1. Attempt to murder — Aiding and abetting — Conviction under Section 307 read with Section 114 IPC, Section 25(1)(B)(a) Arms Act, and Section 135(1) Bombay Police Act. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 )
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2020 Supreme(SC) 414
SUPREME COURT OF INDIA
R. Banumathi, Indira Banerjee, JJ.
Mustak @ Kanio Ahmed Shaikh – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal Nos. 488-489 of 2017
Decided on : 18-06-2020
Important Points
IMPORTANT POINT
Evidence of witnesses have to be read as a whole – Words and sentences cannot be truncated and read in isolation.
Evidence of witnesses have to be read as a whole – Words and sentences cannot be truncated and read in isolation.
Subject
Criminal Law - Attempt to Murder
Act Referred
Headnote
Indian Penal Code, 1860 – Section 307 read with Section 114 – Arms Act, 1959 – Section 25(1)(B)(a) – Bombay Police Act, 1951 – Section 135(1) – Attempt to murder and abetment – Conviction and sentence – Evidence of witnesses have to be read as a whole – Words and sentences cannot be truncated and read in isolation – Witness has categorically stated that he would be able to identify and actually identified driver of motor cycle as Appellant – Judicial Magistrate has corroborated identification of Appellant by complainant in Test Identification Parade – Appellant was duly identified by eye-witnesses – Defence has not been able to show any such infirmity in Identification Parade of Appellant which vitiates Identification – Judicial Magistrate deposed truthfully and did not try to cover up any loopholes or lacunae – Identity of Appellant has been proved beyond reasonable doubt, by eye-witnesses to crime as well as Panch witness – It may be true that conviction based on erroneous identification and a faulty Test Identification Parade cannot be sustained – When there is a time gap between an occurrence and trial it is impossible for police/Investigating Officer to recall minute details – Nor is it possible for a Surgeon performing an operation to remove a bullet from body of a patient to throw light on chain of custody of bullet, after it was made over to attending Nurse – There was sufficient incriminating evidence for conviction of Appellant – Minor discrepancies in evidence and inability to recall details of description of houses, roads and streets after several years, do not vitiate evidence of recovery itself – Appellant showed police spot where weapons had been hidden under sand – Prosecution may not have been able to prove greater conspiracy of targeting prominent leaders of Hindu community – Inability of Prosecution to establish greater conspiracy led to acquittal of third accused – Minor discrepancies in evidence does not vitiate conviction – Notwithstanding minor discrepancies, Prosecution had successfully established chain of events, linking crime to Appellant – Appeal dismissed. (Paras 33, 35, 36, 41, 45, 48, 52, 57, 59 and 60)
Facts of the case:
Sessions Judge had, by his judgment and order convicted Appellant and first accused, of offence punishable under Section 307 read with Section 114 of the Indian Penal Code and Section 25(1)(B)(a) of Arms Act read with Section 135 (1) of the Bombay Police Act for targeting and attempting to murder he victim, by aiding and abetting each other. The third accused was acquitted of all the charges levelled against him.
Findings of the Court:
It is reiterated that the eye witnesses to the crime being the victim and the driver of his car, complainant confidently identified the Appellant and first accused and they could not be shaken in cross-examination. PW-10 testified to the recovery of offence in his presence, at the instance of the Appellant and also identified the Appellant in Court. Considering the gravity of offence and the seriousness 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.
Result : Appeal dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates Appeared:
For the Appellant :Meenakshi Arora, Mohit D. Ram, Advocates
For the Respondent:Hemantika Wahi, Advocate
For the Appellant :Meenakshi Arora, Mohit D. Ram, Advocates
For the Respondent:Hemantika Wahi, Advocate
Table of Contents
2. Challenge to conviction based on faulty identification parade, lack of bullet chain of custody, unreliable weapon recovery from open ground, and failure to prove motive. (Para 29 , 31 , 32 , 34 , 42 , 43 , 44 , 46 , 47 , 49 , 51 )
3. Identification by injured victim and complainant is reliable; minor investigative irregularities and chain of custody gaps do not vitiate conviction when supported by forensic evidence and eye-witnesses. (Para 30 , 33 , 35 , 36 , 38 , 39 , 40 , 41 , 45 , 48 , 50 , 52 , 53 , 56 , 57 , 58 )
4. Testimony of an injured victim is sufficient for conviction; minor discrepancies in investigation do not negate a case established by positive identification and forensic recovery. (Para 30 , 41 , 45 , 52 )
5. Appeal dismissed — Conviction affirmed — Sentence of seven years rigorous imprisonment under Section 307 read with Section 114 IPC upheld. (Para 59 , 60 )
6. Does a Test Identification Parade (TIP) conducted without veils or with minor procedural gaps vitiate the identification of the accused?
No, if the accused is positively identified by eye-witnesses in the TIP and subsequently in court, and the magistrate's testimony confirms the process, minor procedural infirmities do not necessarily vitiate the identification. (Para 33 , 34 , 35 , 36 , 41 )
7. What is the evidentiary value of the testimony of an injured victim in a criminal trial?
The testimony of an injured victim is considered highly reliable and is sufficient to sustain a conviction, especially when corroborated by other evidence or identification. (Para 30 , 41 )
8. Does a failure to strictly establish the chain of custody for a recovered bullet negate a conviction for attempt to murder?
Not necessarily. Minor irregularities in the mode of handing over evidence or the inability of witnesses to recall minute details after a significant time gap do not undermine the prosecution's version if other incriminating evidence exists. (Para 42 , 43 , 44 , 45 )
9. Is the recovery of a weapon from an open ground accessible to the public inadmissible or unreliable?
Recovery is valid if the weapon was hidden, such as being buried under sand, and recovered at the instance of the accused, providing positive corroboration to the prosecution's case. (Para 46 , 47 , 48 , 50 )
10. Is it mandatory for the prosecution to prove motive and conspiracy to secure a conviction for attempt to murder?
No. Where there are eye-witnesses to the crime who positively identify the accused, it is not necessary to establish a motive or a broader conspiracy. (Para 51 , 52 )
JUDGMENT
Indira Banerjee, J.
This appeal is against a common judgment and order dated 29th September 2015 passed by a Division Bench of the High Court of Gujarat at Ahmedabad, dismissing Criminal Appeal No.1145 of 2006, filed by the Appellant, partly allowing Criminal Appeal No.567 of 2006, filed by Respondent State, affirming the judgment and order of conviction dated 18th January 2006, passed by Additional City Sessions Judge (Court No.6) at Ahmedabad City in Sessions Case No.245 of 2004, but enhancing the sentence of rigorous imprisonment from six to seven years, for offence under Section 307 of the Indian Penal Code.
2. The learned Sessions Judge had, by his aforesaid judgment and order convicted the Appellant and one Salim alias Salim Chaurala Yakubhai Patel, hereinafter referred to as the first accused, of offence punishable under Section 307 read with Section 114 of the Indian Penal Code and Section 25(1)(B)(a) of the Arms Act read with Section 135 (1) of the BOMBAY POLICE ACT for targeting and attempting to murder one Dr. Jaydeep Patel, hereinafter referred to as the victim, by aiding and abetting each other. The third accused, Abhasbeg Habibbeg Mirza, was acquitted of all the charges levelled against him.
3. The learned Sessions Judge sentenced the Appellant and the first accused to undergo rigorous imprisonment for six years for offence under Section 307 read with Section 114 of the Indian penal Code, rigorous imprisonment for three years for offence under Section 25(1)(B)(a) of the Arms Act and rigorous imprisonment of six months for violation of Section 135(1) of the BOMBAY POLICE ACT , to run concurrently. By the judgment and order under appeal, the High Court has inter alia confirmed the judgment and order of conviction of the appellant and the first accused, passed by the Session Judge, but enhanced the sentence of imprisonment for offence under Sections 307/114 of the IPC to seven years instead of six.
4. It is the case of the Prosecution that the victim, who was going to his laboratory from his residence at around 4.45 p.m. on 3.12.2002, in his Indica Car bearing the Registration No. GJI HE 1575, driven by his driver Jignesh G. Vyas, being the complainant, was shot near the Galaxy Cinema, from a pistol fired by the first accused, from a motorbike, driven by 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 stopped the motorbike beside the victims car, on the side the victim was sitting, and the first accused took out a pistol and fired at the victim, after which the Appellant and the first accused fled the scene of occurrence. The bullet pierced the glass window and hit the victim on his face.
6. It appears that, after the victim was shot, he instructed the complainant to take him to the Hospital of Dr. Pareshbhai, which was nearby. However as Dr. Pareshbhai was not available, the victim was taken 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, the victim was rushed to Sterling Hospital. In the meanwhile, the complainant filed a complaint under Section 157 of the Criminal Procedure Code with the police who had rushed to the Anand Surgical Hospital on getting information of the incident. The complaint was forwarded to Naroda Police Station and registered as ICR 530/02.
7. Thereafter, the police took up investigation, examined the complainant, went to the place of occurrence, seized articles such as pieces of broken glass etc. Later, the clothes worn by the victim when he was shot, the mats of the car and a cover kept on the rear seat of the car, described as carpet which contained human blood etc., and other articles found inside the car were also seized. After the bullet was operated and removed and the victim was in a
