mohammad Arif Memon(PW-11) was not present at the
crime scene deserves acceptance.
37. Another important aspect which was elicited in the crossexamination 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).
38. The other eyewitness to the incident who was examined on
behalf of the prosecution was the Police Constable,
Demistalkumar(PW-12). We have already discussed his evidence and
38
have doubted the attempt made by the witness to identify the
accused-appellant for the first time in the dock. Hence, the testimony
of the Police Constable, Demistalkumar(PW-12) also does not help the
prosecution in linking the accused-appellant with the crime.
39. So far as Mustaq(PW-13) is concerned, who was treated to be an
eyewitness of the incident and whose testimony was relied upon by
the trial Court as well as the High Court, suffice it to say that there
are ample circumstances on record which deny the claim of the
eyewitness that he had seen the alleged assault been made on the
deceased. Firstly, the name of Mustaq(PW-13) does not figure in the
FIR(Exhibit P-79) as an eyewitness to the incident. Furthermore,
when he was examined under Section 161 CrPC, he categorically
stated that he was at his house and that the information of the
incident was given to him by the father of the deceased, Mohammad
Iqbal Memon(PW-14). In this background, when the witness was
confronted during cross-examination, he could not explain the grave
improvement. Thus, we have no hesitation in holding that,
Mustaq(PW-13) was falsely portrayed to be an eyewitness of the
incident, and his testimony cannot be relied upon.
40. The trial Court as well as the High Court, placed extensive
reliance on the confessions of the accused appellants Mohmedfaruk @
39
Palak Safibhai Memon and Amin @ Lalo recorded by the Medical
Officer, Dr. Arvindbhai(PW-2) while preparing the injury reports of the
accused.
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.
42. The trial Court as well as the High Court heavily relied upon the
FSL reports(Exhibits 111-115) to hold that blood group found on the
weapons of offence incriminated the accused for the crime as the
same matched with the blood group of the deceased. In this regard, it
40
is suffice to say that the two weapons which were picked up by
Demistalkumar(PW-12) from the place of occurrence were formally
seized at the Anand Town Police Station around 2:30 am on 5th May,
2011. Only one of the panchas Mohammad Hussain(PW-5) was
examined at the trial. The seizure panchnama(Exhibit -38) records
that the three accused who had inflicted deadly blows to the deceased
with dagger, gupti and knife, threw away their weapons near the
garden and fled away from the crime scene and that police personnel
brought all the weapons to the police station. However, the
panchnama(Exhibit P-38) does not bear the signatures of the police
constable, Demistalkumar(PW-12) who admittedly collected the
weapons from the crime scene and presented them to the police
station. Thus, no credence can be given to seizure panchnama(Exhibit
P-38) because it suffers from the lacuna of not being attested by the
witness who had actually presented the weapons at the police station.
In addition, thereto, we may further note that Demistalkumar(PW-12),
the police constable who deposited the weapons at the police station,
did not state in his evidence as to whom he had given the knife and
the gupti which he picked up from the crime scene. These weapons
were seized vide seizure panchnama(Exhibit-38) which was admittedly
prepared at 2:30 am. However, the Police Constable,
41
Demistalkumar(PW-12) stated that he reached the police station at
about 9:15 pm and stayed there for only 20 minutes. These
infirmities create a doubt on the very process of seizure of the
weapons.
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 Rajasthan6
, 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:-
6
(2011) 11 SCC 724
42
“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)
44. On a perusal of the deposition of the Investigating Officer(PW18), we find his evidence on the aspect of disclosure statements made
by the accused-appellant leading to the recoveries to be totally
perfunctory and unacceptable. The witness did not elaborate upon
the words spoken by the accused-appellant at the time of making the
disclosure statements.
45. On a threadbare analysis of the entire record, we do not find that
the prosecution examined any witness who had deposed about the
link evidence/safe custody of the mudammal articles right from the
time they were received at the police station and seized till the time
the same reached the FSL. Hence, otherwise also, the FSL
report(Exhibits 111-115) pales into insignificance. Investigating
Officer(PW-18) deposed that he arrested the accused persons. A
detailed enquiry was made from all three accused-appellants, and
they were examined for the injuries found on their bodies. Thereafter,
43
all the accused-appellants conveyed their willingness to show the
place of the offence and thereafter, panchnama as per Section 27 of
the Evidence Act was prepared. Since the place of incident was also
known to police, this disclosure is irrelevant. Search of the houses of
the accused-appellant was undertaken in presence of the panch
witnesses and a big knife was seized from the house of the accused
Mohmedfaruk @ Palak, vide panchnama(Exhibit-52).
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.
47. By and large, this Court while exercising jurisdiction under
Article 136 of the Constitution of India will not interfere with the
concurrent findings recorded by the courts below. But where the
evidence has not been properly appreciated, material aspects have
been ignored and the findings are perverse, this Court would certainly
interfere with the findings of the courts below though concurrent.
44
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.
50. The accused appellants are acquitted of the charges. Accused
appellants Allarakha Habib Memon and Amin @ Lalo Aarifbhai
Memon are on bail and need not surrender. Their bail bonds are
discharged.
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51. Accused-appellant Mohmedfaruk @ Palak Safibhai Memon, shall
be released forthwith, if not required in any other case.
52. Pending application(s), if any, shall stands disposed of.
………………….……….J.
(B.R. GAVAI)
………………………….J.
(SANDEEP MEHTA)
New Delhi;
August 08, 2024
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