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PETITIONER: SHAHBUDDIN ABDUL KHAHLIK SHAIKH

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT05/04/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J)

CITATION:  1995 SCC  Supl.  (2) 441 JT 1995 (3)   456  1995 SCALE  (2)647

ACT:

HEADNOTE:

JUDGMENT: M.K. MUKHERJEE, J.: 1.   On  February  1,  1995 we heard and  disposed  of  this appeal with the following order:               "For  the  reasons  to be  stated  later,  the               judgment  of the Additional Designated  Judge,               Ahmedabad  dated  4th March, 1994 in  TCC  No.                             166/93   cannot  be  sustained.   This   appea l               succeeds  and is allowed.  THe conviction  and               sentences  unposed upon the appellant are  set               aside  and he is directed to be released  from               custody forthwith if not required in any other               case". We now state the reasons for the order. 2.   The appellant was placed on trial before the Additional Designated  Judge, Court No.2, Ahmedabad to  answer  charges under  Section 302 read with Section 34 of the Indian  Penal Code  and  Section  3  of  the  Terrorists  and   Disruptive Activities  (Prevention) Act, 1987 (’Act’ for  short)  which centered around the death of a person belonging to the Hindu Community on December 23, 1992.  On conclusion of the  trial the  learned  Judge  recorded an  order  of  conviction  and sentence  against  the  appellant in  respect  of  both  the charges.  Hence this appeal under Section 19 of the Act. 3.Briefly  stated  the case of the prosecution  is  that  on December 24, 1992 Rajubhai Govindbhai (P.W. 1) a resident of Chatursing’s Chawl, near Char Toda Kabrastan of Gomtipur  in the  city  of  Ahmedabad lodged a  complaint  with  Gomtipur Police Station to the effect that on December 23, 1992 at or about  11P.M.  while he was sitting in front  of  his  house along with his friends Haribhai Mohanbhai Solanki and Sanjay Kumar Kishorebhai he saw Manoharbhai Kaluram Koli, who was a resident of the same Chawl and working as a labourer at  the Railway  Station Platform Canteen, coming towards them  from the  side  of Patrawali Mosque.  When he got as far  as  the

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road  in front of the ESI Dispensary No. D-23  four  persons named  Kallar,  Arif Hanif, Shahbuddin (the  appellant)  and Ishrar  Kaliyo waylaid him.  While the appellant and  Ishrar Kaliyo  caught  hold of him the other two stabbed  him  with guptis.  Resultingly, Manoharbhai received serious  injuries and  started  bleeding  profusely.  When  Rajubhai  and  his friends  started shouting for help the miscreants fled  away towards  Patrawali’s Chawl.  Thy then rushed the injured  to the  hospital  where the doctor declared him dead.   In  his complaint  Rajubhai alleged that the murder was a sequel  to the demo- 458 lition  of  the  structure of Babri  Mosque  at  Ayodhya  on December 6, 1992 and the communal riot that broke out in the city of Ahmedabad in its wake.  On that complaint a case was registered and the appellant was arrested.  On completion of investigation  police  submitted  charge-sheet  against  the appellant,  and  the  other  three  accused  named  in   the complaint showing them as absconding.  The appellant pleaded not guilty to the charges levelled against him and contended that he was falsely implicated. 4.That  Manoharbhai  met  with his homicidal  death  on  the fateful  night  stands conclusively proved  by  overwhelming evidence  on  record, In fact this part of  the  prosecution case was not challenged by the defence.  The  uncontroverted evidence  of  Head  Constable Kantilal,  (P,W,5),  who  held inquest, with die contemporaneous panchnama prepared by  him (Ex.  11) and that of Dr. P.R. Patel (P.W.3), who held post- mortem  examination  upon the deceased  when  read  together indicate  that the deceased sustained and died of  two  stab injuries,  one below the left nipple and other on the  upper lateral part of the right shoulder blade. 5.The   next  and  the  crucial  question  that  falls   for determination  is whether the prosecution has  succeeded  in proving beyond all reasonable doubts, that the appellant was one of the persons who caused the death of Manoharbhai.   To prove  this part of its case, prosecution solely relied  and the  trial  Court based its conviction on  the  evidence  of Jaydeep  Kaluram  (P.W.2), the brother of the  deceased,  as P.W.1  turned hostile.  Before we refer to the, evidence  of P.W.2 we may mention that in the charges framed against  the appellant it was specifically stated that he and Ishrar  had caught  hold of the deceased and the other two  accused  had taken  out guptis and given blows on different parts of  his body.   In his sworn testimony P.W.2  however  categorically stated that the appellant and Arif attacked him with  guptis while the other two miscreants had caught him.  Then  again, P.W.2 stated in his examination-in-chief that when he was on the  first  floor of the Chatursing’s Chawl,  where  he  was residing,   he  saw  his  brother  being  attacked  by   the miscreants,   in  front  of  B-23  Dispensary.   In   cross- examination,  however,  he  not  only  made  an   altogether different statement when he said that he was standing  alone in  the  flour mill of Chelaji, which was in the  corner  of Chatursing’s  Chawl, when the incident took place, but  also asserted that it was false to state that at the time of  the incident  he was on the upper storey of the Chawl.   Against the above assertion when P.W.2’s attention was drawn to that part  of his statement made during investigation wherein  it was  recorded 1 was on the upper storey of the landlord  and when  my brother came after escape, I came down", he  denied to  have  said  so.   P.S.I.  Nagesh  Kumar  (P  W.6),   who investigated into the case, however admitted that P.W.2  did make  such statement before him.  From P.W.2’s  evidence  we further find that when he was being cross examined regarding

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the  source  of  light  by  which  he  could  recognise  the miscreants he stated that the lights in and around the place were  on  but  then  from P.W.6 it  was  elicited  in  cross examination that the Gomtipur area was under curfew in  that night.  Indeed, in answer to a question put by the Court  he admitted  "The lights on ways/roads were off on the date  of incident". 459 6.On a careful perusal of the impugned judgment in the light of the evidence of P.W.2 as detailed and discussed above  we are  constrained  to say that the trial Judge  recorded  its findings  on an erroneous and perverse mode of  appreciation of  evidence and a patently wrong process of reasoning.   In dealing  with the glaring and material contradiction in  the evidence of P.W.2 as regards the place wherefrom he saw  the incident, the learned Judge observed:               "...I  am of the opinion that be it from  near               the flour mill or from the first floor of  the               building he did see the incident as deposed by               him and that is the crucial point ".               (emphasis supplied) 7.   In  making the above observation the teamed Judge  has, in  our view, put the cart before the horse.  In  fact,  the crucial  point  before the Court was whether  the  claim  of P.W.2   that   he  saw  the  incident  could   be   accepted notwithstanding the contradiction brought in his evidence in this regard.  In this context the teamed Judge was  required to first consider whether the contradiction was apparent  or real.   inconsequential   or   material,   explainable    or irreconcilable  and acceptance of the claim of  the  witness was to depend on the answer thereon.  Instead of approaching the matter from that angle and perspective the learned Judge accepted  P.W.2’s  claim  as  gospel  truth   contemptuously ignoring the material contradiction altogether. 8.   We  next find that when the learned  Judge’s  attention was  drawn  to the inconsistency in the  evidence  of  P.W.2 regarding  the  actual role played by the appellant  in  the murder,  the  Judge  observed  that  once  the   prosecution succeeded in proving that the appellant was one of the  four miscreants who committed the murder pursuant to their common intention,  the  question as to whether he had  only  caught hold  of  the  deceased  or had  actually  stabbed  him  was redundant.   As a proposition of law the  above  observation made  by the trial Judge may be unexceptionable but then  it cannot  be gain said that the inconsistency pointed  out  by the appellant warranted a close scrutiny of the evidence  of P.W.2, as he happened to be the brother of the deceased, and the result of the trial solely rested upon his testimony. 9.   Lastly,  in rejecting the contention of  the  appellant that  there being no light in and around the area where  the incident  took place P.W.2 could not have seen it much  less identified  the miscreants, the learned Judge observed  that even though the Investigating Officer said that the electric poles  were  not working at the time of  the  incident,  the panch witness had stated in an answer to Court’s query  that the  buildings  surrounding  the  area  were  having  lights whereby  the roads were illuminated and the persons  on  the road  could be identified.  The learned Judge then  recorded the following finding:               "So, even if it may be that the street  lights               may  not be working, yet there was  sufficient               light  thrown from the nearby  buildings  with               the  aid of which the persons walking  on  the               road can be easily seen, and thus also renders               a  ring of truth to the  straight  forwardness

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             and  the  credibility of the  witness  (P.W.2)               when  he  says  that  he  had  witnessed   the               incident". 10.On  going through the record placed before us we  however find that the only 460 panch  witness  who was examined during the  trial  was  one Ishwar Singh (P.W.4) and his evidence does not disclose  the statement  attributed to him by the trial Judge.  We  hasten to add that even if he had made any such statement we  would not  have placed any reliance thereupon as, being a  witness only  to  the  seizure of blood and other  articles  on  the following  morning,  that is on 24.12.1992  and not  of  the incident  itself   he  was not competent to  testify  as  to whether  the  place  of  incident  was  illuminated  on  the previous  night notwithstanding the curfew and the  admitted fact that the street lights were not on in that night. 11.For the foregoing discussion we unhesitatingly hold  that the reasons given by the trial Court for accepting the  evi- dence  of P.W.2 are wholly unsustainable.  We  further  hold that  having  regard  to the  facts  that  P.W.2  materially contradicted  himself as to the place wherefrom he  saw  the incident,  that  the overt act allegedly  committed  by  the appellant did not fit in with the  case  of the  prosecution as  reflected in the charges and that there was no light  in and around the place of incident, P.W.2’s claim that he  had seen  the incident and identified the miscreants  is  wholly unacceptable as creditworthy.  The appeal must therefore  be allowed and we order accordingly. 462