1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.488-489 OF 2017

Mustak @ Kanio Ahmed Shaikh …Appellant

versus

State of Gujarat ….Respondent

J U D G M E N T

Indira Banerjee, J.

This appeal is against a common judgment and order dated

29

th

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 18

th

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

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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.

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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 victim’s 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

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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 position to be examined the Investigating Officer recorded

his statement. The first accused and the 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 that of the

Appellant, arrayed the second accused on 4.1.2003. While the

accused were in custody, the weapon used for the offence was

recovered by the police on the confession of the Appellant, from

the place shown by the Appellant.

8. Three weapons- a country made pistol, a pistol apparently

made in England and another pistol apparently made in China,

were recovered from underneath the earth in an open ground near

the Shahalam Dargah, described in the Panchnama under which

they were seized. The weapons were sent to the Forensic Science

Laboratory for analysis and test as also the bullet recovered from

the body of the injured.

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9. The prosecution has alleged that the victim was targeted as

a sequel to the communal riots in Ahmedabad after the Godhra

incident, which had taken place in February 2002. The accused

had entered into a conspiracy to target and finish off prominent

members of the religious community, to which the victim

belonged. The accused persons accordingly started monitoring

the movements of the victim, a prominent member of a religious

organization and its Secretary at the time of the riots, who ran a

pathological laboratory.

10. After the investigation was completed, charges were framed

against the first accused, the appellant, arrayed as the second

accused, and one Abhasbeg Habibeg Mirza arrayed as the third

accused and the case was committed to the Sessions Court and

registered as Sessions Case No.245 of 2004.

11.To substantiate its case, the prosecution examined following

14 witness including the complainant and the victim, who were

eye witnesses:-

1. Haribhai Jethabhai

2. Jaimini P Patel

3. Mahesh Ravjibhai Patel

4. Punambhai Ranchodbhai Patel

5. Dr. Narendra P Sanghvi

6. Devang M Parikh

7. Pareshkumar P Jethwal

8. Jignesh G. Vyas

9. Dr. Anil Bansal

10.Pradip Mohanbhai Patel

11.Mohmedyunus A Mansuri

12. Dr. Jaydeep A Patel

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13.Dr. Shreekant Prabhakar

14.Gagabhai L khunti

12.The Prosecution also relied upon the documentary evidence

such as, the complaint filed by the complainant, medical

reports/certificates of the victim, Panchnama prepared at the

scene of occurrence, Panchnamas relating to recovery of articles,

clothing etc. Panchnamas relating to identification of the first

accused and the Appellant (second accused), Panchnamas relating

to recovery of weapons on the basis of the statement of the

Appellant and the bullet extracted from the body of the victim,

Forensic Science Laboratory Reports, the Lie Detection Analysis

Report etc.

13.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 laboratory from his home, in his car being a Tata

Indica car, with Registration Number GJI HE 1575, which was being

driven by the complainant being his driver. The victim deposed

that he was seated at the back, on the left side of the car. When

the car was passing by the Galaxy Cinema, it slowed down at a

speed breaker. As the car negotiated the speed breaker, there was

a noise from the left which the victim, later in cross examination,

explained as the sound of an approaching motorbike. On hearing

the noise, the victim turned in the direction of the motorbike,

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which was by the side of the car, and saw that there were two

persons on the motor cycle. The pillion rider had a weapon, which

looked like a pistol, in his hand. The pillion rider opened fire. The

victim was hit by the bullet and he slumped to the right. He said

he was taken to the hospital of Dr. Pareshbhai which was near his

laboratory but the Doctor was not there. He then asked his driver

to take him to Anand Surgical Hospital. He was in severe pain.

They reached Anand Surgical Hospital and narrated the incident to

Dr. Narender Sangvi. Dr. Sanghvi started treatment, took an X-ray

and gave primary treatment but recommended that the victim

should be taken to a bigger hospital. Thereafter, the victim was

shifted to Sterling Hospital. The victim further deposed that after

examining diagnostic reports, the doctors of Sterling Hospital

decided to operate on the victim. The operation was performed on

4

th

December 2002 at the Sterling Hospital and the bullet was

removed. The victim remained admitted in Sterling Hospital for

about 8 days as an indoor patient, after which he was discharged

on 11

th

December 2002. He said that due to the injury, the bone

below his left eye was broken for which he had to undergo

treatment for about six months after his discharge from the

hospital. He said that the vision of his left eye had deteriorated

because of the injury.

14.In course of his examination, the victim asserted that he had

seen and could recognize both the Motorcyclists - the driver and

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the pillion rider, whom he had identified at the Test Identification

parade, and also in Court.

15.The complainant deposed as the eighth witness (PW-8). This

witness (PW-8) deposed that he had to slow down the car near

Galaxy Cinema as there was a speed breaker. At that time there

was a bike behind the car with two persons. The person in front

had dark glasses and 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 persons on the bike were

driving away towards Chandresh Nagar Society. The person sitting

on the pillion had a weapon that looked like pistol or a revolver,

which he put into the pocket of his jacket. When PW-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 the

hospital of Dr. Pareshbhai but the Doctor was not there. The victim

was therefore taken to Anand Surgical Hospital of Dr. Narender

Sanghvi, where the victim was given primary treatment. While

the treatment was going on, the police arrived and took his

complaint. This witness identified the complaint made by him and

stated that the police officer had also signed the complaint in his

presence. He confirmed that the facts stated in the complaint

were true.

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17.This witness also stated that in deference to the advice of Dr.

Narender Sanghvi that the victim should be taken to a better

equipped hospital, the victim was shifted to Sterling Hospital on

the same day. On the next day, the complainant showed the

police the place of occurrence. The police made investigations.

18.This witness (PW-8) stated that on 4

th

January 2003, the

police summoned him to Gheekanta Court. The Court peon made

this witness sit outside the Court for about 15 to 20 minutes after

which he was taken to the Court room before the Judge, and the

Judge asked him to identify the accused from out of six persons.

This witness identified the person driving the motorcycle. The

person identified by PW-3 stated that his name was Mustak @

Kanio. After the identification, the Judge asked the complainant to

go out.

19.In Court this witness again identified the said person whom

he had earlier identified during the identification parade and who

had stated that his name was Mustak @ Kanio. This witness also

identified the person driving the motor cycle, being the first

accused, in Court.

20.This witness said that on the left back door of the vehicle

there was a small glass with a steel strip fitted to it. The bullet

came from the said strip and the glass cracked. Pieces of glass

fell on the back seat. The board at the back where speakers had

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been kept, the back 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 of the incident.

21.This witness was cross-examined at length. He, however,

remained unshaken in cross-examination. He confidently deposed

that the motorcycle was a Yamaha motor cycle. Though he did not

know its number. He confirmed that he had identified the second

accused at the identification parade and he had identified both the

Appellant (second accused) and first accused (Salim) in Court, as

the Driver of the motorcycle and the pillion rider, who had opened

fire.

22.The recovery of the weapon with which the offence was

committed, on the confession of the appellant, from underneath

the ground from the place shown by the Appellant has been

proved by the oral evidence of the Pancha Witness, Pradip

Mohanbhai Patel who deposed as the tenth witness (PW-10). This

witness also identified the Appellant in Court, as the person at

whose instance three weapons were recovered by the police, in his

presence.

23.The Judicial Magistrate who conducted the Test Identification

Parade namely Mohmedyunus A. Mansuri, deposed as the eleventh

witness (PW-11). He corroborated identification of the Appellant by

the complainant and the victim at the Test Identification Parades

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conducted by him.

24.Three doctors have deposed in this case. Dr. Narendra P.

Sanghvi who deposed as PW-5 stated that he gave primary

treatment to the victim, conducted tests and recommended that

the victim be taken to a 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 Sterling Hospital at around

6:30 p.m. on 3

rd

December, 2002. He appeared to have been

injured by a bullet. This witness along with other Doctors had

physically examined the victim. It appeared that he had a wound

of one centimeter below the left eye but he was fully conscious

and his pulse, blood pressure etc. were normal. This witness

deposed that the victim was immediately shifted to the operation

theatre where he was operated upon and the bullet was taken out.

The victim was discharged from the hospital on 11

th

December

2002.

25.This witness also identified the certificate issued by the

hospital to the victim regarding his injuries and treatment. He said

that the certificate was issued in printed form but he identified his

hand writing and signature on the certificate. This witness

observed that the injuries sustained to the patient could be said to

be serious because bullet had entered the neck of the patient from

lower part of left eye.

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26.The 13

th

Prosecution Witness (PW-13), Dr. Srikant, a Surgeon

said that on 4

th

December 2002 he along with his team of Doctors

had performed surgery of the victim who had a bullet injury. The

bullet was lodged on the left side of the neck. This Doctor

described how the bullet had been taken out. This Doctor also

opined that the bullet was lodged in a vital part of the body.

27.From the depositions of the witnesses named above and the

documents relied upon, there can be no iota of doubt that the

victim was shot on 3

rd

December 2002 at around 4:45 p.m. near

the Galaxy Cinema while he was on his way from his home to his

pathological laboratory in his Indica Car driven by his driver, the

complainant. Both the complainant (PW-8) and the victim (PW-12)

have deposed that while the said car slowed down near Galaxy

Cinema to negotiate speed breaker a motor cycle which was

following the car pulled up to the left, the pillion rider pulled out

pistol and fired at the victim (PW-12) at point blank range and fled

away. Both the complainant and the victim have as eye witnesses,

identified the Appellant.

28.The Appellant did not examine any witness. After the 14

prosecution witnesses named above were examined the Appellant

was examined under Section 313 of the Criminal Procedure Code.

His defence was of total denial.

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29.Ms. Meenakshi Arora, learned senior counsel appearing on

behalf of the Appellant submitted that the Test Identification

Parade of the Appellant had been conducted contrary to the rules

of evidence and failed to establish the identity of the Appellant.

She argued that as per the case of the Prosecution, the only two

eye witnesses were the complainant (PW-8) and the victim (PW-

12). However, the Appellant who had been arrayed as the second

accused had only been identified by PW-8.

30.From the judgment and order of the Sessions Court, duly

affirmed by the High Court, it appears that the Appellant has been

identified by both the victim (PW-12) and the complainant (PW-8)

apart from the Pancha witness (PW-10) Be that as it may, the

testimony of an injured victim is sufficient for conviction.

31.To impress upon this Court that the complainant being the

driver of the car could not have recognized the Appellant, Ms.

Arora pointed out that the complainant had, in his complaint

stated “I saw then two persons were on the back behind my car,

out of them the person plying had put on black goggles and black

cap”. In his testimony in Court he said:-

“…….I saw back side from centre mirror. At that time

two persons were coming on bike after me, wherein the

person in front had put on black glasses and back cap”

(examination in chief)

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…...Thereafter on 4/1/2003 the police summoned me at

Gheekanta Court. I reached over there between 3.45 to

4.00 O’ clock evening. The peon made me seated

outside of court at the sitting place and I was again

called after about fifteen to twenty minutes. I was

taken in the Court room before the Judge and the Judge

over there asked me my name, address etc.

Thereafter asked me to identify the person I could

identify from six persons. That I had identified a

person standing third and fourth in the middle and

caught and dragged his hand. The Judge asked name

to this person and the person stated his name to be

Mustak alias Kanio. On completion of the procedure the

(Judge) asked me to go. (examination in chief)

“….. It is true that, I have never seen any of the person

seated on the motor cycle prior the incident. It is true

that I saw only back of person seated in back of the

motor cycle. Said motor cycle went away from the

place of incident at a speed of about forty to fifty

kilometer. It is true that, after the incident the motor

cycle went away on rough road turning by left back side

door of our car. Said motor cycle did not go from front

of our car but turned on left side back door of our car

and went away” (Cross-examination)

It is true that I saw the motor cyclist, heard the blast,

and the motor cyclists were turned towards Chandresh

Nagar, all this was happened just within blink of eye ….

It is true that at the very same time I saw the motor

cyclists turning towards Chandreshnagar. It is true that

the road on which our vehicle was, is very busy road. It

is not true that it was not the Yamaha Motor cycle but

was the motor cycle like Yamaha. The witness

empathetically states that, it was the Yamaha motor

cycle only. It is true that, on occurrence of incident I did

not come out from the car. For the first time I came out

form the car after reaching to hospital of Dr. Paresh

Shah, at that time Jaydipbhai was also taken out of

car….

15

It is true that especially about physical description of

the persons ride on motor cycle I only knew that they

could be twenty to twenty five years of age.

It is true that, none of the person in identification

parade were wore gape or glasses. It is true that, none

of the person from identification parade had subtle eye.

(cross-examination)

32.Referring to the evidence of the complainant, as extracted

above, as also the part of the complaint extracted above, Ms.

Arora emphatically argued that the complainant could not

possibly have identified the Appellant with certainty as the

Appellant had been wearing dark glasses 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 the motor cycle was

at a speed of 40-50 kilometers per hour and the motor cycle had

turned away within the blink of an eye, after the complainant

turned around on hearing the pistol shot.

33.With the greatest of respect, the evidence of the witnesses

have to be read as a whole. Words and sentences cannot be

truncated and read in isolation. The witness has categorically

stated that he would be able to identify and actually identified the

driver of the motor cycle as the Appellant. The PW-11 being the

Judicial Magistrate has corroborated identification of the Appellant

by the complainant in the Test Identification Parade.

34.Ms. Arora thereafter referred to Testimony of PW-11,

Mohmedyunus A Mansuri, the Judicial Magistrate who conducted

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the Test Identification Parade and in particular the following

portions:-

“The accused of this case was brought before me in

the court room at 16.30 hours on 2/1/2003, the name,

address was asked to the accused and same was verified,

they were made to sit in the court…..

…...Thereafter, called five dummy persons from

outside through my peon. In the meantime the

witnesses of the case had not come and my another

peon had informed about they came at 16.35

o’clock. (examination in chief)

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

the veil…..

…...It is true that, physical description of none of the

dummy are given in the panchnama. It is true that, in the

yadi exhibit-64 it has been mentioned that the accused is

aged about twenty to twenty five years. It is true that none

among the dummy is aged 27 years…..

…..I did not ask the witness as to have you seen the

accused before the identification parade or not.

It is true that it was appeared from the yadi that two

persons were the motor cyclist and had put on black

goggles and black cap and were aged about twenty to

twenty five years of age. It was also appeared from the

yadi that the pillion rider had put on black jacket and black

jeans. It is true that it was also mentioned in the yadi that

the complainant can identify the motorcyclists and the

witness can identify the person who executed fire. From

yadi exhibit-64 I did not feel that the accused Salim was the

driver of the motorcycle……

It is true that, in spite of my instructions both the accused

were not brought to me covered under veil at the time of

identification parade. I have not done any proceedings for

the police did not follow such clear instruction from me. It

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is true that from both the yadis I had realized that which

witness could identify to which accused.

It is true that, there is a corridor outside of my court room

and thereafter the compound wall is situated. It is true

that, too many members of the police and public are in

both places the corridor as well as compound. It is true

that, I cannot say anything that if the witness and accused

were introduced to me when the witness and the accused

were brought to me…..

….At both times I did not feel that none of the dummy is fit

and he should be sent back. I did not take into

consideration the age, height, look and cloths of dummy. It

is true that now even I am unable to give description of one

dummy even…..

…...It is true that, after arranging the accused with the

dummy in line, my peon had gone to call the witness, this

was happened at both the times. It is true that, I cannot

say that during both this time if any conversation could

have taken between my peon and the witness…..

…..It is true that, during both the panchnama I did not

enquire to accused. It is true that, after completion of the

panchnama, none of the witness from both did not inform

that for which reason 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 before the Judicial Magistrate before the witnesses

arrived. It is clear that the Appellant was duly identified by the

eye-witnesses. The defence has not been able to show any such

infirmity in the Identification Parade of the Appellant which vitiates

the Identification.

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36.The suggestion of there being many police men in the

corridor as also members of the public insinuates that the

witnesses may have been been tipped off by the police. Apart

from the fact that there is absolutely no evidence of any

interaction between the witnesses and the policemen, the Judicial

Magistrate has deposed that the Appellant was brought in before

him, before the witnesses arrived. From the tenor of the oral

evidence of the Judicial Magistrate, it is patently clear that he

deposed truthfully and did not try to cover up any loopholes or

lacunae.

37.Ms. Arora’s submission that the Sessions Court accepted that

the identity of the Appellant had not been established, but at the

same time convicted the Appellant on the basis of the testimony of

the same witnesses, is difficult to accept. The portion of the

judgment of the Trial Court relied upon by Ms. Arora is extracted

hereinbelow:-

30.It has been vehemently argued and, in my opinion, I

may even venture to say that, the arguments are not

entirely devoid of merit, that there are some doubts with

regard to the identity of accused No.1 & 2 as being the

perpetrators of the offence herein. There is some merit in

the submission made on behalf of the defence that, though

the accused Nos.1 & 2 were already in the custody of the

Naroda police on accused of their being arrested in

connection with some other offence, there is no worthwhile

reason as to why their arrest was affected in the present

offence nearly a week thereafter. There is further merit as

to why since both the accused were already in police

custody i.e. to say custody of the Naroda Police on the

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relevant dates, the identification parades were separately

held on 01.01.2003 and 03.01.2003 respectively. It is also

necessary to note that, no satisfactory explanation has

been forthcoming from the Investigating Officer PW-14, who

has in my opinion, has testified in a rather casual manner

and not too serious fashion…..”

38.The judgment of the Sessions Court has to be read in

entirety. Even though the Trial Court made certain observations

with regard to the casual manner in which the Investigating Officer

had testified, the Trial Court found that the first accused and

second accused had positively been identified by both the

concerned eye witnesses i.e., PW-12 and PW-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

valid identification parades by both the concerned eye

witnesses i.e. to say PW-12 & PW-8 respectively as being

the persons, who has come on the motor cycle driven by

accused no.2 of which, the accused no.1 was a pillion rider

and what further emerges is the undisputed and

uncontroverted fact of the accused no.1 pulling out a pistol

like weapon and firing it at Dr. Jaydeep Patel at a point

blank range. The identification parades exhs. 65 and 67

respectively are corroborated by PW-11 being the

executive magistrate and Mohmedyunus A. Mansuri and

are further corroborated and supported by the testimonies

of PW-12 & PW-8 respectively and despite extensive cross-

examination by the Learned Advocate for the defence, the

testimony of all the three witnesses has withstood the test

of cross examination and the cumulative effect of such

testimonies make me unhesitatingly come to a conclusion

that, both the accused Nos. 1 & 2 were positively identified

in the course of the identification parades by PW-12 & PW-

8 respectively……”

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40.We are unable to accept Ms. Arora’s submission that the

High 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 the cross-examination to disbelieve

there evidence. It is a matter of record that both the witnesses had

in the course of separate Test Identification Parades, positively

identified the first accused as well as the Appellant herein.

41.Ms. Arora’s submision that the Courts below had erred in

holding that the Appellant had positively been identified by

Prosecution Witnesses is also not sustainable. The identity of the

Appellant has been proved beyond reasonable doubt, by the eye-

witnesses to the crime as well as the Pancha witness. It may be

true that conviction based on erroneous identification and a faulty

Test Identification Parade cannot be sustained. The proposition of

law in Iqbal and Another vs. State of Uttar Pradesh

1

cited by

Ms. Arora is unexceptionable. However, in this case, the Appellant

had actually been identified by both the victim and the

complainant and also in Court by the Pancha witness (PW-10), as

observed above. The identification cannot be said to be

erroneous. Nor did the Test Identification Parade suffer from such

infirmity as to vitiate the identification itself.

1 (2015) 6 SCC 623

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42.Ms. Arora next submitted that the prosecution has not been

able to establish the chain of custody of the bullet which was

removed by Dr. Shrikant (PW-13) from the body of the victim. She

referred to Dr. Shrikant’s deposition that:-

“ After the surgery we gave the bullet to sister we took out

from body of the patient, Sister means Standing Nurse, I do

not have person knowledge that she gave it to whom, we

gave her loose bullet. It is true that in medico-legal case

when any bullet is taken out from body of anyone, then the

care should be taken that no scratches whatsoever

appeared on such bullet or it does not get damaged in

other way. I do not know anything as to such bullet should

be kept in free box and to be sent to the F.S.L. It is true

that nowhere I have mentioned any description of said

bullet.” (Cross-examination @ Pg. 118-119)”

43.Ms. Arora further pointed out that the Investigating Officer

being the 14

th

Prosecution Witness (PW-14) had in his evidence

stated “ ….Today I did not recall that whether the bullet which was

produced before me by Sterling Hospital was in sealed condition or

not…...” (Cross examination).

44.Ms. Arora argued that when conviction is based on firing of a

bullet, the Prosecution has to establish that the same bullet has

been sent for forensic examination. The Prosecution failed to do

so. Ms. Arora questioned 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 handing over the bullet to the Investigating

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Officer not being in accordance with the provisions of law, I

am of the opinion that, even if some irregularities are found

to have taken place, the same cannot undermine and

negate the prosecution version to the extent of giving a

clean chit or thereby resulting in the acquittal of the

accused Nos. 1 & 2 as sought for by the defence”

45.We do not find any such error in the findings of the Session

Court to warrant interference. When there is a time gap between

an occurrence and the 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 the body of a

patient to throw light on the chain of custody of the bullet, after it

was made over to the attending Nurse. There was sufficient

incriminating evidence for conviction of the Appellant.

46.Ms. Arora also argued that conviction of the Appellant

placing reliance on alleged recovery of a weapon from an open

ground cannot be sustained. In support of her submission she

referred to the testimony of the Investigating Officer (PW-14)

extracted hereinbelow:-

“…..On 5/1/2003 the accused Mustak Ahmedbhai Shaikh

expressed his willingness to show the weapon used in this

offence as well as two other weapons which were hide

buried in the ground opposite of Shahalam……

we came to Shahalam Darwaja, where the accused told that

the Jeep would no go further, therefore we get down, the

accused walked ahead and from shahalam Dargah came

into an open ground from a street on opposite side and he

removed the sand from the ground and took out and

23

showed a weapon in a cloth bag which were two Pistols and

Tamanca for which a detailed panchnama was drawn and

seized and packed all the three separately and sealed

them, a chit duly signed by the panchas was placed in it

and were sealed.”

47.Ms. Arora argued that the Prosecution could not have relied

on recovery of a weapon from an open field after one month from

the date of the alleged incident. PW-14, Investigating Officer,

could not stand the test of cross-examination with regard the

description of the place of alleged recovery and the direction

thereto. To buttress her arguments, Ms. Arora referred to the

cross-examination of the PW-14 where he stated:-

“it is not true that the place from where the accused found

the weapon is situated too far and deep from the main road.

I do not recall now that after getting down from the Jeep and

to reach to the 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, I cannot say that what is situated

in front of row of those residential houses. It is true that the

place from where the weapon was found out was open

space, there was no traffic. I have not recorded statement

of anyone form the residential houses situated nearby the

said place.”

48.In my considered opinion, minor discrepancies in evidence

and inability to recall details of the description of houses, roads

and streets after several years, do not vitiate the evidence of

recovery itself. The Appellant showed the police the spot where

the weapons had been hidden under the sand. The Trial Court

upon appreciation of evidence on record very rightly held:-

24

“Again providing positive corroboration to the entire

version is the fact of the discovery of the muddamal

weapon in terms of the panchnama exh.88 at the behest of

accused no.2 which panchnama, positively establishes the

recovery of the muddamal. The said panchnama derives

independent corroboration and support in the testimony of

PW-10 Pradeep Mohanbhai Patel, who has not only

positively identified accused No.2 but has also given a

complete corroboration to the process reflected in the

panchnama exh.88. The Panch witness has also, in my

opinion, clearly withstood the test of extensive cross-

examination and in my opinion, there is no reason to

discard or disbelieve such witness.

……… The prosecution in my opinion, has successfully

established the chain of events linking the tanking place of

the incident, establishing the positive identity of accused

Nos.1 & 2, recovery of the muddamal weapon at the behest

of accused No.2.

49.In support of her submission that recovery from an open

place accessible to all was vitiated and could not have been relied

upon for conviction 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 said

that recovery of the weapon of offence was from an open place

accessible to all. The weapons were dug out from underneath the

sand in an open ground behind the Shah Alam Dargah.

2 (2003) 5 SCC 499 Para 9-12

3 (2002) 8 SCC 45 para 18

25

51.Ms. Arora finally argued that the Prosecution had failed to

prove motive and conspiracy which was essential to convict the

Appellant. However, where the firing had taken place and there

were eye 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 the first accused were identified by the eye

witnesses to the firing, being the complainant (PW-8) and the

Appellant.

52.The prosecution may not have been able to prove the

greater conspiracy of targeting the prominent leaders of the Hindu

community. The inability of the Prosecution to establish greater

conspiracy led to the acquittal of the third accused. It is well

settled the minor discrepancies in the evidence does not vitiate a

conviction. The discrepancy if any in the timing is insignificant.

PW-8 in his cross-examination stated that the incident took place

between 4.45 to 5.00. p.m. on 3.12.2002. The victim has said the

incident occurred at around 4.45. p.m. They both stated that the

incident took place near Galaxy Cinema.

53.In course of the trial, the Trial Court has considered the

evidence on record at length. It is reiterated that the eye

witnesses to the crime being the victim and the driver of his car,

the 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

26

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. The High

Court confirmed the judgment and order of conviction but

enhanced sentence under Section 307 read with 114 of the Indian

Penal Code to seven years instead of six.

54.The Trial Court after considering the evidence on record and

after hearing the Prosecution, the Appellant and the other accused

found that the third accused was not present at the place of

occurrence and there was no evidence to establish that he was

part of any conspiracy. The third accused was accordingly

acquitted. The Sessions Court, however, found the Appellant and

first accused guilty and convicted them of offences punishable

under Section 307 read with Section 114 of the Indian Penal Code

read with Section 25(1)(B)(a) of the Arms Act read with Section

135(1) of the Bombay Police Act for having committed the offence

of aiding and abetting each other in targeting and attempting to

murder the victim.

55.The Sessions Court sentenced the Appellant to undergo

rigorous imprisonment for 6 years for offence under Section 307

read with Section 114 of the Indian Penal Code, rigorous

imprisonment for 3 years for offence punishable under Section

27

25(1)(B)(a) of the Arms Act and rigorous imprisonment for 6

months for violation of Section 135(1) of the Bombay Police Act.

The sentences were to run concurrently and the time spent by the

Appellant in judicial custody was ordered to be set aside while

computing the total period of sentence.

56.The Trial Court, in effect, found:

(i)It had been established beyond any iota of doubt that

the victim had sustained bullet injuries. It had also been

proved that the incident had taken place and in the manner

alleged.

(ii)The contention of the defence that the injuries were

not so life threatening or grave or serious as to attract

Section 307 of the Indian Penal code was not acceptable,

considering the testimony of three Medical experts who

deposed with regard to the gravity and seriousness of the

injury.

(iii)The evidence of the FSL (Forensic Science Laboratory)

Expert, Mukesh N. Joshi coupled with Exhibit 92 established

that an offence attracting the provisions of Section 307 of

the Indian Penal Code had taken place.

(iv)The recovery of the weapon in terms of Panchnama

(Exhibit 88) was proved beyond reasonable doubt.

28

(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

identified both by the complainant (PW-8) and the victim

(PW-12) in course of identification parade held on 1

st

and 3

rd

January 2003 and they were also identified in Court. The

mere fact that the Identification Parades were held on

different dates would not render the identification

unreliable.

(vii)Both the eye-witnesses had identified the Appellant

and the first accused as being the persons who were on

the motorcycle. The motor cycle was driven by the

Appellant and the first accused was the pillion rider. Both

the eye-witnesses had seen the pillion rider, that is, the first

accused handling the weapon. The victim clearly deposed

that the first accused had fired at the victim at point blank

range. The said witnesses remained unshaken despite

extensive cross-examination.

(viii)The concerned Executive Magistrate who conducted

the identification parade (PW-11) corroborated the evidence

of PW-12 and PW-8 with regard to the identification and he

also could not be shaken despite extensive cross-

29

examination.

(ix)The Panchnama being Exhibit-88 relating to recovery

of the weapon was duly proved by the oral testimony of

Pradeep Mohanbhai Patel (PW-10) who had also identified

the Appellant.

(x)The Prosecution had established from the ballistic

report being Exhibit-92, and the evidence of FSL experts

that the bullet that was extracted from the body of the

victim, had been fired from the weapon recovered on the

confession of the Appellant.

57.The sessions Judge, in our considered opinion, correctly

found that notwithstanding minor discrepancies, the Prosecution

had successfully established the chain of events, linking the crime

to inter alia the Appellant.

58.In this appeal, we are not concerned with the conviction of

the first accused. The involvement of the Appellant in the

offences alleged has, in our opinion, duly been established inter

alia by the injury of the victim; extraction of bullet from the body

of the victim; linking of the bullet to the weapon recovered on the

confession of the Appellant upon Forensic examination; the

evidence of two eye-witnesses to the crime, namely the

complainant (PW-8) and victim (PW-12); Identification by the

complainant and the victim of the Appellant in the Identification

Parades as also in Court; Identification by the Pancha witness (PW-

30

10) of the Appellant as the person at whose instance the weapon

of offence was recovered.

59.The finding of the Sessions Court that the Prosecution had

not been able to establish the involvement of the third accused, or

to establish that the Appellant and the first accused were part of a

conspiracy, which had targeted prominent leaders of the Hindu

community did not, in our view, warrant interference. In our view,

the High Court rightly dismissed the Criminal Appeal No.1145 of

2006, and allowed Criminal Appeal No.567 of 2006 filed by the

Respondent State, only to the extent of enhancing the sentence of

imprisonment inter alia of the Appellant to 7 years 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 and

affirm the conviction of the Appellant and the sentence imposed

upon the Appellant as enhanced by the High Court.

.................................J

[R. Banumathi]

.................................J

[Indira Banerjee]

JUNE 18, 2020;

NEW DELHI.