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SUPREME COURT OF INDIA
B.R. GAVAI, SANDEEP MEHTA, JJ.
Allarakha Habib Memon Etc. – Appellants
Versus
State of Gujarat – Respondents
Criminal Appeal No(s). 2828-2829 of 2023 With Criminal Appeal No(s). 112 of 2024
Decided On : 08-08-2024
(A) Indian Penal Code, 1860 – Section 302 read with Section 120B [Bharatiya Nyaya Sanhita, 2023 – Section 103(1) read with Section 61(2)] – Murder and criminal conspiracy – Life sentence – There is a huge cloud of suspicion on very threshold of prosecution case regarding time and manner of lodging of FIR – Identification of accused by Police Constable for first time in the dock is totally unbelievable and unacceptable – First informant seems to have abandoned his own cousin brother who was lying on road in gravely injured condition creating further doubt on his very presence at the spot when incident occurred – Circumstance regarding identification of place of incident at instance of accused is also inadmissible because crime scene was already known to police and no new fact was discovered in pursuance of disclosure statements – No credence can be given to seizure Panchanama because it suffers from lacuna of not being attested by witness who had actually presented weapons at police station – Even presuming that FSL reports conclude that blood group found on weapons recovered at instance of accused matched with blood group of deceased, this circumstance in isolation, cannot be considered sufficient so as to link accused with crime – Neither disclosure statements made by accused were proved as per law nor same resulted into any discovery which could be accepted as incriminating inasmuch as requisite link evidence was never presented by prosecution so as to establish that recovered articles remained in self-safe condition from date of seizure till the same reached FSL – Prosecution has failed to lead convincing evidence establishing guilt of accused appellants beyond all manner of doubt – Accused appellants acquitted of charges. (Paras 22, 23, 33, 41, 42, 43, 46, 48 and 50)
(B) Constitution of India – Article 136 – Appeal by Special Leave – By and large, Apex Court while exercising jurisdiction under Article 136 of Constitution of India will not interfere with concurrent findings recorded by courts below – But where evidence has not been properly appreciated, material aspects have been ignored and findings are perverse, Apex Court would certainly interfere with findings of courts below though concurrent. (Para 47)
Facts of the case:
Trial Court had convicted appellants for offence punishable under Section 302 read with Section 120B of Indian Penal Code, 1860 and sentenced them to imprisonment for life with fine of Rs. 1,000/- each, in default whereof, to undergo rigorous imprisonment for a period of three months. At the same time, appellants were acquitted of charge for offence punishable under Section 323 IPC. Vide impugned Judgment appeal filed by appellants was dismissed by High Court.
Findings of Court:
Impugned judgments dated 13th October, 2014 and 18th February, 2019 passed by trial Court and High Court, respectively are hereby quashed and set aside.
Result : Appeals allowed.
JUDGMENT
Mehta, J.
1. Heard.
2. The instant criminal appeals have been filed by the appellants namely, Allarakha Habib Memon, Amin @ Lalo Aarifbhai Memon and Mohmedfaruk @ Palak Safibhai Memon, for assailing the common judgment dated 18th February, 2019, passed by the Division Bench of High Court of Gujarat at Ahmedabad dismissing the Criminal Appeal Nos. 94 of 2015, 450 of 2015 and 563 of 2015, preferred by the accused appellants and affirming the judgment and order dated 13th October, 2014 passed by the Court of Additional Sessions Judge, Anand, in Sessions Case No. 84 of 2011(hereinafter being referred to as ‘trial Court’). The trial Court had convicted the appellants for offence punishable under Section 302 read with Section 120B of the Indian Penal Code, 1860(hereinafter, referred to as ‘IPC’) and sentenced them to imprisonment for life with fine of Rs. 1,000/- each, in default whereof, to undergo rigorous imprisonment for a period of three months. At the same time, the appellants were acquitted of the charge for the offence punishable under Section 323 IPC.
Brief facts: -
3. The accused appellants are the residents of New Memon Colony, Bhalej Road, Anand. There was some issue regarding the supply of water in the residential blocks where the accused Mohmedfaruk @ Palak was residing. On 3rd May 2011, a meeting was convened in this regard wherein, an altercation flared up between the accused Mohmedfaruk @ Palak and Mohammad Sohail. It is alleged that Mohmedfaruk @ Palak hurled abuses and used foul language against Mohammad Sohail, who in turn intimated the society members that he may be relieved from the duty of supplying water in the society. A meeting with respect to the intimation given by Mohammad Sohail was convened by the members of the society, wherein Mohammad Sohail insulted accused Mohmedfaruk @ Palak, who started carrying a grudge against Mohammad Sohail on this account. Resultantly, Mohmedfaruk @ Palak conspired with the accused Amin @ Lalo Aarifbhai Memon and Allarakha Habib Memon and hatched a plan to eliminate Mohammad Sohail. As per the prosecution, acting in furtherance of the above conspiracy, Mohmedfaruk @ Palak collected arms like gupti, daggers etc., and concealed the same in the dicky of his scooter. On 4th May, 2011 at around 8:00 pm, Mohammad Sohail, along with his first cousin namely, Mohammad Arif Memon(the first informant), had proceeded to Shah petrol pump on a two wheeler, where they got the vehicle refuelled, and then both proceeded towards their residence, by taking a turn towards Bhalej overbridge. On the way, the accused Mohmedfaruk @ Palak stopped them on the pretext of asking mobile number of one Mohammad Hussain. Taking advantage of the situation, the accused appellants launched an indiscriminate assault upon Mohammad Sohail with sharp edged weapons, causing injuries on his head and chest regions. Mohammad Arif Memon tried to intervene, upon which he was given a push by Mohmedfaruk @ Palak and fell down. Mohmedfaruk @ Palak took out a big knife and inflicted a blow with a sharp weapon on the back of Mohammad Sohail. Upon hearing the noise of the commotion, people from nearby gathered at the place of occurrence whereupon the accused appellants fled away, abandoning their weapons at the crime scene. Mohammad Sohail having been severely injured was shifted to a hospital, where he was declared dead.
4. Incorporating the above allegations, the first informant Mohammad Arif Memon(PW-11), first cousin of Mohammed Sohail(deceased) lodged a complaint(Exhibit P-79) being CR No. 141 of 2011 on 4th May, 2011 which came to be registered as FIR at Anand Town Police Station for the offences punishable under Sections 302 and 323 IPC read with Section 120B IPC. The investigation of the case was assigned to Dhananjaysinh Surendrasinh Waghela, Police Inspector(PW-18) (hereinafter being referred to as ‘Investigating Officer’).
5. Inquest panchnama(Exhibit P-25) was prepared and the dead body of Mohammad Sohail was
Murder – Sole circumstance of recovery of bloodstained weapon cannot form basis of conviction unless same was connected with murder of deceased by accused.
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The conviction for murder was upheld based on eyewitness accounts and circumstantial evidence linking the appellants to the crime, affirming that minor inconsistencies in evidence do not undermine th....
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