(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The appellant was accused No.1 who came to be tried by City Sessions Court, Ahmedabad, along with Chetankumar Babubhai Panchal and Bharatsinh Chandansinh Chauhan as accused No.2 and 3 respectively in Sessions Case No.81 of 2001 for offences punishable under Sections 143, 147, 148, 149, 249(b), 302 and 307 of Indian Penal Code and Section 25(1B)(a) of the Arms Act. The learned City Sessions Judge by judgment dated 27.6.2003 convicted the appellant of the charge of attempted murder of Sadikbhai Kalubhai Shaikh and held guilty for the offences under Section 302 of IPC as well as for the offences punishable under Section 27 and Section 25(1B)(a) of the Arms Act, whereas, he was acquitted for the charges punishable under Sections 143, 147, 148, 149, 249(b) and 307 of IPC. After hearing the accused on question of point of sentence, the learned Sessions Judge has sentenced him to imprisonment for life with a fine of Rs.10,000/, and in default to recover the same in accordance with law. He was also sentenced to undergo R.I. for a period of seven years, and to pay a fine of Rs.5,000/, and in case of default to undergo S.I. for six months for offence punishable under Section 27 of the Arms Act. He was also sentenced to undergo S.I. for a period of one year with a fine of Rs.1,000/, and in default, to undergo S.I. for three months. All the sentences were ordered to run concurrently and hence this Appeal.
2. Facts of the prosecution case in brief are that the accused persons had taken loan from Ashok Leyland Finance for purchase of the vehicles. As the accused persons have failed to repay the loan amount, the finance company decided to recover their vehicles, and a authority letter was given to the Recovery Agents on 19.1.2001. The Recovery Agents went to the residence of Bharatsinh Nathusinh with two other persons where Bharatsinh with one Chetan Babubhai Panchal and Bharatsinh Chandansinh Chauhan as well as two other persons Mahesh Mohanlal and Deepak Yadav had formed an unlawful assembly and took up the fight with recovery agent Maksudkhan Kasimkhan, who was abused by Bharatsinh (accused No.1) who was armed with pistol, whereas Chetankumar Babubhai Panchal (accused No.2) and Bharatsinh Chandansinh Chauhan (accused No.3) were respectively armed with hockey and sword. They abused Mohammad Yasin Abubakar (complainant) and Sadik Kalubhai Shaikh, who had accompanied Maksudkhan, where the accused No.1 is alleged to have caused fire arm injuries to Maksudkhan and also attempted to murder Sadik Kalubhai Shaikh by a fire arm injury. Maksudkhan succumbed to the injuries, and during this incident, the accused No.2 and 3 also injured the deceased with sword and pipe.
2.1 The incident occurred on 19.1.2001 at about 11:00 a.m. in Bapunagar area in front of N.M.Palace Bungalow, Nr. Raghunath Hindi School. An FIR was lodged by Mohd. Yasin Abubakar Memon, P.W.3 with Bapunagar Police Station alleging involvement of the three accused persons as stated hereinabove, and on basis of which, offence was registered, investigated and a chargesheet was filed against all the three accused persons.
2.2 Before the trial, charge was framed at Exh.8 which was altered as per order below Exh.134, and Section 34 of IPC came to be added. The accused pleaded not guilty to the charge and claimed to be tried. At the end of trial, the trial court found that the prosecution has established the case against the accused No.1 for murder of Maksudkhan, whereas rest of the accused were given benefit of doubt.
2.3 The prosecution has examined 20 witnesses. The court has examined one witness, whereas defence has examined three witnesses. Out of the witnesses examined by the prosecution, the witnesses Sadik Kalubhai Shaikh, Mohd.Yasin Abubakar Memon, Hamidbhai Kasambhai Jadav, Arvindbhai Bachubhai Ahir, Kiritkumar Ratilal Bhatt and Nasirkhan Abdullakhan Pathan have not supported the prosecution case. The rest of the witnesses are Government witnesses or police witnesses.
3. Having been taken through the bulky record, learned advocate Mr.Yatin Soni appearing for the appellant has submitted that, except Government or Police witnesses, all other witnesses have turned hostile including the injured witness to the incident. The link between the accused and the offence is not established by the prosecution even by circumstantial evidence. Still the trial court has recorded conviction which may be set aside and the accused be acquitted of the charges levelled against him.
4. Learned APP Mr.Neeraj Soni appearing for the State has opposed this appeal. According to him, there is previous statement of Sadikbhai Kalubhai Shaikh (P.W.2 Exh.24) recorded by the Executive Magistrate as dying declaration. The witness is survived, it can be used as it previous statement, and in that statement, he has implicated the accused. The trial court, therefore, cannot be said to have been committed any error in convicting the accused and the appeal, therefore, may be dismissed.
5. We have gone through the Record and Proceedings in context of the rival submissions. This Court may at the outset indicate that this is a case where all independent witnesses, other than Government or Police witnesses, have not supported the prosecution case. The prosecution story is that the accused persons intercepted the vehicle which was purchased by the owner by taking loan and hypothecating the vehicle to loaner. Since the instalments were not paid, the recovery was sought to be affected, and at that point of time, the appellant had open fired from the firearm with which he had with him and then sat into Jeep Car and went away. There is no evidence worth any to connect the accused No.1 with the offence of having used a firearm for causing death of Maksudkhan. In this context, it was urged by learned APP Mr.Neeraj Soni that the accused No.1 was arrested by police while chasing him.
5.1 However, we find that there is no nexus establish by any of the evidence. The Investigating Officer, who claims to have apprehended the accused No.1, states that he was on duty at cross road located Nr.Nikol Chowkdi where he was informed by unknown cyclist about the firing, therefore he reached at the place of the incident. He found the deceased in seriously injured condition and, therefore, the police constable was directed to take him to the hospital. Thereafter he was told by another unknown cyclist that the assailant (accused No.1) was escaping in the Armada Jeep. He, therefore, chased that Jeep, and ultimately, after a long chase, accused No.1 came to be arrested. According to this witness, he had to chase the accused No.1 for about one and half hour. In our view, the story advanced of this witness does not inspire confidence. If he reaches the place of incident, manages for sending the injured person in an auto rickshaw to the hospital, where again the unknown cyclist informed about the assailant escaping in Armada Jeep, who is accused No.1, would an assailant stand there till all these things happen and then tried to escape. Is this a natural conduct? The answer is “No”. The conduct of the assailant would be to commit the crime and run away and he would not wait till the cyclist informed the police and then police would come and took the injured to the hospital in an auto rickshaw and then the assailant was mound the Jeep and go away. Apart from these, it is to be noted that no objectionable article was seized from accused No.1 at the time of arrest. The recovery/discovery of weapon is subsequently made from an open place after three days of arrest.
5.2 In fact, if the prosecution material is seen, the story is that the two injured persons were taken to the hospital, and from that hospital, a wardhi was sent to the police. Reading that wardhi Exh.35, it is found that the name of the accused is revealed therefrom. That wardhi was sent by police constable. The second wardhi is at Exh.36 in respect of injury caused to P.W.2 Sadik Kalubhai Shaikh, where name of Bharatsinh Chauhan appears. Exh.35 was sent by Head Constable Ratansinh, whereas Exh.36 was sent by Mangalbhai Bhulabhai does not reveal the name of the assailant. It also says attacked by unknown person. Exh.36 was sent by Mangalbhai Bhulabhai upon information received by him from Chief Medical Officer Dr.Sureshbhai.
5.3 Now, Dr.Sureshbhai of V.S.Hospital has not been examined as a witness who could thrown light on the question as to who informed him about the name of Bharatsinh Chauhan as the assailant. In this context, the medical case papers would be relevant where the name of the assailant is not disclosed. Therefore, it becomes very important to know where from does this name of the appellant emerge as the assailant, and that piece of evidence is not brought on record by the prosecution. At this stage, it would also be relevant to note that Exh.36 the name of Bharatsinh Chauhan has been mentioned as the assailant. The accused No.1 is Bharatsinh Nathusinh Chauhan and accused No.3 is Bharatsinh Chandansinh Chauhan. Now which of these two was the assailant is also a question that remain unanswered.
6. Learned APP Mr.Neeraj Soni submitted that, in the dying declaration before the Executive Magistrate, P.W.2 Sadik Kalubhai Shaikh implicated the appellant. But, that dying declaration looses the character being the dying declaration, the moment declarant survives. Here Sadik Kalubhai Shaikh is survived and he has been examined as P.W.2 at Exh.24. He has turned hostile to the prosecution case and has not disclosed anything about having made declaration before the Executive Magistrate implicating the appellant as the assailant. He has been crossexamined by the prosecution but in vague. He denies everything. He states that he does not remember whether he has made a statement for implicating the accused. In such set of circumstances, no reliance can be placed on the socalled dying declaration. Similarly, the allegation in the FIR also would be of no significance as the first informant P.W.3 Exh.26 Mohd. Yasinbhai Abubakar Memon also does not support the prosecution case. Contents of FIR remain unproved and cannot be used in evidence. The FIR, even otherwise, is not a substantive piece of evidence, and the first informant, when he does not support the FIR, the contents thereof cannot be used against the accused.
7. With the above facts on record, particularly, when the star witnesses to the incident have not supported the prosecution case, and there is no material to connect the accused with the offence, the conviction could not have been recorded by the trial court. In our view, the trial court erred in relying on the dying declaration of P.W.2 Exh.24 Sadikbhai Kalubhai Shaikh which lost the character of being a dying declaration. As P.W.2 Sadikbhai Kalubhai Shaikh survived after the injury and he also did not support the prosecution case, there is total lack of reliable evidence to connect the accusedappellant with the crime which aspects appear to have been overlooked by the trial court. There is inconsistency in evidence so far as discovery of weapon is concerned. The discovery is claimed to have been made by the appellant on fourth day of his arrest from an open place accessible to one and all. That discovery is of no virtue to the prosecution case for the reason that panch witness Arvindbhai Bachubhai Ahir has turned hostile and second panch witness is not examined. Similarly, recovery of hockey etc., is also not duly proved as panch witnesses have turned hostile.
8. In the result, the appeal is allowed. The conviction of the appellant recorded by the learned Additional Sessions Judge, Court No.9, City Civil & Sessions Court, Ahmedabad in Sessions Case No.81 of 2001 dated 27.6.2003 is hereby set aside. The appellant is acquitted of the charges levelled against him and he will be set at liberty forthwith if he is not required in any other case. Fine, if paid, be refunded to him.
(A L DAVE, J.) (A J DESAI, J.) syed/