1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MUZAFFAR HUSAIN @ LALO ISMAIL HATHIWALA....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ========================================================== Appearance:
MR VIJAY PATEL FOR HL PATEL ADVOCATES, ADVOCATE for the Appellant(s) No. 1 MR KL PANDYA, ADDL. PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 22/06/2015 CAV JUDGMENT Page 1 of 33 R/CR.A/450/2006 CAV JUDGMENT
1. Heard learned advocate Mr. Vijay Patel for HL Patel Advocates for the appellant and learned APP Mr. K. L. Pandya for the State. Perused the record in the form of paper book and decisions cited at bar.
2. Appellant is one of the accused before the learned 6th FTC at Surat in Sessions Case No. 74 of 1992 with two other accused. Amongst all three accused in such case registered against them under Section 302, 504 and 34 of the Indian Penal Code as well as under Section 25(1)(A) of the Arms Act, the trial Court has by impugned judgment dated 07.01.2006 acquitted accused Nos. 2 and 3, but convicted accused No.1 under Section 304 - I of the Indian Penal Code and awarded sentence of rigorous imprisonment for a period of 10 years with fine of Rs.5000/- with a condition that in default of payment of fine, appellant - accused has to undergo one more year of rigorous imprisonment. However, appellant has been acquitted from other charges under Section 34 of the Indian Penal Code as well as Section 25(1)(A) of the Arms Act, though death of the victim was because of gunshot by the appellant - accused.
3. The story of the incident and list of events are well described in the impugned judgment and, therefore I do not want to reproduce the same herein.
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4. However, to understand the facts and to determine the issues, at least minimum facts need to be recollected herein, which are as under:
4.1 The record reveals that there was enmity between two groups because appellant No.1 has helped a 3rd party namely Nitin Ghanchi to abduct the wife of one Iqubal Patel. Because of such dispute, appellant has to change his residence from Masarat Apt. in Chamadia Chal to Al Madina Apt. in other chal, before couple of years. On the date of incident i.e. 22.01.1992, when appellant had some work at his old house at Masarat Apt., one Rafiq Sadiq who was residing with above referred Iqubal Patel and appellant had a quarrel amongst them and, therefore, people of Chamadia Chal have gathered, amongst them, majority were women and children and they marched to the house of appellant at Al Madina Apts. and shouted at appellant, who was also known as Lalo. The prosecution case on such background is to the effect that at such point of time, accused Nos. 2 and 3 were instigating and abetting the accused No.1 to fire against the crowd and thereby appellant who was holding a license revolver, fired two rounds, which resulted into serious injuries to one of the persons amongst the crowd, namely Abdul Riyaz, son of the Abdul Majid. There was diverse version so far as stone throwing is concerned at such time, wherein it is the say of the appellant/accused that they have fired in self-defence because of heavy stone throwing on their house whereas Page 3 of 33 R/CR.A/450/2006 CAV JUDGMENT complainant and prosecution state that stone throwing has taken place only after appellant - accused fired against crowd. Therefore, the defence of the appellant is to the effect that, he fired in self defense. Thus so far as cause and nature of quarrel, place of incident, existence of crowd, firing by appellant No.1 and death of Mohmad Riyaz, son of Abdul Riyaz are not disputed fact. Therefore, discussion of story and evidence on such issues are not much relevant at this stage and, hence, though deposition of all the witnesses and other evidence are perused and scrutinized for limited purpose i.e. consideration of self defence, details of all such evidence are also not reproduced herein, so as to avoid repetition of same details and facts. However, for determination of the appeal, all the depositions and documents are scrutinized and gist of the facts and evidence regarding self defence is examined, so as to ascertain that whether appellant is entitled to any relief as claimed or not.
4.2 So far as self defence is concerned, it is admitted fact that there is enmity between two groups. It is also admitted fact that because of such enmity, appellant had to shift his residence. It is also admitted position that when appellant returned from Maskat Apt. to Al Madina Apt., it was certainly the other group which had gathered the people from the street and marched towards their house of the appellant. Therefore, the cause of quarrel was certainly started by the crowd with the complainant and not the Page 4 of 33 R/CR.A/450/2006 CAV JUDGMENT appellant.
5. The relevant part of evidence to ascertain such fact is referred herein after:
5.1 PW 1 at exhibit 26 is Peer Mohmad. He stated on oath before the Court that when he was at home on the date of incident, he heard the voice of crowd and when he came out of the house he found that there was quarrel between Iqubal Patel and present appellant and, thereafter, he followed crowd and reached upto Al Madina Apt., where appellant was residing. Though he had stated that at Al Madina Apt. he saw appellant with revolver with Jhalar Hussain, Alimiya Ismailmiay, Noormiya, Ismailmiya; they were abusing the crowd. It is his case that the other accused instigated the appellant to open a fire against the crowd and, thereupon, appellant had opened fire wherein, Mohmad Riyaz got gunshot injury on right side and he succumbed to injury on the way to hospital. It is admitted by him that crowd had gathered at Al Madina Apt. because there was a quarrel between appellant and Iqubal Patel, when appellant visited Masarat Apt. For such incident, witness had lodged a complaint and, therefore, he proved it. However, in his cross - examination, he admitted several things, which certainly confirms several contradictions viz.
1. Police reached the place of incident before he went to police Page 5 of 33 R/CR.A/450/2006 CAV JUDGMENT station.
2. Complaint was registered before the injured reached Maskati Hospital.
3. At the place of incident he reached with the police officer after lodging a complaint and police had gone to the house of the appellant on the second floor.
4. Though initially he had not gone to Al Madina Apt., when he went there, he found signs of brick-throwing at second floor with broken parts of bricks.
5. He also referred a damaged auto rickshaw confirming that it was not having much damage except broken glass. However, it certainly confirmed that unlimited stones were certainly thrown towards Al Madina Apt. which resulted into damage to rickshaw as well as door and windows of the appellant's house.
6. He also admits that crowd, which had gathered at the place of incident belonged to his street, i.e. Iqubal Patel.
7. He identify some of the persons by name stating that 1000 to 2000 people were residing in the street.
8. He denies any relation with Iqubal Patel and even the status of Iqubal Patel as a corporator of local corporation.
9. He also states that he does not know Iqubal Patel or that what business he is doing, but admits that one Rafiq is Page 6 of 33 R/CR.A/450/2006 CAV JUDGMENT residing in the house of Iqubal Patel and he had a quarrel with appellant and, therefore, he had a reason to go to the street and apartment of the appellant. He also confirms that he knows the victim since victim is a boy of his street.
10. However, after couple of minutes, he admits that Iqubal Patel is a corporator but tried to re-ascertain that he has no relation whatsoever with Iqubal Patel and he has no reason to go wherever Iqubal Patel has a quarrel.
11. It is his admission that there was a dispute amongst them because appellant has allowed the male of other community to abduct female of their community.
12. He also admits that walking distance between two apartments is almost 10 minutes but did not agree that people of his street went there with weapon.
13. He abruptly states that crowd has gone to Al Madina Apartment to support Rafiq, and not Iqubal Patel, whose wife was abducted.
14. In a pointed question regarding cause of dispute, he confirms that he does not know the reason.
15. However, he has to admit that appellant was telling the crowd to go away from the place but crowd had not dispersed, but he states that he does not know that why appellant was asking to go and why crowd was not dispersing.
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16. He has to admit that appellant - Lalo has filed a complaint against him as well as against witnesses whose names are disclosed by him in the present incident for attaching his house.
17. He further admits that after firing, crowd had dispersed from place. This admission negativates the prosecution story that crowd has started throwing the stone because of firing when presence of stones were found at the place of the appellant.
18. The defense was confirm the contradictions in the version of the witness with the complaint given by him regarding arrival of police that whether it was immediately after the fire and thereby before lodging complaint by him or after lodging complaint by him.
19. It is his say that if police has written in the complaint that after firing, police reached at the place of incident, he does not know such fact. This statement makes it clear that either he has not disclosed the correct fact to the police at the time of lodging of FIR or FIR is lodged as pre-plan, as it is submitted by the appellant.
20. There is one another glaring non - disclosure in the complaint regarding knowledge of death of the victim Riyaz, when complainant-witness says that he came to know about the death of Riyaz only from one person named Baba while he Page 8 of 33 R/CR.A/450/2006 CAV JUDGMENT reached to the police station. This statement on oath before the Court makes it clear that complainant was not aware about result of firing while lodging of a complaint or at least he does not have personal knowledge. He did not disclose the name of Baba to the police and even in the complaint and said Baba is not examined as prosecution witness.
21. It is also admitted position that he had not taken Baba to the police station.
22. Though he does not want to admit the activity by the crowd he has to admit that crowd could not enter into the residence of the Al Madina Apt., since gate of the flat was closed.
23. He has also admitted that he is one of the accused with other accused in cross - complaint for the same incident given by present appellant for attaching the house of the appellant and for throwing stone.
24. During cross - examination now he admits that in his complaint he has admitted that police has reached the place of incident and, therefore, crowd has dispersed abruptly.
25. He also admits that information regarding death of Riyaz was received from him by his friend but such fact was disclosed first time before the Court and to nobody before that.
26. Though he tried to deny the criminal record of Hanif @ Page 9 of 33 R/CR.A/450/2006 CAV JUDGMENT Hannu, he admits that Hannu was in jail for one murder case.
27. He also admits that he does not have personal knowledge of abduction of wife of Iqubal Patel.
28. He has to admit that when he went to place of incident with police, stone and bricks were there in the area of 35 x 17 sq. ft.
29. He has to admit that glass of doors and windows were broken and pieces of bricks were there on the floor with signs of bricks on wall. However, he did not admit that glass of doors and windows or rickshaw were broken but admits that head light of rickshaw was broken.
30. In cross - examination witness states that he does not know Iqubal Patel and denied several facts, whereas the entire cross - examination certainly reveals that witness has knowledge about Iqubal Patel and they all were involved in several activities including illegal activities and one Asif Ahmedabadi died in one incident.
31. Though he denies his nexus, he has to admit that crowd has gathered at Al Madina only after he came to know that appellant has gone to Al Madina to Masrat Apt. He admits that crowd has common intention to attack the appellant because witness has categorically confirmed that crowd has gone to Al Madina Apt. because appellant has gone there.
32. So far as cause of quarrel is concerned, witness has Page 10 of 33 R/CR.A/450/2006 CAV JUDGMENT tried to hide some facts and it goes to show that witness has no intention to disclose the true fact before the Court of law and tried to depose the facts which may go against appellant.
33. Surprisingly, though witness being a complainant, has disclosed in the complaint that because of previous rivalry appellant has left Masrat Apt. and residing at Al Madina Apt.; in cross - examination he denies such fact. Therefore either FIR was not lodged by him or someone has lodged the complaint in his name and he has only signed it or he is not telling the truth before the Court.
34. However, when witness deposed specifically against the appellant, it certainly goes to show that he has a reason to depose against the appellant because appellant has filed complaint against him.
35. When witness says that though crowd was calm, appellant has fired against them and in next breath he says that it is not his say that firing was opened because crowd was angry and throwing stone and, thereafter, appellant becomes calm. Such adverse statement certainly creates doubt upon the credibility of the witness.
36. Witness has tried to avoid discussing his criminal activity and history. However, he has to admit that one Asif Ahmedabadi had collected deadly weapon to disturb the Ganpati Visarjan, but denied that they wanted to kill the Page 11 of 33 R/CR.A/450/2006 CAV JUDGMENT appellant, but because of the firing of the appellant Asif, they have to run away from the place. He also states that police has found deadly weapon from Navabi Masjid, Khanderaopura because of information and application given by the appellant amongst which 12 bore revolver and several other deadly weapons were found from Navabi Masjid.
37. So far as presence of bricks in the house of appellant is concerned, at the time of panchnama, which was drawn immediately after the incident, witness has the audacity to say that he did not know anything but he has to admit that he has shown place of incident and says that pieces of bricks were gathered there because they were thrown by the crowd. 5.2 Considering the gist of lengthy deposition of complainant as above, it is certain that though there was a firing by the appellant, the version of the complainant is not trustworthy and reliable. If we peruse the complaint at exhibit 33, there is material contradiction in the deposition and the signed complaint by such witness viz.
1. In the complaint witness admits that several people have thrown stones on the house of the appellant, whereas he denies such fact in the cross- examination.
2. In the FIR he disclosed the arrival of police immediately after incident and dispersal of crowd only because of police. Whereas in complaint he denies such fact stating that he Page 12 of 33 R/CR.A/450/2006 CAV JUDGMENT went to police station and then returned with police at the place of incident.
3. He has narrated in the complaint that people from surroundings had gathered when he came to know about presence of appellant in Masrat Apt. and when he came to know that appellant has went to Al Madina Apt., the crowd went there.
5.3 Therefore, though it is settled legal position that FIR may not have all disclosure of minute details, there should not be much discrepancies between FIR and deposition and thereby if there are material contradictions, which are narrated herein above, it goes to show that complainant is stating a particular thing against appellant, but does not disclose certain things which are undisputed fact, there is reason to doubt the authenticity of such statement by the witness.
5.4 P.W. No.2 Abdul Sattar Gulam Kadar Shaikh at exhibit 37, is a panch witness of the place of incident at Al Madina Apt. and he supports the prosecution case so far as position of place of incident is concerned, wherein practically he admits that there was mark of stone and bricks on the doors of apartments. He also admits that in the gallery of Al Madina Apt., pieces of broken glass were present and there were red signs of bricks on wall. However, details of the Page 13 of 33 R/CR.A/450/2006 CAV JUDGMENT topography of the place of incident is not material at present, except the presence of pieces of bricks and stones, both on the doors of the appellant's flat and on road. He admits that he knows Iqubal Patel since election and that police has called him by searching him, which goes to show that he was selected as Panch witness and ultimately he told the truth before the Court which confirms that there was attack on the appellant at the place of incident. The other panch witness of such panchnama was no more on the date of his deposition and, therefore, panchnama at exhibit 38 is proved by this witness and it confirms the attack on the house of the appellant.
5.5 P.W. No.3 Saiyed Amin Hafizuddin Buhani at exhibit 39 is though not eyewitness of the incident, his deposition makes the picture clear. It is his say on oath before the Court as a prosecution witness that he does not know the accused and he could not identify the accused in the Court room and that when he reached the place of incident on hearing loud voice of the crowd, he saw Riyaz liying unconscious on road and he also saw the crowd. He took Riyaz to the hospital in auto. In cross - examination he admits that there is a case under Section 307 of the Indian Penal Code both against him and victim Riyaz, but did not admit that there is a case under Section 302 of the Indian Penal Code against them. 5.6 So far as death of the victim is concerned, this witness, who Page 14 of 33 R/CR.A/450/2006 CAV JUDGMENT has taken him to the hospital states that confirmation of death of the victim by the doctor was only after his examination, which makes it clear that death of the victim is known to everyone only after doctor examined him and not prior to that and, therefore, any allegation regarding murder needs to be scrutinized thoroughly. Like PW No.1, this witness has also tried to restrict himself from disclosing certain facts.
5.7 PW No.4 at exhibit 44 is Salimkhan Bannakhan Pathan being one of the panch of inquest panchnama and, therefore, there is no dispute regarding death of the victim. His deposition is not much material and he supports the contents of panchnama, which is already exhibited at exhibit 46 by the trial Court. 5.8 PW No.6 at exhibit 49 is Abdul Kadir Mohmad Hussain was driving rickshaw, As per previous witness, victim was taken to hospital in his rickshaw. However, he turned hostile and states that he does not know anything about incident, though he was cross - examined at length, nothing material can be proved. 5.9 PW No.7 at exhibit 50 Mohmad Safi Mohmad Ishaq Rangrej, panch witness of the recovery of revolver and, therefore, except disclosure of incident as a hearsay, his deposition is not much material. However, during cross - examination certain facts are Page 15 of 33 R/CR.A/450/2006 CAV JUDGMENT brought on record by the defense, because he is one of the accused in the cross complaint filed by the present appellant. In his cross - examination he has to admit that all the accused in complaint by the appellant were present at the place of incident. However, surprisingly in such cross case No. 267 of 1997 by judgment and order dated 07.01.2006, the trial Court has acquitted all of them by extending benefit of doubt. Witness further admits that against his brother - in - law Hannubhai, who was with him, there is one common case of murder and an order of externment. The witness has admitted certain factual details which includes that appellant was asking the crowd to go away and disperse from the place and that even thereafter people were not dispersing from the place and police reached the place immediately after firing by the appellant. He also admits that though he has not thrown stone, people from crowd have thrown stones for two to five minutes. Whereas PW No.1 - complainant did not agree about stone throwing for such a time. He further admits that atmosphere at the place of incident is certainly disturbed but he did not agree that it was not possible for the family members of the appellant to come out of the house because of the crowd. He admits that he is facing several charges regarding breach of curfew and communal riots. 5.10 PW No.8 at exhibit 51 is Mohmad Rafiq Sadiqmiya, who is working with Iqubal, admits that when appellant has left for Al Page 16 of 33 R/CR.A/450/2006 CAV JUDGMENT Madina Apt. from Masarat Apt. because appellant has used unparliamentary language against Iqubal, people of street have gathered and marched to Al Madina Apt. If at all appellant has spoken such words to Iqubal when he visited Masrat Apt., there is no reason for the crowd to attack the house of the appellant with stones. However, the story revealed on record certainly goes to show that cause of quarrel is either on behalf of Iqubal or Rafiq when appellant has gone to his own house at Masarat Apt. and that to because appellant has help someone to abduct wife before couple of years.
5.11 Whatever the grievance may be, the crowd which gathered at the place of Al Madina Apt. has no reason to create disturbance by throwing stones so as to damage door and glass of the appellant's house as well as rickshaw parked nearby. Though firing is not permitted in such a situation also, it can certainly be said that the disturbance was started is by the crowd with Iqubal and complainat.
5.12 PW No.9 at exhibit 54 is Dr. Jagdishkumar Daniyarbhai, who has examined the victim and confirmed that he has got a fire arm injury on his right shoulder which goes downward from the chest resulting into death of the victim because of hemorrhage of vital organs like lungs and heart. He proved the post mortem note issued by him at exhibit 55 as well as death certificate at exhibit Page 17 of 33 R/CR.A/450/2006 CAV JUDGMENT
56. 5.13 PW No.10 at exhibit 57 is police constable Anil Narendraprasad Bhatt, who confirms that on personal intimation by corporator Iqubal Patel, they had been to place of incident and he recovered the revolver from the appellant and managed for security of the place. Surprisingly this witness seems to be chance witness and probably he has not reached the place of incident because in cross - examination he denies several factual details which are otherwise admitted by other witnesses. He also does not confirm about the activities by S. P. Rao and PSI Chaudhary that whether it is before his reaching the place or thereafter. He does not know that when complaint was lodged. He denies a suggestion that he entered an entry in the police record under the influence of corporator Iqubal Patel. In short he is not a reliable witness though he is a police constable. In any case he certainly negativates that say of complainant that Iqubal Patel has not played any role in the incident, when in fact Iqubal Patel was first informant but did not wants to be complainant and hence complaint was probably registered in the name of complainant Peer Mohmad and, therefore, complaint could not sustained the cross examination where he proves several contradictions.
5.14 PW No.11 at exhibit 59 is Arvindbhai Virjibhai Patel, who has Page 18 of 33 R/CR.A/450/2006 CAV JUDGMENT proved six photos of the place of incident taken by him, he confirms that photos were taken in day light and as instructed by Investigating Officer. He produced all negatives and confirmed that he took 16 snaps but only 6 photos were produced since others are repeated photos of the same scene.
5.15 At exhibit 72 there is a rough sketch of place of the incident. However, at present it does not have much relevance so far as decision in this appeal is concerned.
5.16 At exhibit 74 there is deposition of PW No. 12 namely Hiralal Haribhai who has registered FIR. It is his say that he received intimation from the Maskati hospital and he had drawn panchnama of the dead body. He confirms that both the complaints were practically recorded in the chamber of PSI Chaudhary and, therefore, except registering such FIR, nothing is proved by this witness.
5.17 PW No.13 at Exhibit 81, Investigation Officer and PSI namely Kirtikumar Manchhabhai Chaudhary, he identified the complaint which is at exhibit 33 and narrated the details of investigation and produced several documents viz. Panchnama and communication with FSL as well as report by FSL. He also confirms the contradiction of some witnesses from their relevant statements. He also confirms that appellant - accused has a license to hold Page 19 of 33 R/CR.A/450/2006 CAV JUDGMENT revolver, which was used in the incident. He denies the suggestion that appellant was able to get the license because of the plan of murder by Asif Ahmedabadi and Iqubal Patel. It is admitted by him that panchnama of the revolver was not done at the place of incident but it is prepared in the police station and explained that considering the situation on hand he deemed it fit to draw panchnama at the police station instead of place of incident. He denies the several suggestion to prove that he has helped the complainant by registering their complaint earlier than the appellant. He did not confirm about the criminal history of other witnesses stating that he can confirm it only after examining the record. He admits that there is only one stair to reach the Al Madina Apt. He has also admitted that in the complaint there is a reference that wife of Iqubal Patel ran away with one Nitin Ghanchi.
6. As against above evidence before the prosecution, the appellant - accused has examined three witnesses at exhibit 96, 98 and 101.
6.1 Defense witness No.1 Sakharam Ghodubhai Jadav at exhibit 96 has deposed that on the date of incident i.e. 22.01.1992, crowd of 150 to 200 people were came from western side with stone, stick etc. and they were throwing the stone upon the accused who was Page 20 of 33 R/CR.A/450/2006 CAV JUDGMENT residing at 2nd floor of Al Madina Apt.. It is his say that at the time of incident, he was at the window of his house. His house is at opposite side of house of the appellant - accused and that stone throwing continued for 10 minutes. It is his say that the crowd was calling the appellant - accused down stairs whereas appellant - accused was asking them to go away from the place but crowd did not disperse and because of such disturbance and fear, he has closed his windows. So far as firing is concerned, he did not know about voice of firing and that he has heard the voice but could not confirmed that it was the voice of firing or not. He did not notice the presence of police and confirmed that he opened the window only after two hours when everything was calmed. In cross - examination except a suggestion that he has not produced the proof where he is residing in the same area, nothing substantial has been brought on record to prove that either witness is not telling the truth or that what he is telling is not a real story or that witness is not knowing anything about the incident. It is pertinent to note that witness is aged 70 years when he deposed before the Court in the year 2005 and there is nothing in his deposition to show that why he should not be believed.
6.3 Defense witness No.2 at exhibit 98 is Mahadev Shankarbhai Kalgude. It is his say that on the date of incident i.e. 22.01.1992 when he has gone to purchase sugar in nearby shop from his house Page 21 of 33 R/CR.A/450/2006 CAV JUDGMENT between 2:30 and 2:45 p.m., from western side a crowd had come with sword, gupti, pieces of bricks etc. and they attacked flat of appellant - accused. He confirms that he knows the appellant since his flat at opposite side of witness and that appellant is residing at Al Madina Apt. It is his case that crowd was throwing stones on the doors and windows of the appellant's house and such disturbance continued for 20 to 25 minutes. He also deposed that crowd was asking the appellant to come down whereas appellant was asking them to go away. He also confirmed that crowd has broken a rickshaw and did not disperse. He further states that crowd was trying to climb stairs to go to the upper stair and, therefore, appellant has opened a fire but even thereafter when crowd had not dispersed, appellant has opened second fire but he could not confirm that who was injured in such firing. He further confirmed that police has reached the place and that seeing the crowd he had ran away to nearby street and watched scenario from there. He also confirmed that defense witness No.1 is also residing in his street. He was substantially cross - examined by the public prosecutor. Several factual details were revealed but the same did not disturb or negativate the examination - in - chief. On the contrary it confirms the verasity of the witness and he has reconfirmed each fact even in cross - examination. Only crucial question in cross - examination is to the effect that witness did not go to the police station to disclose such truth. It is admitted position that Investigating Officer has not recorded his statement Page 22 of 33 R/CR.A/450/2006 CAV JUDGMENT and he did not think it proper to go to the police station. However, that situation alone would not rebut by proper and cogent evidence by the defence witness.
6.4 Defense witness No.3 at exhibit 101 is accused No.1 himself namely Mujafarhussain @ Lalo Ismail Hathiwala. Though he is appellant and convicted accused, it can be said that his deposition is not material, it would be necessary to verify the same because he has shown daring to offer him to be cross - examined by the other- side, more particularly when there is cross complaint. It is his say that on the date of incident i.e. on 22.01.1992 he and his son had been to Masrat Apt. from their residence of Al Madina Apt. to collect a doctor's file relating to his son. He further deposed that one of his brothers is residing in Masrat Apt. since it was 11:00 a.m. to 12:00 noon, his brother has asked them to stay for lunch. Therefore, they stayed at Masrat Apt. for lunch and went to find out a file. It is his say that in his house day light comed only if he open a back side window and, therefore, he opened it. However on back side there is a flat of Iqubal Patel and when he saw him, he started to abuse him that why he came there and thereupon he stated that he had come there to collect one file and will go back. But even thereafter they were asking them why you have came here. Because of such conversation, brother of the appellant has said them to go to Al Madina Apt., and not to the hospital and, therefore, appellant has stated that he closed his flat and went Page 23 of 33 R/CR.A/450/2006 CAV JUDGMENT back to the Al Madina Apt. without file, but thereafter after 2 to 3 hrs. when he was at his residence at Al Madina Apt. Iqubal Patel came with 150 to 200 people and called upon the appellant to come down and abused him. When he did not go down from balcony, the crowd has threw bricks and stone towards him. Thereupon appellant has used a house hold utensils - tapeli to safeguard his head and asked the crowd to go away but crowd did not go away and, thereafter, he hid himself aside. The crowd continued to throw stones and bricks. He also saw that at that time crowd has damaged rickshaw of his brother. When crowd has tried to reached his flat; because of fear, he initially fired in the air but when crowd did not disperse even after such first fire, it is his categorical statement on oath before the Court that thereupon he directly fired towards crowd and thereafter crowd has dispersed to some extent but continued throwing stones by hiding behind other buildings. Thereupon police has reached and caught 4 -5 people and recovered revolver from him. It is his case that his son was suffering from the disease in which body could not create blood and his treatment was continued with Dr. Bipin Desai and, therefore, he needs a file which was lying in the old house. He also confirmed that they have filed cross complaint being C. R. No. 56 of 2006 wherein charge sheet is filed and he has deposed in cross case as a witness. He has been cross - examined by Investigating Officer at length. However, except for confirmation that appellant - accused was tried for two murder cases, nothing substantial can be Page 24 of 33 R/CR.A/450/2006 CAV JUDGMENT proved by prosecution to prove their case or to disbelieve the defense of self defence. A suggestion that, being court bird appellant has filed a cross complaint could not change the situation, which is otherwise admitted by the prosecution witnesses also that crowd has reached the place of residence when there was a quarrel between appellant and Iqubal at Masrat Apt.. Therefore, initiation of incident rests upon the complainant and his group and, therefore, though appellant is not entitled to commit offence of even culpable homicide by using fire arms even by licensed arms, it is clear and obvious that there is substance in the defense story that actually fire arm was used in defence and not to kill someone intentionally.
7. In the background of such situation emerging from the record, if we peruse the impugned judgment, it seems that the trial Court did not consider the plea of self defence because nobody from the crowd has reached upto the flat of the appellant - accused and, therefore, it was held that appellant - accused has no reason to use fire arm, which result into the death of a human being. However, trial Court has instead of convicting the appellant under Section 302 of the Indian Penal Code convicted him under Section 304 - I of the Indian Penal Code only observing that the intension of firing was not to kill Riyaz - victim and, therefore, there is no mens ria or intention or pre - planned act to kill someone using fire Page 25 of 33 R/CR.A/450/2006 CAV JUDGMENT arm.
8. It cannot be ignored that neither prosecution nor complainant has challenged the conviction under Section 304 -I instead of Section 302 of the Indian Penal Code
9. In view of above discussion of the evidence on record, and clear findings by the trial Court regarding conviction under Section 304 - I of the Indian Penal Code instead of Section 302 of the Indian Penal Code, the only issue remains for this Court to be decided is whether appellant can be awarded clear acquittal like remaining two accused or not and that whether quantum of punishment being 10 years rigorous imprisonment for the offence punishable under Section 304 - II of the Indian Penal Code is proper or not.
10. For the purpose, I have perused the impugned judgment in detail and I do not find any specific discussion to confirm that punishment in form of 10 years rigorous imprisonment is must and is the only punishment, so as to serve interest of justice.
11. Moreover, we cannot forget that for the same offence when present accused has filed cross - complaint regarding attack on his Page 26 of 33 R/CR.A/450/2006 CAV JUDGMENT house, same trial Court has acquitted other accused from the charges under Section 147, 148, 149, 150, 336, 337, 427 of the Indian Penal Code as well as Section 25(1)(A) of the Arms Act and Section 135 of the Bombay Police Act only by extending benefit of doubt. The copy of the judgment in such Sessions Case No. 267 of 1997 is produced, which is to be kept on record, wherein though entire incident is narrated and when witness of present case has confirmed that there is an incident of stone pelting and panchnama proves the presence of stone and damage to the doors and windows as well as rickshaw. Though benefit of doubt can be extended, if all witnesses could not identify a person who has thrown the stone or bricks, the fact remains that there is clear evidence on record that the complainant side has gone to the place of the accused, thereby they had initiated a quarrel and thereafter if there is stone pelting from the side of the complainant certainly accused might have tried to safeguard himself. In view of such fact considering the admission of accused No.1 in his deposition at exhibit 101 when he has fired on the crowd with knowledge that somebody will die, it cannot be said that his act is not in self defence and, therefore, even if conviction is to be confirmed, in my opinion, it should not be the highest as imposed by the trial Court.
12. The appellant is relying upon following decisions:
1. Darshan Singh vs. State of Punjab & Anr. reported in Page 27 of 33 R/CR.A/450/2006 CAV JUDGMENT AIR 2010 SC 1212(1), wherein Honourable Supreme Court has while dealing with the provisions of Section 3 of the Evidence Act extended the benefit of doubt in favour of the accused when no palate was recovered from the body of injured person. Thereby, Honourable Supreme Court has while allowing the appeal confirmed the judgment of Sessions Court and set aside the order of conviction passed by High Court. Role attributed by the present appellant is fully covered by his right to private defence. If we peruse the factual details, it becomes clear that when deceased has given axe blow, accused fired from 12 bore gun which caused death of the deceased. Thereupon the trial Court has believed the possibility of grave injury to the accused and thereby extended right of private defence. The Honourable Supreme Court has observed that the trial Court's view was not only possible or plausible view but based on correct analysis and evaluation of entire evidence on record. The most plausible observations by the Honourable Supreme Court is to the effect that judgment of acquittal cannot be set aside only on the ground that version given by complainant was more truthful, when the accused Darshan sinh in such case has admitted in his statement under Section 312 of the Code of Criminal Procedure that he had fired. The situation before us is almost similar.
2. Krishnan v. State of T. N. reported in AIR 2006 SC Page 28 of 33 R/CR.A/450/2006 CAV JUDGMENT 3037, wherein Honourable Supreme Court has while considering the plea of private defense held that High Court ought to have considered the said plea, which goes to root of the matter. The Honourable Supreme Court has further held that plea of private defense cannot be claimed if accused did not admit his act. However, in the present case, accused has admitted his act of firing. Ultimately, Honourable Supreme Court has confirmed that if accused has acted in his self defense then there is no reason to convict him and thereby Honourable Supreme Court has allowed the appeal and acquitted the appellant from all the charges. Though appellant before it attempted to cause fatal blow to the victim.
3. Vajrapu Sambayya Naidu & Ors. v. State of A.P. & Anr. reported in AIR 2003 SC 3706, wherein again Honourable Supreme Court has confirmed that when accused have attacked in private defence of property as well as of person and thereby given benefit of doubt. Honourable Supreme Court has not only acquitted the appellant who was before it but extended such benefit to all other accused, who have not preferred an appeal before the Honourable Supreme Court.
4. Laxman Singh v. Poonam Singh & Ors. reported in AIR 2003 SC 3204, wherein Honourable Supreme Court has confirmed that it is not necessary for the accused to plead in Page 29 of 33 R/CR.A/450/2006 CAV JUDGMENT so many words that he acted in self defence though burden to establish self defence lies on accused. However, confirming that such burden to establish plea of self defence lies on accused and such burden stands discharged by reference to circumstances and material available on record and accused is not required to call evidence in support of his plea. What is to be considered is to see that who was aggressor in dispute. However, in this reported case though accused were aggressor in assaulting the complainant party, since final act was in self defence, the Honourable Supreme Court has allowed the plea of self defence on aforesaid settled principle and allowed the appeal by acquitting the accused on the ground of self defence.
5. Subramani & Ors. v. State of T.N. reported AIR 2002 SC 2980, wherein right of private defence was again considered by the Honourable Supreme Court while acquitting the accused contending that if there is apprehension of death or grievous injury as a consequence of any assault, the right of private defence was extended to voluntarily causing of death of assailants. Further confirming that force used by person in peril cannot be weighted in golden scale.
6. Ram Kumar & Anr. v. State of Haryana reported in AIR 1998 SC 1437, which seems to be almost similar to the present situation, wherein Honourable Supreme Court has Page 30 of 33 R/CR.A/450/2006 CAV JUDGMENT held that when there is possibility that complainant party attacked accused first and accused fired in exercise of right of privat defence, then accused is entitled to acquittal. Similar situation is before us, as it is admitted position that complainant party has rushed to the house of the appellant - accused and started quarral there. If they would not gone there; there could not be any such un-happy incident and therefore appellant's plea to right of private defence has some substance.
7. Smt. Rukma & Ors. v. Jala & Ors. reported in AIR 1997 SC 3907, which confirms that only because complainant party received more injury and death; accused cannot be said to be aggressor and thereby plea of self defence was accepted.
12.1 However, after going through all such cited cases though there is strong plea of self defence, with defense evidence to prove that it was other-side which had initiated the disturbance at his place, the fact remains that accused has admitted that he has fired by revolver towards crowd wherein one person has died. It is also admitted position that accused was residing at second floor of the flat, where it would not be easy for the crowd to reach. Moreover, accused was in his balcony i.e. in safe place of his house and, therefore, unless crowd would break open door of his flat, crowd Page 31 of 33 R/CR.A/450/2006 CAV JUDGMENT cannot reach to the appellant. Moreover, before firing on crowd, he should have fired at least one more round in the air and to inform the police on phone immediately. It is also revealed from the evidence that there is a police chowki in nearby area. No doubt appellant may be afraid of police because of cases against him and may be because of influence of other-side, but even in that case before opening fire on crowd, he could have opened second round in air so as to allow the crowd to go away from the place. In any case, there is death of a human-being for which appellant is certainly responsible as he himself in his deposition stated that he has opened fire on crowd.
13. If we peruse explanation of Section 300 of the Indian Penal Code, which allows the plea of private defence in its 3rd exception, it goes to show that if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, then the same has to be treated as culpable homicide and, therefore, trial Court is right in awarding a sentence under Section 304 - I of Indian Penal Code instead of Section 302 of the Indian Penal Code. However, considering the overall facts and circumstances, evidence and law applicable to such cases, I am of the considered opinion that quantum of sentence is certainly on higher side when there is 10 years rigorous imprisonment even though there is a clear case of self defence.
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14. Therefore, though decision of conviction by the trial Court is to sustain, whereby trial Court has convicted the accused No.1 alone, acquitting his two brothers who were standing nearby under Section 304 - I of the Indian penal Code only, the decision of trial Court regarding quantum of sentence needs to be modified.
15. After scrutinizing the entire evidence I am clearly of the view that the award of sentence is certainly on a higher side and requires to be modified. The jail record shows that appellant has remained in imprisonment for more than two years and 10 months and, therefore, it would be appropriate to reduce the imprisonment from 10 years to actual imprisonment undergone by him. In view of above facts and circumstances, the appeal is partly allowed. The charge under Section 304 -I of the Indian Penal Code is confirmed and sentence is reduced from 10 years to the period already undergone by the appellant. Appellant is on bail. Therefore bail bond shall stand cancelled. Records and Proceedings be sent back to the trial Court immediately.
(S.G.SHAH, J.) drashti Page 33 of 33