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CASE NO.: Appeal (crl.)  614 of 2004

PETITIONER: Idrish Bhai Daudbhai                                             

RESPONDENT: State of Gujarat                                                         

DATE OF JUDGMENT: 31/01/2005

BENCH: P. Venkatarama. Reddi & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA , J :

       The Appellant herein was convicted for commission of an offence  punishable under Section 302/34 of the Indian Penal Code (’IPC for short)  and had been sentenced to undergo rigorous imprisonment for life as also  a  fine of Rs.500/- and in default thereof to undergo additional three months’  simple imprisonment. He was prosecuted along with three others for sharing   common intention for causing death of one Siddique Ahmed Patel and  causing simple hurt with sharp  cut  weapon to Yusuf Adam Patel (PW-3).   

At about 5.45 p.m. on 29.11.1993, the deceased was allegedly going  to a mosque for offering prayer (Namaz).  When he was passing by the  house of the accused persons situated at village Sarod, all the four accused  persons were standing there.  A quarrel ensued between them, when the  deceased  Siddique was asked as to why he had entered into a transaction of  the house instead of land to which  he answered that he had entered into a  transaction with his maternal uncle, whereupon. the Appellant herein  allegedly inflicted a stick blow on his head, as a result of which he fell  down.  Accused No.1 Bilal Ahmed Ibrahim Kabha thereafter inflicted a  knife blow on his chest.  Yusuf Adam Patel tried to intervene and in the  process he was also injured; a knife injury on him was caused by the  Accused No.2.  The Accused No.3, the mother of the Appellant herein, was  said to have  a sickle in her hand.  The deceased and the injured were said to  have been taken to the referral hospital at Jambusar, where Siddique was  declared dead and the injured was asked to go to Baroda Hospital.  A First  Information Report was lodged in this behalf by one Mehmood Adam Patel.  On completion of investigation, a charge-sheet was filed for offences  punishable under Section 302 IPC, Section 302 read with Section 34 IPC,  Section 324 IPC, Section 324 read with Section 34 IPC and Section 135 of  the Bombay Police Act.

Before the learned Sessions Judge nine witnesses were examined on  behalf of the prosecution.  The learned judge while passing a judgment of  acquittal in favour of the Accused No.3, convicted Bilal Ahmed for  commission of an offence punishable under Section 302 IPC.  The Accused   No. 2 Ahmed Ibrahim Kabha was found guilty for commission of offence  punishable under Section 302/34 IPC as also under Section 324 IPC,  whereas the Appellant herein was found guilty of commission of offence  punishable under Section 302/34 IPC, whereagainst an appeal was filed.

During the pendency of  the appeal, the Accused No. 2 Ahmed   Ibrahim Kabha expired and as a result  his appeal stood abated.  The High  Court of Gujarat by reason of the impugned judgment dismissed the appeals  preferred by the Appellant as also Bilal Ahmed.  The Special Leave Petition  filed by Bilal Ahmed appears to have been dismissed by this Court by an  order dated 6.2.2004.

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Mr. K.  Radhakrishanan, the learned Senior Counsel appearing on  behalf of the Appellant, would take us to the First Information Report as also  the depositions of the witnesses pointing out contradictions and  inconsistencies contained therein.  The learned counsel would contend that  even from the Autopsy  of  Dr. Raghunandan (PW-2) it would appear that he  had not noted the colour of the wound and, thus, was not in a position to   state the time of the injury with certainty, nor did he note the exact place of   skull vault where the injury had occurred.  It was argued that the injury  allegedly caused by the Appellant herein with a stick on the head of the  deceased had not been noticed by the Investigating Officer in the Inquest  Panchnama.  The learned counsel would, therefore, urge that the prosecution  has not been able to prove beyond any reasonable doubt the role played by  the Appellant herein in the incident, nor the alleged intention shared by the  Appellant and other co-accused for causing the death of the deceased   Siddique, can be said to have been proved.

Mr. Yashank Adhyaru, learned Senior Counsel appearing on behalf of  the State of Gujarat, on the other hand, would contend that though certain  discrepancies exist in the statements of the witnesses vis-‘-vis the First  Information Report and the Post Mortem Report, there is no reason to  discard the evidences of the three  witnesses, who have proved the  prosecution case as against the Appellant.

From a perusal of the  First Information Report lodged by PW-1, it  transpires that before the alleged incident took place altercations took place  between the deceased and the accused persons as regard transaction of a  land/house belonging to the deceased.  It is stated that the Accused No.1  Bilal Ahmed and his father Ahmed Ibrahim came with knives in their hands  and Bibiben Ahmed, the mother of the Appellant, came with a sickle.   "Getting excited all of a sudden",  Bilal Ahmed is said to have given a knife  blow on the chest of the deceased and Ahmed Ibrahim is said to have given a  knife blow on the back of Yusuf Adam Patel and Bibiben Ahmed allegedly  jumped upon both these persons shouting  "Beat\005..Beat".  Meanwhile, the  Appellant herein had come out taking a stick and rushed towards  them  saying "Beat\005\005Beat".  The eye witnesses to the occurrence, viz.  PW1,  PW-3 and PW-5, on the other hand, in their respective depositions before the  court  stated that it was the  Appellant who gave a stick blow on the head of  the deceased whereafter only the injuries were inflicted by the other accused.   

The sequence of events as contained in the First Information Report,  thus, materially differs from the statements made by the prosecution  witnesses.  The First Information Report does not even contain any  statement to the effect  that the Appellant had inflicted any injury  whatsoever with the stick as was alleged by the prosecution witnesses before  the learned Sessions Judge.  The first informant who examined himself as  PW-1 in his cross-examination accepted that in his complaint he did  not  allege that he was going to pray at  the mosque, nor did he say that Siddique   fell down after he was hit by a stick.  He further asserted that he saw the  incident from a distance of about 15 feet.  He  accepted that injured Yusuf   was his brother whereas his wife is the sister of the deceased Siddique and  the deceased Siddique is the son of his uncle, and his wife is also the  daughter of his uncle.  In paragraph 5 of his deposition, however, he alleged  that when the Appellant hit the deceased Siddique with a stick, Siddique fell  flat and at that time only he and Yusuf were present.  He thereafter alleged  that the Accused Nos.1 and 2 were also present  emphasizing that they did  not go to the house to get knives but he changed the story immediately by  stating that the accused had come out of the house with knives. He further  stated that he saw the accused persons going into the house to get knives and  he thought that they would stab.    He, however, immediately thereafter  stated "after hitting with the stick, he was stabbed immediately".  He  reiterated :

"\005It is true that I have not stated in the complaint that  IDDISH hit SIDDIQUE on the head with a staff.  And I

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have not stated that the other accused came after IDDISH  hit him.  I have not stated in the complaint that  SIDDIQUE fell down after he was hit with the staff.  I  have not stated in the complaint that IDDISH had done  any illegible (sic) act.  I have also not stated that  BIBIBEN injured anybody. It is true that BIBIBEN is  present in the court and she was with the three male  membe4rs.  I do not know that if BIBIBEN was hit by a  blow of the staff\005"

       It is difficult to place any reliance on the statement of the said witness  as regards the involvement of the Appellant herein in the incident.

PW-2, Dr. Raghunandan, who performed autopsy on the dead body of  the deceased Siddqiue on 30.11.1993,  found the following external injuries  on his person :

"1.     there was one cut wound on the chest near the 7th rib  2 cm by = cm deep up to cavity.  It was between the two  lungs and it was 27 cm below the rib cage bone and 7.5 cm  away in a slant manner.  In this injury the muscles were  cut.  And the casing of the heart was injured with a wound  of 1.5  cm by .25 cm.  And the outer covering of the heart  was cut.  This wound was deep up to the left cavity of the  heart.

2.      there was a hematoma measuring 4 cm by 3 cm on  the center of the skull.  These wounds were prior to the  death."

In his cross-examination, he admitted that the colour of  injury no.2  was not  noted in the report which would have enabled him to ascertain the  time of the injury nor did he note the exact place in the skull vault where the  injury had occurred.

In the inquest panchnama, no head injury on the dead body  had been  noted.  

PW-3 is Yusuf who is an injured witness.  In his deposition, he  asserted that the Appellant had hit the deceased on the head from behind  with a stick as a result whereof he swooned and fell down; whereafter  Bilal  Ahmed who was standing next to the Appellant stabbed Siddique in the  chest and when he tried to rescue him, Ahmed Ibrahim stabbed him with a  knife in the waist on the left side, whereupon only Bibiben came with a  sickle shouting to kill them. In his cross-examination, however, he accepted  that there had been verbal heated exchanges between Bilal Ahmed and  Siddique but although at that time the people were moving on the road, he  did not see anybody except the deceased and the accused persons.  In his  cross-examination, he admitted that the house of the Appellant is not near  the mosque and it is at a far off place.  

PW-5 - Abdulla, is a vegetable merchant.  He was also going to  mosque to offer ’namaz’ after closing his shop nearby.  He stated that when  he reached near the house of the accused persons, the Appellant Idrish was  having a stick and Bilal Ahmed was having an open knife, he had seen  Siddique and Yusuf walking near the cross roads.  He alleged :

"\005.At that time Bilal had started abusing Siddik and  Bilal was staying, "Why did you enter into transaction of  house for my brother?"  At that time Siddik had told, "I  had not entered into transaction for your brother."  I have

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entered into transaction with your maternal uncle Abbas  Daud Bhatiya.  At that time Idrish Daud had got excited  and had given a blow on the head of Siddik with a long  and thick staff from behind as Siddik would have hardly  walked two steps ahead.  Therefore, on accound of  giddiness Siddikbhai had fallen down flat on the ground.   At that time all of a sudden Bilal had run and given a  blow of knife in his hand on the left portion of the chest  of Siddik.   At that time as Yusufbhai Adam Patel tried to  intervenue, Ahmed Ibrahim Kabha who was standing  nearby and was having a knife in his hand had given a  knife blow on left side back to Yusuf.  At that time  Bibiben who was standing nearby and was having a  sickle in her had had gone near Siddik and had attacked  upon him and had started shouting that put these people  to death\005"

The statements  of the witnesses, as noticed hereinbefore, vis-‘-vis the  allegations made in the First Information Report are contradictory and/or  inconsistent with each other.  Whereas in the First Information Report  nothing has been mentioned about the Appellant’s role as regard his  hitting  the deceased with a stick on his head, even the sequence of events is  different from that stated by PW-1 in his deposition before the court.

The statements made in the First Information Report in a case of this  nature must be given due importance.  Admittedly, there was a dispute with  regard to a transaction of a land/house.  PW-1‘ categorically stated that the  accused persons became agitated only after the Appellant allegedly hit the  deceased with a stick and the Accused Nos.1 and 2 went into their house and  came back with knives which  stands contradicted by the statement of PW-5  who alleged that both the Appellant and Accused No.1 were standing by the  side of the road with a stick and open knife in their hands.

In the First Information Report only one overt act is attributed to the  Appellant that is his exhortation "maro \005maro".  Such exhortation by itself  may not give rise to an inference of sharing a common intention to cause  death of the deceased Siddqiue and to cause hurt to PW-5.  Such exhortation  as alleged in the F.I.R. took place only after injuries had been inflicted by  the Accused Nos. 1 and 2.  No injury was inflicted on the deceased or PW-3  after the alleged exhortation.

The prosecution has also failed to bring any materials on records to  show that there had been any pre-concert or pre-arranged plan so as to hold  that the Appellant had any common intention to commit the alleged offence.   The First Information Report itself suggests that the accused persons became  excited all of a sudden. It has also come on records that the Accused No.3  Bibiben had also sustained injuries.  The learned Sessions Judge himself has  found that prosecution has failed to prove her involvement in the matter.  If  the Appellant exhorted after  infliction of injuries were completed, he by no  means can be held guilty of sharing a common intention with other accused  to commit murder of the deceased or cause injuries to PW-3.  On the other  hand,  if he was the first person to cause injury to the deceased by inflicting  a blow on his head by a stick,  it is wholly unlikely that he would imagine  that the Accused Nos.1 and 2 would go back to their house to bring the  knives and inflict injuries to the deceased and PW-3 and, thus, a case of  forming common intention at that time must be ruled out. It is, therefore, not  a case where a common intention amongst the accused persons can be said  to have been existing either from the beginning or was formed at the spur of  the moment.  Exhortation, furthermore, by itself is not enough to prove  common intention on the part of  an accused.

In State of Orissa vs. Arjun Das Agarwal and Another [AIR 1999 SC  3229], this Court stated :

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       "Regarding accused-respondent Arjuna Das  Agarwal we find from the evidence on record that this  accused neither went inside the house of the deceased nor  took any part in the commission of the murder.  He only  instigated by shouting the other accused persons.  There  is nothing in evidence to show that due to his instigation  more blows were given by the accused persons.   Therefore, no inference can be drawn that this accused- respondent had common intention of causing death of the  deceased or that he actually participated in the criminal  act.  Therefore, High Court rightly acquitted this  accused."

What would form a common intention is now well-settled.  It implies  acting in concert, existence of a pre-arranged plan which is to be proved  either from conduct or from circumstances or from any incriminating facts.   

In Ramashish Yadav and Others vs. State of Bihar [AIR 1999 SC  3830], this Court stated :

"\005It requires a pre-arranged plan and it presupposes  prior concert.  Therefore, there must be prior meeting of  minds.  The prior concert or meeting of minds may be  determined from the conduct of the offenders unfolding  itself during the course of action and the declaration  made by them just before mounting the attack.  It can  also be developed at the spur of the moment but there  must be pre-arrangement or premeditated concert\005.  

[See also Badruddin vs. State of U.P. \026 (1998) 7 SCC 300 and Ramashish  Yadav vs. State of Bihar \026 (1999) 8 SCC 555 referred to in Balram Singh  and Another vs. State of Punjab \026 (2003) 11 SCC 286,] .

As noticed hereinbefore,  even the inquest panchnama did not refer to  the head injury although presence or absence of injuries on all other parts of  the body of the deceased had been noticed.  Furthermore, eye-witnesses are  also interested witnesses.

For the reasons aforementioned, we are of the opinion that the it is a  fit case where the benefit of doubt should be given to the Appellant herein.   The appeal is, therefore, allowed and the impugned judgment is set aside.  If  the Appellant is in custody, he shall be set at liberty forthwith, if not wanted  in connection with any other case.