Shabbir Ahmed and Others vs State of Gujarat

K.S. Jhaveri, J—Both these Criminal Appeals are preferred against judgment and order dated 23.08.2010 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Gandhinagar Camp at Kalol, in Sessions Case No. 32 of 2009. By the said judgment, accused Nos. 1 and 2 both were convicted for offences punishable under Sections 302 and 34 of the Indian Penal Code and ordered to undergo rigorous imprisonment for life and fine of Rs. 20,000/- was imposed and in default, they were ordered to undergo further rigorous imprisonment for two years; for offence punishable under Section 201 of IPC accused Nos. 1 and 2 both were convicted and ordered to undergo rigorous imprisonment of three years and fine of Rs. 5,000/- was imposed and in default, they were ordered to undergo further rigorous imprisonment for four months. The accused persons have been acquitted of the charges for offence punishable under Section 135 of the Bombay Police Act. Being aggrieved by the impugned judgment, the accused persons have preferred Criminal Appeal No. 213 of 2011, while Criminal Appeal No. 882 of 2011 is preferred by the State for enhancement of sentence imposed by the impugned judgment upon the accused persons.

As both these appeals are arising out of the same judgment rendered in connection with the same incident and the evidence is also common in these appeals, the same are taken up for hearing together.

The case of the prosecution is that when the complainant M.A. Gupta, who was serving as a Sub Inspector, Kalol Taluka Police Station, Kalol, one Laxmandas Amarsinh Gadhavi informed him through telephone that on the way of Chhatral S.T. Stand to Isand Village, on the ONGC Road, one black colour bag is lying which is stinking. Thereafter, the complainant, went to the scene of offence along with other police persons and found that one black bag was lying as per the information received. Thereafter, the bag was opened and the pieces of dead body were found from the bag. Thereafter, they came to know from the people of the locality that another bag was lying at Chhatral lake and police personnel went there and found one bag and when it was opened, one head of unknown lady with many pieces of the dead body was found. Said dead body was of woman aged 25 to 30 years. Thereafter, one another bag was found containing the pieces of the dead body. Accordingly, pieces of dead body of a lady were found in three different bags. Therefore, a complaint was lodged before Kalol Taluka Police Station, Kalol. Upon investigation, it was found that dead body was of Pushpaben. It is also the case of the prosecution that Pushpaben was having one daughter. As per the prosecution case, accused No. 1 was involved in mesmerizing or black magic and that he had attracted the deceased as well as her daughter for some uncurable disease. Accused No. 1 was coming to the place of the deceased frequently and was having good relations with them. Accused has also taken Rs. 1.5 Lacs from the deceased Pushpaben. On 26.8.2008 at about 11.30 p.m. when accused No. 1 had gone to the residence of the deceased, there was some altercation between the deceased and accused No. 1. The deceased said that you have taken away our money despite that my daughter is not cured. Therefore, she demanded money back and she has threatened that if the money is not returned, she will file a false case of rape against him. In view of this threat, under the apprehension that he will be given a bad name in the society, accused No. 1 along with accused No. 2 killed both mother and daughter on 28.8.2008 at about 10.50 p.m. in Gulistan Society, and their dead bodies were cut into parts and they were taken in a rickshaw away from the place of incident. With such allegations, the complaint was filed against the accused persons for the offences as aforesaid.

3.1 Investigation was carried out and charge sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused persons. The accused persons pleaded not guilty and claimed to be tried.

3.2 During the trial, the prosecution had examined following witnesses;

3.3 The prosecution has also produced and relied upon following documentary evidence:--

3.4 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid, and also acquitting the accused persons of the charge under Section 135 of the BP Act. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court.

Vide order dated 25.8.2015, this Court has observed that since accused No. 1 has passed away, appeals qua him have abated. Therefore, the appeal of accused No. 1 as well as appeal of State against accused No. 1 have already been abated. Therefore, these appeals are considered only qua accused No. 2.

Ms. Kiran Pandey, learned advocate for the appellant (original accused No. 2) in Criminal Appeal No. 213 of 2011 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. She also submitted that except the evidence of rickshaw driver, there is nothing on record to show that accused No. 2, who is the only surviving accused, is involved in the offence. She submitted that said witness has not stated many facts and even the names of the accused have not been given by him. She submitted that the trial Court has not properly appreciated the evidence on record. She submitted looking to the evidence on record, the appellant cannot be held guilty for the offences alleged against him. She submitted that there is not a single eye witness, who has seen the incident. She submitted that the case of the prosecution is based on suspicion and the complaint was on telephone. Therefore, she submitted that in absence of any eye witness to the incident, the appellant could not have been held guilty of the offence. In view of these submissions, she prayed that this appeal may be allowed by quashing and setting aside the impugned judgment.

On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant-accused No. 2 is just and proper and she has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 882 of 2011 is concerned, which is preferred for enhancement of sentence imposed on accused No. 2, she has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon accused No. 2 inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. She also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment upon accused. She submitted that the prosecution has examined 30 witnesses in support of its case and has also produced several documentary evidences on the record of the case. However, without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective the learned Judge has erred in imposing lesser punishment upon accused No. 2. She submitted that the reason put forth on behalf of the accused is not sufficient and reasonable for imposing the lesser sentence on the accused. Therefore also, as the sentence imposed by the learned Judge is not sufficient and reasonable the same deserves to be enhanced by this Hon''ble Court. She also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused deserve maximum sentence as provided under the aforesaid provision of IPC. It is a fit case wherein the sentence imposed on the accused deserves to be enhanced by this Hon''ble Court. She further submitted that the learned Judge has failed to appreciate that there is no any mitigating circumstance to impose lesser punishment and it is very clear from the facts and circumstances of the case available on the record of the case that there are aggravating circumstances in which Hon''ble Judge ought to have imposed the maximum sentence as provided under the law. She also submitted that the trial Court has committed an error in not believing the version of the complainant and other witnesses and considering the medical evidence, it can be said that the appellant, accused No. 2 is guilty of offence under Section 302, and therefore, he should have been convicted for the same and accordingly, death sentence is required to be imposed upon him. She submitted that the accused has used deadly weapons and the dead bodies were cut into pieces and then thrown away at different places, therefore, this is a fit case for imposing the maximum sentence. She also submitted that this is the rarest of the rare case wherein the accused has mercilessly committed the offence and cut the dead bodies into pieces, therefore, maximum punishment should be imposed upon the accused. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on the accused and, therefore, the sentence imposed is required to be enhanced. Therefore, she submitted that Criminal Appeal No. 882 of 2011 may be allowed and the sentence imposed by the trial Court may be enhanced.

We have heard Ms. Kiran Pandey, learned advocate for the appellant-accused No. 2 and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment and evidence on record. From the evidence on record, it is not in dispute that this is a case under Section 302 of IPC as the death is homicidal. Considering the evidence on record, it is clear that the rickshaw driver, Dilavar Mohammed Kazi, PW-14, Exh. 72, was knowing the accused persons and it is stated by him that in his rickshaw body parts of the deceased were taken and the same were thrown on the road between Chhatral to Isand. The evidence which has been led by the prosecution is mainly based on the evidence on rickshaw driver. He stated that both the accused were known to him right from the childhood. He stated that accused No. 1 was involved in black magic. He stated that accused No. 1 was very popular and many people were visiting his place. He also stated that the deceased and her daughter were also coming to the place of accused No. 1. He also stated that two months before the incident, the deceased and her daughter were taken to a "Dargah" (tomb) by accused No. 1, as she was suffering from eye weakness. He stated that he came to know about the incident on 29.8.2008 at about 11 p.m. when he was going with his friend to Chhatral. When they were returning from Chhatral, near Amrut Hotel many police personnel had gathered. When he inquired from his friend, he stated that a dead body is found. He stated that, therefore, he went to the house of accused No. 1 and said that a dead body is found from the place where the bags were thrown at night by them. He stated that on the previous day, son of accused No. 1 viz. Yusuf came to call him as accused No. 1 wanted to hire his rickshaw. He categorically stated that accused No. 2 was working as a watchman at accused No. 1''s place. He stated that accused No. 1 asked him to sleep on the cot as they were to leave after some time. He stated that in the morning at 4 O'' clock accused No. 2 woke him up and told him that now we have to go. After some time accused No. 1 asked accused No. 2 to bring up the bags from inside the house, since it was stinking the witness asked about it to the accused. The accused also sprayed scent on the bags. Thereafter, they went ahead and after crossing the railway bridge, accused No. 2 was asked by accused No. 1 to throw one bag. Thereafter, another bag was thrown near Amrut Hotel by the accused. He has also stated about disposal of other two bags by the accused persons. This witness has also stated that accused No. 1 asked accused No. 2 to wash the rickshaw and though the fare was Rs. 200/- only, he was paid Rs. 400/- by the accused. Thereafter, on the next day, as he came to know that a dead body was found from the place where the bags were thrown, he informed the police about the incident of earlier night. This witness was cross-examined at length, however, nothing could be brought out from his cross-examination.

The panch witness, viz., Patel Mahendrabhai Bhagvandas, PW 15, Exh. 74, has also supported the case of the prosecution and he has supported the panchnama. Even the medical evidence also supports the case of the prosecution. From the evidence on record, in our view, chain of circumstances is proved by the prosecution and accused No. 2 is equally responsible in the commission of offence as accused No. 1. It is clear that accused No. 2 has helped in removing the dead body parts and prior to committing such offence, there was meeting of mind with accused No. 1. In the impugned judgment, the trial Court has rightly discussed the intention on the part of accused and therefore, contention raised by learned advocate for the appellant regarding non-involvement of the appellant-accused No. 2 is devoid of merits and it cannot be accepted. In that view of the matter, the prosecution has successfully proved its case against the accused. Therefore, this is a fit case to punish accused No. 2 under Section 302, 201 and 34 of IPC. We are in agreement with the view taken by the learned Sessions Judge while convicting the accused. Looking to the evidence on record, we are not increasing the sentence of punishment imposed upon accused No. 2 as it cannot be said that this is the rarest of the rare case in which death penalty should be imposed upon accused No. 2. Therefore, the appeal filed by accused No. 2 against his conviction as well as appeal filed by the State for enhancement of sentence imposed on accused No. 2 both are required to be dismissed.

For the foregoing reasons, the following final order is passed.

So far as accused No. 1 is concerned, since he has passed away, in view of order dated 25.8.2015 of this Court, appeals qua accused No. 1 have abated. So far as accused No. 2 is concerned, both these appeals deserve to be dismissed and they are dismissed. The impugned judgment and order dated 23.08.2010 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Gandhinagar, Camp at Kalol, in Sessions Case No. 32 of 2009 is confirmed. Record and proceedings be sent back to the concerned trial Court forthwith.