Criminal Law; Saddik @ Lalo Gulam Hussein Shaikh Vs. State of Gujarat [Supreme Court of India, 03-10-2016]

Penal Code, 1860 – Ss. 143, 147, 148, 149, 302, 323 & 504 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Ss. 3 (1) (10) & 3 (2) (5) – Accused No.1 had arrived at the scene of occurrence with nine armed men out of which three were equipped with knives and the rest were equipped with sticks. Sufficient amount of time had elapsed between the initial altercation at the restaurant of Accused No.1 and the subsequent arrival of the accused persons at the spot of the crime. Moreover, it was also established from the evidence on record that Accused No.1 had inflicted knife injury of such a nature, upon the unarmed deceased, that was sufficient in the ordinary course of nature to cause death. Hence, not inclined to grant the benefit of this Exception clause to Accused No.1 in the present case. Thus, the present appeals are devoid of merits, and find no ground to interfere with the judgment passed by the High Court. The appeals are, accordingly, dismissed.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Pinaki Chandra Ghose) and (Amitava Roy) JJ.

October 03, 2016

CRIMINAL APPEAL NOS.1999-2000 OF 2010

SADDIK @ LALO GULAM HUSSEIN SHAIKH & ORS. APPELLANT(S)

:VERSUS:

STATE OF GUJARAT RESPONDENT(S)

JUDGMENT

Pinaki Chandra Ghose, J.

1. These appeals by special leave, have been directed against the judgment and order dated 24.10.2008 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal Nos. 117 of 2007 and 2274 of 2006 respectively, whereby the High Court dismissed the criminal appeals filed by the appellants herein and confirmed their conviction and sentence for various offences punishable under

Section 302 read with Sections 143, 147, 148, 323 of the Indian Penal Code, 1860

[hereinafter referred to as “IPC”].

2. The brief facts necessary to dispose of these appeals are that on 04.03.2005 at about 8:00 p.m., one Rajubhai Jesingbhai Vasava(PW1), along with Rajubhai Ramubhai Vasava (deceased), Rakeshkumar Manharbhai Patel (PW2) and Prajeshkumar Ishwarbhai Patel (PW3), four persons, had gone to Amboli Cross-road, on two motorcycles, from the house of Rakeshbhai Tailor at Kholwad, for eating Biryani and after reaching at the Lari of Saddik @ Lalbhai Gulam Hussain Shaikh of Village Kathor (Accused No.1), they ordered four plates of Biriyani. But they were served only three plates of Biriyani with chicken pieces and one plate of Biriyani without chicken pieces. When Accused No.1 insisted on payment for four plates of Biriyani, there was a hot altercation between Rajubhai Ramubhai Vasava and other prosecution witnesses, on the one hand and Accused No.1 i.e. Saddikbhai @ Lalbhai Gulam Hussain Shaikh, on the other. Thereafter, they had to pay money for four plates of Biriyani and all this while Accused No.1 was abusing PW1 and other prosecution witnesses and had also drawn out a knife. However, PW3 intervened and separated PW1 and other prosecution witnesses and Accused No.1.

3. Thereafter, when PW1 and other prosecution witnesses were travelling to Village Kholwad on two motorcycles, they met one Kishorbhai Kantibhai Dholia (PW5) who happened to be the uncle of PW1 and narrated the whole incident before him who assured that he would settle the dispute since he was well-acquainted with Accused No.1. Thereafter, while PW5 had gone to fill petrol in his motorcycle, the accused persons came in auto rickshaws to the spot where PW1 and other prosecution witnesses were waiting for the return of PW5 and according to the statement of the complainant (PW1) in the FIR, Accused Nos. 1, 2 and 3 caused knife injuries to the deceased Rajubhai Ramubhai Vasava while other accused persons started beating the complainant and other prosecution witnesses with sticks.

4. Thereafter, the complainant, PW2 and PW3 had to flee to save themselves and when they arrived at the house of PW1, they recounted the entire incident to his father Jesingbhai Chhaganbhai Vasava (PW14) who immediately rushed to the scene of occurrence in the car of one Shri Aminbhai and carried the severely injured Rajubhai to Dinbandhu Hospital wherefrom he was shifted to Mahavir Hospital where he expired.

5. The law was set into motion upon lodging of FIR by PW1 (complainant) on 04.03.2005 at 11.55 p.m., at Kamrej Police Station. The FIR was registered as C.R.No. I-30 of 2005. The postmortem of the deceased was performed by Dr. Pranav Vinodchandra Prajapati (PW15). Looking to the postmortem note, marked Exh. 67, there were injuries on chest, stomach and intestine by knives.

6. Upon completion of investigation, charge sheet under

Sections 143, 147, 148, 149, 302, 323 and 504 of the IPC and Sections 3(1)(10) and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

was filed on 26.04.2005 in the Court of Judicial Magistrate, First Class, Kathor. However, the case being exclusively triable by the Court of Sessions, Surat, the same was committed to the Hon’ble Sessions Court under Section 209 of the Cr.P.C. Accordingly, a Special Atrocity Case No.6 of 2005 was registered against the accused. Thereafter, upon the case being transferred to the Court of Additional Sessions Judge, 2nd Fast Track Court, Surat City, Surat, charges were framed against the accused persons vide Exh.8, for the offences punishable under Sections 143, 147, 148, 149, 302, 323, 504 of IPC and under Sections 3(1)(10) and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After they denied the said charges, the evidence of prosecution witnesses was recorded.

7. Upon recording the evidence of the prosecution witnesses and after considering all the relevant facts, the Trial court vide its judgment and order dated 16.11.2006 convicted the accused persons, mainly for the offence punishable under Section 302 read with Sections 143, 147, 148, 323 of the IPC and sentenced them to rigorous imprisonment for life and to pay a fine of Rs. 1,000/- and in case of default, to undergo further simple imprisonment for six months. The accused persons were acquitted of the offences punishable under section 504 of IPC and Sections 3(1)(10) and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Being aggrieved by the aforesaid judgment and order of the Trial Court, the accused persons filed appeals before the High Court. While Accused No. 5 preferred Criminal Appeal No. 2000 of 2010, Criminal Appeal No. 1999 of 2010 was preferred by original Accused Nos. 1 to 4, 6 and 7.

8. The High Court vide its judgment and order dated 24.10.2008, dismissed the aforesaid appeals filed by the accused persons and confirmed the judgment of conviction passed by the Trial court. Aggrieved by the aforesaid judgment and order passed by the High Court, the accused persons have sought to challenge the same before us in these appeals.

9. We have heard the learned counsel appearing for the accused appellants as also the learned counsel appearing for the respondents and have perused the oral and documentary evidence on record.

10. The principles for the exercise of jurisdiction in a petition under Article 136 of the Constitution of India have been succinctly summarized by a two-judge Bench of this Court in