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2007 Supreme(Guj) 516
Gujarat High Court
Judgename :A.M.KAPADIA, MS.H.N.DEVANI
STATE OF GUJARAT - Appellant
Versus
SHAHNAWAZ ABDULGAFUR BHATTI - Respondent
Criminal Appeal 2317 Of 2005
Decided On : 08/29/2007
Headnote:
Code of Criminal Procedure 366, 374 (2) Indian Penal code -Sections 120b, 121 A, 122 and 123, 124a 121 - Explosive Substances Act, 1980 - Rules 3 and 6 - Foreigners Act, Sections 4 (b), 5 -Arms Act - Sections 13 (2) and 14 - Criminal Confirmation Case - allegations made in the complaint lodged, ASI rajpal Hardwarila , Head constable, Armed police Constables and other police personnel of Outpost were patrolling in the Dargah area. Meanwhile,. , one Ramzan pirmamad came and informed the staff of Hajipir Outpost that a suspicious individual was there in the Baval bushes near Mubarak Pir s Dargah. Thereupon they went to the Baval bushes shown by him and found the suspicious looking individual and upon inquiring about his name and whereabouts, he informed that his name was Mazzamil Hussain Abdul Gafur,. Upon conducting physical search of the individual, Indian currency in the sum of Rs. 20. 000/- consisting of 34 notes of Rs. 500/-denomination and 30 notes of rs. 100/- denomination, one wet chit bearing numbers in English and one live cartridge were found in his possession. prosecution that, s. I. Naranayansingh and S. I. of G-Branch of the B. S. F. also arrived and joined in helping the police. As the said individual was found to be in possession of a cartridge hence upon it becoming certain that he must be having some weapon, the said pakistani citizen expressed his willingness to show the weapon, whereupon immediately two panchas, both residents, were called and in their presence the pakistani intruder took out one A. K. 56 rifle and its magazine which contained 28 live cartridges from the Baval bushes on the western side of Dargah. Possession of the a. K. 56 Rifle Body valued at rs. 1,50,000/- and the cartridges valued at rs. 560/- was taken by drawing a detailed panchnama –Held aforesaid discussion is that the conviction and sentence recorded against the accused for commission of the offences punishable under Sections 121 read with Section 120b and 124a IPC cannot be sustained and. therefore, it has to be quashed and set aside whereas the conviction recorded and sentence imposed by the Trial Court against the accused for commission of the offences punishable under Sections 121a, 122 and 123 IPC. Criminal appeal filed by the accused succeeds in part and accordingly it is partly allowed. Consequently, conviction recorded against the accused for commission of the offences punishable under Sections 121 read with section 120b IPC and sentence to death is quashed and set aside so also the conviction recorded against the accused for commission of offence punishable under section 124a IPC is quashed and set aside. Confirmation casa dismissed. Appeal of accused partly allowed – Appeal is Allowed
( 1 ) CRIMINAL Confirmation Case No. 7 of 2005 arises pursuant to submission of the proceedings of Sessions Case Nos. 11 of 2002 and 18 of 2003 made under Section 366 (1) of the Code of Criminal Procedure ( the Code for short) by the learned additional Sessions Judge (Fast Track court No. 2), District Kachchh at Bhuj, who. by his judgment and order dated 14. 10. 2005, has sentenced respondent -Shahnawaz Abdulgafur Bhatti, the accused of Sessions Case No. 18 of 2003, ( the accused for short) to death for commission of offence punishable under Section 121 read with Section 120b of the Indian Penal code ( ipc for short) whereas Criminal appeal No. 2317 of 2005 filed under section 374 (2) of the Code by the accused shahnawaz Abdulgafur Bhatti from the jail is also directed against the judgment and order dated 14. 10. 2005 rendered by the learned Additional Sessions Judge (Fast track Court No. 2) District Kachchh at bhuj, in Sessions Case No. 18 of 2003 by which the appellant/accused is convicted for commission of the offence punishable under Section 121 read with Sections 120b ipc, 121 A, 122 and 123 IPC, 124a IPC, section 25 (1) (d), 25 (1) (a), 25 (1aa) of the arms Act, Sections 13 (2) and 14 of the foreigners Act, Sections 4 (b), 5 and 6 of the Explosive Substances Act, 1980, Rules 3 and 6 of the Indian Passport Rules. 1959 (Entry into India) Paragraph 3 of the criminal Law Amendment 1961, Paragraph 3 of the Indian Foreigners (Report to police) Orders, 1971 and Sections 3 and 6 (1) of the Indian Wireless and Telegraphs Act, 1933.
Sr. 1. For the aforesaid offences, the accused is visited with the following punishments: Sections Sentence imposed
No. 1. Section 121 read with Section 120b IPC Death sentence 2. Section 121 A IPC RI for life and fine of Rs. 250/- i. d. , RI for 3 months 3. Sections 122 and 123 IPC RI for 10 years and fine of Rs. 250/- i. d. , RI for 3 months 4. Section 124a IPC RI for 3 years and fine of Rs. 250/-i. d. , RI for 3 months 5. Sections 25 (1) (d), 25 (1) (a), 25 (1aa) of the Arms Act 6. Sections 13 (2) and 14 of the Foreigners Act 7. Sections 4 (b), 5 and 6 of the Explosive Substances Act, 1980 RI for 7 years and fine of Rs. 250/-i. d. , RI for 3 months RI for 7 years and fine of Rs. 100/-i. d. , RI for 1 month RI for 10 years and fine of Rs. 250/- i. d. , RI for 3 months 8. Rules 3 and 6 of the Indian Passport Rules, 1959 (Entry into India ) 9. Paragraph 3 of the Criminal Law Amendment 1961, Paragraph 3 of the Indian Foreigners (Report to Police) Orders, 1971 and Sections 3 and 6 (1) of the Indian Wireless and Telegraphs Act, 1933
RI for 1 year and fine of Rs. 100/-i. d. , RI for 1 month No separate sentence
( 2 ) AS Criminal Confirmation Case and criminal Appeal arise out of the common judgment and order dated 14. 10. 2005 rendered in Sessions Case Nos. 11 of 2002 and 18 of 2003 by the learned Additional sessions Judge (Fast Track Court No. 2), district Kachchh at Bhuj ( the Trial Court for short), this Court proposes to hear the reference for confirmation of sentence of death and the appeal preferred by the accused together and to deal with the merits of the case against the accused in the light of all the material questions of law as well as facts, and to adjudicate upon the guilt of the accused and appropriateness of sentence of death by this common judgment.
( 3 ) THE facts emerging from the record of the case, more particularly, as disclosed in fir and unfolded during trial are as under:
1. As per the allegations made in the complaint lodged by Gulabsinh Amarsinh parmar, on 27. 7. 2001, at 07. 00 hours, ASI rajpal Hardwarilal, B. No. 1292, Head constable, Mulbharthi Prembharthi, Armed police Constables, Lakhmanram thakraram, Prithvisinh Mulvaji, bhagwanbhai Ranchhodbhai and other police personnel of Hajipir Outpost were patrolling in the Hajipir Dargah area. Meanwhile, at 9. 30 a. m. , one Ramzan pirmamad of Hajipir came and informed the staff of Hajipir Outpost that a suspicious
