MUSTAK @ KANIO AHMED SHAIKH versus STATE OF GUJARAT on 18 June 2020

[2020] 5 S.C.R. 360

SUPREME COURT REPORTS

[2020] 5 S.C.R.

MUSTAK @ KANIO AHMED SHAIKH

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v.

STATE OF GUJARAT

(Criminal Appeal Nos. 488-489 of 2017)

BJUNE 18, 2020

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – s.307 r/w. s.114 – Arms Act – s.25(1)(B)(a)– Bombay Police Act – s.135(1) – Attempt to murder – Prosecutioncase that victim, who was going to his laboratory was shot on faceCin his car from a motorbike driven by the appellant – The firstaccused was the pillion rider – The bullet was operated and removed– Thereafter, the statement of victim was recorded by the investigatingofficer – Both appellant and the first accused were arrested – TheTrial court convicted the appellant and the first accused of theDoffence punishable u/s.307 r/w. s.114 IPC and s.25(1)(B)(a) of theArms Act r/w. s.135(1) of the Bombay Police Act – Both thecomplainant -driver of victim and the victim had identified theappellant – The Trial court sentenced the appellant and the firstaccused to undergo rigorous imprisonment for six years – The HighCourt enhanced the sentence of imprisonment for offence u/s.307Er/w s.114 IPC to seven years instead of six – Before the SupremeCourt, the appellant contended that identity of the appellant wasnot established – Held: The appellant was identified by both thevictim and the complainant apart from pancha witness – Be that asit may, the testimony of an injured victim is sufficient for convictionF– The complainant had identified the appellant as the driver of themotor cycle – The Judicial Magistrate had corroboratedidentification of the appellant by the complainant in the TestIdentification Parade – It is also clear that the appellant as well asthe dummies were brought before the Judicial Magistrate beforethe witness arrived – The defence was not able to show any infirmityGin the identification parade of the appellant which vitiates theidentification – Further, the pancha witness testified to the recoveryof the weapon in his presence, at the instance of the appellant andidentified appellant in Court – Also, the prosecution had establishedfrom the ballistic report and the evidence of FSL experts that theH

bullet that was extracted from the body of the victim, was fired fromthe weapon recovered on the confession of the appellant – TheTrial court had successfully established the chain of events, linkingthe crime to inter alia the appellant – Thus, the conviction andenhancement of sentence imposed on appellant by the High Courtaffirmed.

Dismissing the appeals, the Court

HELD: 1. The Trial Court, in effect, found:

(i) It had been established beyond any iota of doubt thatthe victim had sustained bullet injuries. It had also been provedthat the incident had taken place and in the manner alleged.

(ii) The contention of the defence that the injuries werenot so life threatening or grave or serious as to attract Section307 of the Indian Penal code was not acceptable, considering thetestimony of three Medical experts who deposed with regard tothe gravity and seriousness of the injury.

(iii) The evidence of the FSL (Forensic Science Laboratory)Expert, coupled with Exhibit 92 established that an offenceattracting the provisions of Section 307 of the Indian Penal Codehad taken place.

(iv) The recovery of the weapon in terms of Panchnama(Exhibit 88) was proved beyond reasonable doubt.

(v) Minor irregularities on the part of the investigation and,in particular, the casual manner in which the Investigating Officer(PW-14) testified would not vitiate the case of the Prosecution.

(vi) The Appellant as also first accused were duly identifiedboth by the complainant (PW-8) and the victim (PW-12) in courseof identification parade held on 1st and 3rd January 2003 andthey were also identified in Court. The mere fact that theIdentification Parades were held on different dates would notrender the identification unreliable.

(vii) Both the eye-witnesses had identified the Appellantand the first accused as being the persons who were on themotorcycle. The motor cycle was driven by the Appellant and thefirst accused was the pillion rider. Both the eye-witnesses had A

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Aseen the pillion rider, that is, the first accused handling the weapon.The victim clearly deposed that the first accused had fired at thevictim at point blank range. The said witnesses remainedunshaken despite extensive cross-examination.

(viii) The concerned Executive Magistrate who conductedBthe identification parade (PW-11) corroborated the evidence ofPW-12 and PW-8 with regard to the identification and he alsocould not be shaken despite extensive cross-examination.

(ix) The Panchnama being Exhibit-88 relating to recoveryof the weapon was duly proved by the oral testimony of PanchaCwitness (PW-10) who had also identified the Appellant.

(x) The Prosecution had established from the ballistic reportbeing Exhibit-92, and the evidence of FSL experts that the bulletthat was extracted from the body of the victim, had been firedfrom the weapon recovered on the confession of the Appellant.D[Para 56][380-F-H; 381-A-H]

2. The sessions Judge, correctly found that notwithstandingminor discrepancies, the Prosecution had successfully establishedthe chain of events, linking the crime to inter alia the Appellant.[Para 57][382-A]

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E3. In this appeal, this Court is not concerned with theconviction of the first accused. The involvement of the Appellantin the offences alleged has duly been established inter alia by theinjury of the victim; extraction of bullet from the body of thevictim; linking of the bullet to the weapon recovered on theFconfession of the Appellant upon Forensic examination; theevidence of two eye-witnesses to the crime, namely thecomplainant (PW-8)and victim (PW-12); Identification by thecomplainant and the victim of the Appellant in the IdentificationParades as also in Court; Identification by the Pancha witness(PW-10) of the Appellant as the person at whose instance theGweapon of offence was recovered. [Para 58][382-B-C]

4. The finding of the Sessions Court that the Prosecutionhad not been able to establish the involvement of the thirdaccused, or to establish that the Appellant and the first accusedwere part of a conspiracy, which had targeted prominent leaders H

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of the Hindu community did not warrant interference. The HighCourt rightly dismissed the Criminal Appeal No.1145 of 2006,and allowed Criminal Appeal No.567 of 2006 filed by theRespondent State, only to the extent of enhancing the sentenceof imprisonment inter alia of the Appellant to 7 years underSection 307 read with Section 114 of the Indian Penal Code,considering the gravity and seriousness of the offence.[Para 59][382-D-E]

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Iqbal and Another v. State of Uttar Pradesh (2015) 6SCC 623 : [2015] 6 SCR 239; Salim Akhtar @ Mota v.

State of U.P (2003) 5 SCC 499 : [2003] 3 SCR 470;Bodhraj @ Bodha and Others v. State of Jammu &Kashmir (2002) 8 SCC 45 : [2002] 2 Suppl. SCR 67 –referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 488-489 of 2017.

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From the Judgment and Order dated 29.09.2015 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 1145 of 2006.

Ms. Meenakshi Arora, Sr.Adv., M.M. Saikh, Ms. Monisha Handa,Mohit D. Ram, Ms. Jesal Wahi, Ms. Vishakha, Ms. Mamta Singh,Ms. Hemantika Wahi, Advs. for the appearing parties.

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The Judgment of the Court was delivered by INDIRA BANERJEE, J.

1. This appeal is against a common judgment and order dated 29[th]September 2015 passed by a Division Bench of the High Court of Gujaratat Ahmedabad, dismissing Criminal Appeal No.1145 of 2006, filed by theAppellant, partly allowing Criminal Appeal No.567 of 2006, filed byRespondent State, affirming the judgment and order of conviction dated18[th] January 2006, passed by Additional City Sessions Judge (Court No.6)

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Aat Ahmedabad City in Sessions Case No.245 of 2004, but enhancing thesentence of rigorous imprisonment from six to seven years, for offenceunder Section 307 of the Indian Penal Code.

2. The learned Sessions Judge had, by his aforesaid judgment andorder convicted the Appellant and one Salim alias Salim Chaurala YakubhaiBPatel, hereinafter referred to as the first accused, of offence punishableunder Section 307 read with Section 114 of the Indian Penal Code andSection 25(1)(B)(a) of the Arms Act read with Section 135 (1) of theBombay Police Act for targeting and attempting to murder one Dr.Jaydeep Patel, hereinafter referred to as the victim, by aiding and abettingeach other. The third accused, Abhasbeg Habibbeg Mirza, was acquittedCof all the charges levelled against him.

3. The learned Sessions Judge sentenced the Appellant and thefirst accused to undergo rigorous imprisonment for six years for offenceunder Section 307 read with Section 114 of the Indian penal Code, rigorousimprisonment for three years for offence under Section 25(1)(B)(a) ofDthe Arms Act and rigorous imprisonment of six months for violation ofSection 135(1) of the Bombay Police Act, to run concurrently. By thejudgment and order under appeal, the High Court has inter alia confirmedthe judgment and order of conviction of the appellant and the first accused,passed by the Session Judge, but enhanced the sentence of imprisonmentEfor offence under Sections 307/114 of the IPC to seven years instead ofsix.

4. It is the case of the Prosecution that the victim, who was goingto his laboratory from his residence at around 4.45 p.m. on 3.12.2002, inhis Indica Car bearing the Registration No. GJI HE 1575, driven by hisFdriver Jignesh G. Vyas, being the complainant, was shot near the GalaxyCinema, from a pistol fired by the first accused, from a motorbike, drivenby the Appellant, on which the first accused was the pillion rider.

5. When the car had to slow down to negotiate a speed breaker,as it was approaching the Galaxy Cinema, the Appellant suddenly stoppedGthe motorbike beside the victim’s car, on the side the victim was sitting,and the first accused took out a pistol and fired at the victim, after whichthe Appellant and the first accused fled the scene of occurrence. Thebullet pierced the glass window and hit the victim on his face.

6. It appears that, after the victim was shot, he instructed thecomplainant to take him to the Hospital of Dr. Pareshbhai, which wasH

nearby. However as Dr. Pareshbhai was not available, the victim wastaken to Anand Surgical Hospital of one Dr. Narender Sanghvi, at Siazpur,where the victim was given preliminary treatment. On the advice of Dr.Singhvi, that the victim should be taken to a better equipped hospital, thevictim was rushed to Sterling Hospital. In the meanwhile, the complainantfiled a complaint under Section 157 of the Criminal Procedure Codewith the police who had rushed to the Anand Surgical Hospital on gettinginformation of the incident. The complaint was forwarded to NarodaPolice Station and registered as ICR 530/02.

7. Thereafter, the police took up investigation, examined thecomplainant, went to the place of occurrence, seized articles such aspieces of broken glass etc. Later, the clothes worn by the victim whenhe was shot, the mats of the car and a cover kept on the rear seat of thecar,described as carpet which contained human blood etc., and otherarticles found inside the car were also seized. After the bullet wasoperated and removed and the victim was in a position to be examinedthe Investigating Officer recorded his statement. The first accused andthe Appellant were arrested on 30.12.2002 and 31.12.2002 respectively.Identification Parade of the first accused was held on 2.1.2003 and thatof the Appellant, arrayed the second accused on 4.1.2003. While theaccused were in custody, the weapon used for the offence was recoveredby the police on the confession of the Appellant, from the place shownby the Appellant.

8. Three weapons- a country made pistol, a pistol apparently madein England and another pistol apparently made in China, were recoveredfrom underneath the earth in an open ground near the Shahalam Dargah,described in the Panchnama under which they were seized. The weaponswere sent to the Forensic Science Laboratory for analysis and test asalso the bullet recovered from the body of the injured.

9. The prosecution has alleged that the victim was targeted as asequel to the communal riots in Ahmedabad after the Godhra incident,which had taken place in February 2002. The accused had entered intoa conspiracy to target and finish off prominent members of the religiouscommunity, to which the victim belonged. The accused personsaccordingly started monitoring the movements of the victim, a prominentmember of a religious organization and its Secretary at the time of theriots, who ran a pathological laboratory.

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A10. After the investigation was completed, charges were framedagainst the first accused, the appellant, arrayed as the second accused,and one Abhasbeg Habibeg Mirza arrayed as the third accused and thecase was committed to the Sessions Court and registered as SessionsCase No.245 of 2004.

11. To substantiate its case, the prosecution examined following14 witness including the complainant and the victim, who were eyewitnesses:- B

1. Haribhai Jethabhai

2. Jaimini P Patel

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3. Mahesh Ravjibhai Patel

4. Punambhai Ranchodbhai Patel

5. Dr. Narendra P Sanghvi

6. Devang M Parikh

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7. Pareshkumar P Jethwal

8. Jignesh G. Vyas

9. Dr. Anil Bansal

E10. Pradip Mohanbhai Patel

11. Mohmedyunus A Mansuri

12. Dr. Jaydeep A Patel

13. Dr. Shreekant Prabhakar

F14. Gagabhai L khunti

12. The Prosecution also relied upon the documentary evidencesuch as, the complaint filed by the complainant, medical reports/certificates of the victim, Panchnama prepared at the scene ofoccurrence, Panchnamas relating to recovery of articles, clothing etc.GPanchnamas relating to identification of the first accused and theAppellant (second accused), Panchnamas relating to recovery ofweapons on the basis of the statement of the Appellant and the bulletextracted from the body of the victim, Forensic Science LaboratoryReports, the Lie Detection Analysis Report etc.

H13. The victim who had himself deposed as the 12[th] Witness (PW-12) said that the incident had occurred around 4.45 p.m. on 3[rd] December

2002, when the victim was on his way to his pathological laboratoryfrom his home, in his car being a Tata Indica car, with Registration NumberGJI HE 1575, which was being driven by the complainant being hisdriver. The victim deposed that he was seated at the back, on the leftside of the car. When the car was passing by the Galaxy Cinema, itslowed down at a speed breaker. As the car negotiated the speed breaker,there was a noise from the left which the victim, later in crossexamination, explained as the sound of an approaching motorbike. Onhearing the noise, the victim turned in the direction of the motorbike,which was by the side of the car, and saw that there were two personson the motor cycle. The pillion rider had a weapon, which looked like apistol, in his hand. The pillion rider opened fire. The victim was hit by thebullet and he slumped to the right. He said he was taken to the hospitalof Dr. Pareshbhai which was near his laboratory but the Doctor was notthere. He then asked his driver to take him to Anand Surgical Hospital.He was in severe pain. They reached Anand Surgical Hospital andnarrated the incident to Dr. Narender Sangvi. Dr. Sanghvi startedtreatment, took an X-ray and gave primary treatment but recommendedthat the victim should be taken to a bigger hospital. Thereafter, the victimwas shifted to Sterling Hospital. The victim further deposed that afterexamining diagnostic reports, the doctors of Sterling Hospital decided tooperate on the victim. The operation was performed on 4[th] December2002 at the Sterling Hospital and the bullet was removed. The victimremained admitted in Sterling Hospital for about 8 days as an indoorpatient, after which he was discharged on 11[th] December 2002. He saidthat due to the injury, the bone below his left eye was broken for whichhe had to undergo treatment for about six months after his dischargefrom the hospital. He said that the vision of his left eye had deterioratedbecause of the injury.

14. In course of his examination, the victim asserted that he hadseen and could recognize both the Motorcyclists - the driver and thepillion rider, whom he had identified at the Test Identification parade,and also in Court.

15. The complainant deposed as the eighth witness (PW-8). Thiswitness (PW-8) deposed that he had to slow down the car near GalaxyCinema as there was a speed breaker. At that time there was a bikebehind the car with two persons. The person in front had dark glassesand a black cap. PW-3 said that just as he negotiated the speed breaker,he heard the sound of firing and on turning to his left he found that the AB

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Apersons on the bike were driving away towards Chandresh NagarSociety. The person sitting on the pillion had a weapon that looked likepistol or a revolver, which he put into the pocket of his jacket. WhenPW-8 looked behind he found that the left eye of the victim was bleeding.

16. This witness confirmed that he first took the victim to theBhospital of Dr. Pareshbhai but the Doctor was not there. The victim wastherefore taken to Anand Surgical Hospital of Dr. Narender Sanghvi,where the victim was given primary treatment. While the treatment wasgoing on, the police arrived and took his complaint. This witness identifiedthe complaint made by him and stated that the police officer had alsosigned the complaint in his presence. He confirmed that the facts statedCin the complaint were true.

17. This witness also stated that in deference to the advice of Dr.Narender Sanghvi that the victim should be taken to a better equippedhospital, the victim was shifted to Sterling Hospital on the same day.On the next day, the complainant showed the police the place ofDoccurrence. The police made investigations.

18. This witness (PW-8) stated that on 4[th] January 2003, the policesummoned him to Gheekanta Court. The Court peon made this witnesssit outside the Court for about 15 to 20 minutes after which he wastaken to the Court room before the Judge, and the Judge asked him toEidentify the accused from out of six persons. This witness identified theperson driving the motorcycle. The person identified by PW-3 statedthat his name was Mustak @ Kanio. After the identification, the Judgeasked the complainant to go out.

19. In Court this witness again identified the said person whom heFhad earlier identified during the identification parade and who had statedthat his name was Mustak @ Kanio. This witness also identified theperson driving the motor cycle, being the first accused, in Court.

20. This witness said that on the left back door of the vehiclethere was a small glass with a steel strip fitted to it. The bullet cameGfrom the said strip and the glass cracked. Pieces of glass fell on theback seat. The board at the back where speakers had been kept, theback seat belt as also the carpet on the seat were stained with blood.This witness also identified the clothes worn by the victim at the time ofthe incident.

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21. This witness was cross-examined at length. He, however,remained unshaken in cross-examination. He confidently deposed thatthe motorcycle was a Yamaha motor cycle. Though he did not know itsnumber. He confirmed that he had identified the second accused at theidentification parade and he had identified both the Appellant (secondaccused) and first accused (Salim) in Court, as the Driver of themotorcycle and the pillion rider, who had opened fire.

22. The recovery of the weapon with which the offence wascommitted, on the confession of the appellant, from underneath the groundfrom the place shown by the Appellant has been proved by the oralevidence of the Pancha Witness, Pradip Mohanbhai Patel who deposedas the tenth witness (PW-10). This witness also identified the Appellantin Court, as the person at whose instance three weapons were recoveredby the police, in his presence.

23. The Judicial Magistrate who conducted the Test IdentificationParade namely Mohmedyunus A. Mansuri, deposed as the eleventhwitness (PW-11). He corroborated identification of the Appellant by thecomplainant and the victim at the Test Identification Parades conductedby him.

24. Three doctors have deposed in this case. Dr. Narendra P.Sanghvi who deposed as PW-5 stated that he gave primary treatment tothe victim, conducted tests and recommended that the victim be taken toa bigger, better equipped hospital, considering the gravity of his injury.9[th] Prosecution Witness (PW-9), Dr. Anil Bansal , Chief Medical Officer,Sterling Hospital deposed that the victim had been brought to SterlingHospital at around 6:30 p.m. on 3[rd] December, 2002. He appeared tohave been injured by a bullet. This witness along with other Doctors hadphysically examined the victim. It appeared that he had a wound of onecentimeter below the left eye but he was fully conscious and his pulse,blood pressure etc. were normal. This witness deposed that the victimwas immediately shifted to the operation theatre where he was operatedupon and the bullet was taken out. The victim was discharged from thehospital on 11[th] December 2002.

25. This witness also identified the certificate issued by the hospitalto the victim regarding his injuries and treatment. He said that thecertificate was issued in printed form but he identified his hand writingand signature on the certificate. This witness observed that the injuries A

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Asustained to the patient could be said to be serious because bullet hadentered the neck of the patient from lower part of left eye.

26. The 13[th] Prosecution Witness (PW-13), Dr. Srikant, a Surgeonsaid that on 4[th] December 2002 he along with his team of Doctors hadperformed surgery of the victim who had a bullet injury. The bullet wasBlodged on the left side of the neck. This Doctor described how the bullethad been taken out. This Doctor also opined that the bullet was lodged ina vital part of the body.

27. From the depositions of the witnesses named above and thedocuments relied upon, there can be no iota of doubt that the victim wasCshot on 3[rd] December 2002 at around 4:45 p.m. near the Galaxy Cinemawhile he was on his way from his home to his pathological laboratory inhis Indica Car driven by his driver, the complainant. Both the complainant(PW-8) and the victim (PW-12) have deposed that while the said carslowed down near Galaxy Cinema to negotiate speed breaker a motorcycle which was following the car pulled up to the left, the pillion riderDpulled out pistol and fired at the victim (PW-12) at point blank range andfled away. Both the complainant and the victim have as eye witnesses,identified the Appellant.

28. The Appellant did not examine any witness. After the 14prosecution witnesses named above were examined the Appellant wasEexamined under Section 313 of the Criminal Procedure Code. His defencewas of total denial.

29. Ms. Meenakshi Arora, learned senior counsel appearing onbehalf of the Appellant submitted that the Test Identification Parade ofthe Appellant had been conducted contrary to the rules of evidence andFfailed to establish the identity of the Appellant. She argued that as perthe case of the Prosecution, the only two eye witnesses were thecomplainant (PW-8) and the victim (PW-12). However, the Appellantwho had been arrayed as the second accused had only been identifiedby PW-8.

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30. From the judgment and order of the Sessions Court, dulyaffirmed by the High Court, it appears that the Appellant has beenidentified by both the victim (PW-12) and the complainant (PW-8) apartfrom the Pancha witness (PW-10) Be that as it may, the testimony ofan injured victim is sufficient for conviction.

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31. To impress upon this Court that the complainant being thedriver of the car could not have recognized the Appellant, Ms. Arorapointed out that the complainant had, in his complaint stated “I saw thentwo persons were on the back behind my car, out of them the personplying had put on black goggles and black cap”. In his testimony in Courthe said:- “…….I saw back side from centre mirror. At that time twopersons were coming on bike after me, wherein the person infront had put on black glasses and back cap” (examination inchief)

…...Thereafter on 4/1/2003 the police summoned me atGheekanta Court. I reached over there between 3.45 to 4.00O’ clock evening. The peon made me seated outside of courtat the sitting place and I was again called after about fifteento twenty minutes. I was taken in the Court room before theJudge and the Judge over there asked me my name, addressetc. Thereafter asked me to identify the person I could identifyfrom six persons. That I had identified a person standing thirdand fourth in the middle and caught and dragged his hand.The Judge asked name to this person and the person statedhis name to be Mustak alias Kanio. On completion of theprocedure the (Judge) asked me to go. (examination in chief)

“….. It is true that, I have never seen any of the person seatedon the motor cycle prior the incident. It is true that I saw onlyback of person seated in back of the motor cycle. Said motorcycle went away from the place of incident at a speed of aboutforty to fifty kilometer. It is true that, after the incident themotor cycle went away on rough road turning by left backside door of our car. Said motor cycle did not go from frontof our car but turned on left side back door of our car andwent away” (Cross-examination)

It is true that I saw the motor cyclist, heard the blast, and themotor cyclists were turned towards Chandresh Nagar, all thiswas happened just within blink of eye ….

It is true that at the very same time I saw the motor cycliststurning towards Chandreshnagar. It is true that the road onwhich our vehicle was, is very busy road. It is not true that it A

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was not the Yamaha Motor cycle but was the motor cycle likeYamaha. The witness empathetically states that, it was theYamaha motor cycle only. It is true that, on occurrence ofincident I did not come out from the car. For the first time Icame out form the car after reaching to hospital of Dr. PareshShah, at that time Jaydipbhai was also taken out of car….

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It is true that especially about physical description of thepersons ride on motor cycle I only knew that they could betwenty to twenty five years of age.

It is true that, none of the person in identification paradeCwere wore gape or glasses. It is true that, none of the personfrom identification parade had subtle eye.

(cross-examination)

32. Referring to the evidence of the complainant, as extractedabove, as also the part of the complaint extracted above, Ms. AroraDemphatically argued that the complainant could not possibly have identifiedthe Appellant with certainty as the Appellant had been wearing darkglasses and a cap, the motor cycle was behind and not in front of the car,the complainant had seen the Appellant from the rear mirror when themotor cycle was at a speed of 40-50 kilometers per hour and the motorEcycle had turned away within the blink of an eye, after the complainantturned around on hearing the pistol shot.

33. With the greatest of respect, the evidence of the witnesseshave to be read as a whole. Words and sentences cannot be truncatedand read in isolation. The witness has categorically stated that he wouldFbe able to identify and actually identified the driver of the motor cycle asthe Appellant. The PW-11 being the Judicial Magistrate has corroboratedidentification of the Appellant by the complainant in the Test IdentificationParade.

34. Ms. Arora thereafter referred to Testimony of PW-11,Mohmedyunus A Mansuri, the Judicial Magistrate who conducted theGTest Identification Parade and in particular the following portions:- “The accused of this case was brought before me in the courtroom at 16.30 hours on 2/1/2003, the name, address was askedto the accused and same was verified, they were made to sitin the court…..

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…...Thereafter, called five dummy persons from outsidethrough my peon. In the meantime the witnesses of the casehad not come and my another peon had informed about theycame at 16.35 o’clock.(examination in chief)

….. It is true that the accused was not produced covered inthe veil…..

…...It is true that, physical description of none of the dummyare given in the panchnama. It is true that, in the yadi exhibit-64 it has been mentioned that the accused is aged about twentyto twenty five years. It is true that none among the dummy isaged 27 years…..

…..I did not ask the witness as to have you seen the accusedbefore the identification parade or not.

It is true that it was appeared from the yadi that two personswere the motor cyclist and had put on black goggles and blackcap and were aged about twenty to twenty five years of age.It was also appeared from the yadi that the pillion rider hadput on black jacket and black jeans. It is true that it was alsomentioned in the yadi that the complainant can identify themotorcyclists and the witness can identify the person whoexecuted fire. From yadi exhibit-64 I did not feel that theaccused Salim was the driver of the motorcycle……

It is true that, in spite of my instructions both the accusedwere not brought to me covered under veil at the time ofidentification parade. I have not done any proceedings forthe police did not follow such clear instruction from me. It istrue that from both the yadis I had realized that which witnesscould identify to which accused.

It is true that, there is a corridor outside of my court roomand thereafter the compound wall is situated. It is true that,too many members of the police and public are in both placesthe corridor as well as compound. It is true that, I cannot sayanything that if the witness and accused were introduced tome when the witness and the accused were brought to me…..

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the age, height, look and cloths of dummy. It is true that noweven I am unable to give description of one dummy even…..

…...It is true that, after arranging the accused with the dummyin line, my peon had gone to call the witness, this washappened at both the times. It is true that, I cannot say thatBduring both this time if any conversation could have takenbetween my peon and the witness…..

…..It is true that, during both the panchnama I did not enquireto accused. It is true that, after completion of the panchnama,none of the witness from both did not inform that for whichCreason he has identified the accused….”

35. From the evidence of the PW-11, being the Judicial Magistrate,it appears that the Appellant as well as the dummies were brought beforethe Judicial Magistrate before the witnesses arrived. It is clear that theAppellant was duly identified by the eye-witnesses. The defence hasDnot been able to show any such infirmity in the Identification Parade ofthe Appellant which vitiates the Identification.

36. The suggestion of there being many police men in the corridoras also members of the public insinuates that the witnesses may havebeen been tipped off by the police. Apart from the fact that there isEabsolutely no evidence of any interaction between the witnesses and thepolicemen, the Judicial Magistrate has deposed that the Appellant wasbrought in before him, before the witnesses arrived. From the tenor ofthe oral evidence of the Judicial Magistrate, it is patently clear that hedeposed truthfully and did not try to cover up any loopholes or lacunae.

37. Ms. Arora’s submission that the Sessions Court accepted thatthe identity of the Appellant had not been established, but at the sametime convicted the Appellant on the basis of the testimony of the samewitnesses, is difficult to accept. The portion of the judgment of the TrialCourt relied upon by Ms. Arora is extracted hereinbelow:- F

30. It has been vehemently argued and, in my opinion, I may evenGventure to say that, the arguments are not entirely devoid of merit,that there are some doubts with regard to the identity of accusedNo.1 & 2 as being the perpetrators of the offence herein. Thereis some merit in the submission made on behalf of the defencethat, though the accused Nos.1 & 2 were already in the custodyHof the Naroda police on accused of their being arrested in connection with some other offence, there is no worthwhile reasonas to why their arrest was affected in the present offence nearlya week thereafter. There is further merit as to why since both theaccused were already in police custody i.e. to say custody of theNaroda Police on the relevant dates, the identification paradeswere separately held on 01.01.2003 and 03.01.2003 respectively.It is also necessary to note that, no satisfactory explanation hasbeen forthcoming from the Investigating Officer PW-14, who hasin my opinion, has testified in a rather casual manner and not tooserious fashion…..”

38. The judgment of the Sessions Court has to be read in entirety.Even though the Trial Court made certain observations with regard tothe casual manner in which the Investigating Officer had testified, theTrial Court found that the first accused and second accused had positivelybeen identified by both the concerned eye witnesses i.e., PW-12 andPW-8.

39. The relevant part of the judgment is extracted hereinbelow :- “31. It is required to be noted that, both the accused nos. I &2 have been positively identified in the course of valididentification parades by both the concerned eye witnessesi.e. to say PW-12 & PW-8 respectively as being the persons,who has come on the motor cycle driven by accused no.2 ofwhich, the accused no.1 was a pillion rider and what furtheremerges is the undisputed and uncontroverted fact of theaccused no.1 pulling out a pistol like weapon and firing it atDr. Jaydeep Patel at a point blank range. The identificationparades exhs. 65 and 67 respectively are corroborated byPW-11 being the executive magistrate and Mohmedyunus A.Mansuri and are further corroborated and supported by thetestimonies of PW-12 & PW-8 respectively and despiteextensive cross-examination by the Learned Advocate for thedefence, the testimony of all the three witnesses has withstoodthe test of cross examination and the cumulative effect of suchtestimonies make me unhesitatingly come to a conclusion that,both the accused Nos. 1 & 2 were positively identified in thecourse of the identification parades by PW-12 & PW-8respectively……”

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A40. We are unable to accept Ms. Arora’s submission that theHigh Court erred in dismissing the appeal and upholding the conviction,with the observation that the witnesses had extensively been cross-examined by the defence, but nothing incriminating had emerged in thecross-examination to disbelieve there evidence. It is a matter of recordthat both the witnesses had in the course of separate Test IdentificationBParades, positively identified the first accused as well as the Appellantherein.

41. Ms. Arora’s submision that the Courts below had erred inholding that the Appellant had positively been identified by ProsecutionWitnesses is also not sustainable. The identity of the Appellant has beenCproved beyond reasonable doubt, by the eye-witnesses to the crime aswell as the Pancha witness. It may be true that conviction based onerroneous identification and a faulty Test Identification Parade cannotbe sustained. The proposition of law in Iqbal and Another vs. State ofUttar Pradesh[1 ]cited by Ms. Arora is unexceptionable. However, in this

Dcase, the Appellant had actually been identified by both the victim andthe complainant and also in Court by the Pancha witness (PW-10), asobserved above. The identification cannot be said to be erroneous. Nordid the Test Identification Parade suffer from such infirmity as to vitiatethe identification itself.

E42. Ms. Arora next submitted that the prosecution has not beenable to establish the chain of custody of the bullet which was removedby Dr. Shrikant (PW-13) from the body of the victim. She referred toDr. Shrikant’s deposition that:- “ After the surgery we gave the bullet to sister we took out fromFbody of the patient, Sister means Standing Nurse, I do not haveperson knowledge that she gave it to whom, we gave her loosebullet. It is true that in medico-legal case when any bullet is takenout from body of anyone, then the care should be taken that noscratches whatsoever appeared on such bullet or it does not getdamaged in other way. I do not know anything as to such bulletGshould be kept in free box and to be sent to the F.S.L. It is truethat nowhere I have mentioned any description of said bullet.”(Cross-examination @ Pg. 118-119)”

43. Ms. Arora further pointed out that the Investigating Officerbeing the 14[th] Prosecution Witness (PW-14) had in his evidence statedH1 (2015) 6 SCC 623

“ ….Today I did not recall that whether the bullet which was producedbefore me by Sterling Hospital was in sealed condition or not…...”(Cross examination).

44. Ms. Arora argued that when conviction is based on firing of abullet, the Prosecution has to establish that the same bullet has been sentfor forensic examination. The Prosecution failed to do so. Ms. Aroraquestioned the correctness of the following findings of the Trial Court:- “The panchnama Exh.82 again finds corroboration and therefore,though much has been made out with regard to the mode of handingover the bullet to the Investigating Officer not being in accordancewith the provisions of law, I am of the opinion that, even if someirregularities are found to have taken place, the same cannotundermine and negate the prosecution version to the extent ofgiving a clean chit or thereby resulting in the acquittal of theaccused Nos. 1 & 2 as sought for by the defence”

45. We do not find any such error in the findings of the SessionCourt to warrant interference. When there is a time gap between anoccurrence and the trial it is impossible for police/Investigating Officerto recall minute details. Nor is it possible for a surgeon performing anoperation to remove a bullet from the body of a patient to throw light onthe chain of custody of the bullet, after it was made over to the attendingNurse. There was sufficient incriminating evidence for conviction of theAppellant.

46. Ms. Arora also argued that conviction of the Appellant placingreliance on alleged recovery of a weapon from an open ground cannotbe sustained. In support of her submission she referred to the testimonyof the Investigating Officer (PW-14) extracted hereinbelow:- “…..On 5/1/2003 the accused Mustak Ahmedbhai Shaikhexpressed his willingness to show the weapon used in this offenceas well as two other weapons which were hide buried in the groundopposite of Shahalam……

we came to Shahalam Darwaja, where the accused told that theJeep would no go further, therefore we get down, the accusedwalked ahead and from shahalam Dargah came into an openground from a street on opposite side and he removed the sandfrom the ground and took out and showed a weapon in a cloth bagwhich were two Pistols and Tamanca for which a detailed A

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378SUPREME COURT REPORTS

Apanchnama was drawn and seized and packed all the threeseparately and sealed them, a chit duly signed by the panchaswas placed in it and were sealed.”

47. Ms. Arora argued that the Prosecution could not have reliedon recovery of a weapon from an open field after one month from theBdate of the alleged incident. PW-14, Investigating Officer, could not standthe test of cross-examination with regard the description of the place ofalleged recovery and the direction thereto. To buttress her arguments,Ms. Arora referred to the cross-examination of the PW-14 where hestated:- C“it is not true that the place from where the accused found theweapon is situated too far and deep from the main road. I do notrecall now that after getting down from the Jeep and to reach tothe place, it comes after three curves, or not, I do not recall now.It is true that too many residential houses comes on the way, Icannot say that what is situated in front of row of those residentialDhouses. It is true that the place from where the weapon wasfound out was open space, there was no traffic. I have not recordedstatement of anyone form the residential houses situated nearbythe said place.”

48. In my considered opinion, minor discrepancies in evidenceEand inability to recall details of the description of houses, roads and streetsafter several years, do not vitiate the evidence of recovery itself. TheAppellant showed the police the spot where the weapons had been hiddenunder the sand. The Trial Court upon appreciation of evidence on recordvery rightly held:- F

“Again providing positive corroboration to the entire version is thefact of the discovery of the muddamal weapon in terms of thepanchnama exh.88 at the behest of accused no.2 whichpanchnama, positively establishes the recovery of the muddamal.The said panchnama derives independent corroboration and supportGin the testimony of PW-10 Pradeep Mohanbhai Patel, who hasnot only positively identified accused No.2 but has also given acomplete corroboration to the process reflected in the panchnamaexh.88. The Panch witness has also, in my opinion, clearlywithstood the test of extensive cross-examination and in my opinion,there is no reason to discard or disbelieve such witness.

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……… The prosecution in my opinion, has successfully establishedthe chain of events linking the tanking place of the incident,establishing the positive identity of accused Nos.1 & 2, recoveryof the muddamal weapon at the behest of accused No.2.

49. In support of her submission that recovery from an open placeaccessible to all was vitiated and could not have been relied upon forconviction of the Appellant, Ms. Arora cited the following judgments:-

1. Salim Akhtar @ Mota v. State of U.P[2]

2. Bodhraj @ Bodha and Others v. State of Jammu & kashmir[3]

50. From the evidence and materials on record it cannot be saidthat recovery of the weapon of offence was from an open placeaccessible to all. The weapons were dug out from underneath the sandin an open ground behind the Shah Alam Dargah.

51. Ms. Arora finally argued that the Prosecution had failed toprove motive and conspiracy which was essential to convict theAppellant. However, where the firing had taken place and there wereeye witnesses to the firing, it was not necessary to establish a motive.At the cost of repetition it is reiterated that both the Appellant and thefirst accused were identified by the eye witnesses to the firing, being thecomplainant (PW-8) and the Appellant.

52. The prosecution may not have been able to prove the greaterconspiracy of targeting the prominent leaders of the Hindu community.The inability of the Prosecution to establish greater conspiracy led to theacquittal of the third accused. It is well settled the minor discrepanciesin the evidence does not vitiate a conviction. The discrepancy if any inthe timing is insignificant. PW-8 in his cross-examination stated that theincident took place between 4.45 to 5.00. p.m. on 3.12.2002. The victimhas said the incident occurred at around 4.45. p.m. They both stated thatthe incident took place near Galaxy Cinema.

53. In course of the trial, the Trial Court has considered theevidence on record at length. It is reiterated that the eye witnesses tothe crime being the victim and the driver of his car, the complainantconfidently identified the Appellant and first accused and they could notbe shaken in cross-examination. PW-10 testified to the recovery of 2 (2003) 5 SCC 499 Para 9-12

3 (2002) 8 SCC 45 para 18

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Aoffence in his presence, at the instance of the Appellant and also identifiedthe Appellant in Court. Considering the gravity of offence and theseriousness of the injury and the manner in which the victim was shot,there can hardly be any doubt that the attempt was to murder the victim.The High Court confirmed the judgment and order of conviction butenhanced sentence under Section 307 read with 114 of the Indian PenalBCode to seven years instead of six.

54. The Trial Court after considering the evidence on record andafter hearing the Prosecution, the Appellant and the other accused foundthat the third accused was not present at the place of occurrence andthere was no evidence to establish that he was part of any conspiracy.CThe third accused was accordingly acquitted. The Sessions Court,however, found the Appellant and first accused guilty and convictedthem of offences punishable under Section 307 read with Section 114 ofthe Indian Penal Code read with Section 25(1)(B)(a) of the Arms Actread with Section 135(1) of the Bombay Police Act for having committedDthe offence of aiding and abetting each other in targeting and attemptingto murder the victim.

55. The Sessions Court sentenced the Appellant to undergorigorous imprisonment for 6 years for offence under Section 307 readwith Section 114 of the Indian Penal Code, rigorous imprisonment for 3Eyears for offence punishable under Section 25(1)(B)(a) of the Arms Actand rigorous imprisonment for 6 months for violation of Section 135(1)of the Bombay Police Act. The sentences were to run concurrently andthe time spent by the Appellant in judicial custody was ordered to be setaside while computing the total period of sentence.F56. The Trial Court, in effect, found:

(i) It had been established beyond any iota of doubt that thevictim had sustained bullet injuries. It had also been provedthat the incident had taken place and in the manner alleged.

(ii) The contention of the defence that the injuries were not soGlife threatening or grave or serious as to attract Section 307of the Indian Penal code was not acceptable, consideringthe testimony of three Medical experts who deposed withregard to the gravity and seriousness of the injury.

(iii) The evidence of the FSL (Forensic Science Laboratory)HExpert, Mukesh N. Joshi coupled with Exhibit 92 established that an offence attracting the provisions of Section 307 ofthe Indian Penal Code had taken place.

(iv) The recovery of the weapon in terms of Panchnama (Exhibit88) was proved beyond reasonable doubt.

(v) Minor irregularities on the part of the investigation and, inparticular, the casual manner in which the InvestigatingOfficer (PW-14) testified would not vitiate the case of theProsecution.

(vi) The Appellant as also first accused were duly identifiedboth by the complainant (PW-8) and the victim (PW-12) incourse of identification parade held on 1[st] and 3[rd] January2003 and they were also identified in Court. The mere factthat the Identification Parades were held on different dateswould not render the identification unreliable.

(vii) Both the eye-witnesses had identified the Appellant andthe first accused as being the persons who were on themotorcycle. The motor cycle was driven by the Appellantand the first accused was the pillion rider. Both the eye-witnesses had seen the pillion rider, that is, the first accusedhandling the weapon. The victim clearly deposed that thefirst accused had fired at the victim at point blank range.The said witnesses remained unshaken despite extensivecross-examination.

(viii) The concerned Executive Magistrate who conducted theidentification parade (PW-11) corroborated the evidenceof PW-12 and PW-8 with regard to the identification andhe also could not be shaken despite extensive cross-examination.

(ix) The Panchnama being Exhibit-88 relating to recovery ofthe weapon was duly proved by the oral testimony ofPradeep Mohanbhai Patel (PW-10) who had also identifiedthe Appellant.

(x) The Prosecution had established from the ballistic reportbeing Exhibit-92, and the evidence of FSL experts that thebullet that was extracted from the body of the victim, hadbeen fired from the weapon recovered on the confessionof the Appellant.

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A57. The sessions Judge, in our considered opinion, correctly foundthat notwithstanding minor discrepancies, the Prosecution hadsuccessfully established the chain of events, linking the crime to interalia the Appellant.

58. In this appeal, we are not concerned with the conviction ofBthe first accused. The involvement of the Appellant in the offences allegedhas, in our opinion, duly been established inter alia by the injury of thevictim; extraction of bullet from the body of the victim; linking of thebullet to the weapon recovered on the confession of the Appellant uponForensic examination; the evidence of two eye-witnesses to the crime,namely the complainant (PW-8) and victim (PW-12); Identification byCthe complainant and the victim of the Appellant in the IdentificationParades as also in Court; Identification by the Pancha witness (PW-10)of the Appellant as the person at whose instance the weapon of offencewas recovered.

59. The finding of the Sessions Court that the Prosecution had notDbeen able to establish the involvement of the third accused, or to establishthat the Appellant and the first accused were part of a conspiracy, whichhad targeted prominent leaders of the Hindu community did not, in ourview, warrant interference. In our view, the High Court rightly dismissedthe Criminal Appeal No.1145 of 2006, and allowed Criminal AppealENo.567 of 2006 filed by the Respondent State, only to the extent ofenhancing the sentence of imprisonment inter alia of the Appellant to 7years under Section 307 read with Section 114 of the Indian Penal Code,considering the gravity and seriousness of the offence.

60. For the reasons discussed above, we dismiss this Appeal andFaffirm the conviction of the Appellant and the sentence imposed uponthe Appellant as enhanced by the High Court.

Ankit Gyan

Appeals dismissed.

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