# Allarakha Habib Memon Etc v. State of Gujarat

- **Citation:** 2024 INSC 590
- **Court:** Supreme Court of India
- **Decided:** 2024-08-08
- **Case number:** Criminal Appeal Nos. 2828-2829 of 2023
- **Bench:** B.R. Gavai, Sandeep Mehta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/allarakha-habib-memon-etc-v-state-of-gujarat-38103
- **Pages:** 32

## Headnote

As per the FIR (Exhibit-79) there were two eyewitnesses to the
incident, PW-12-Police Constable and PW-11-the first informant
who was deceased's cousin brother. PW-12 claiming to be an
eyewitness to the incident had reported at the police station with
the crime weapons however, he did not lodge any complaint of the
incident. FIR was registered on the basis of the oral statement of
PW-11. Testimony of the aforesaid witnesses, if was trustworthy
and reliable. In view of inconsistencies and contradictions in the
evidences, whether the conviction of the accused-appellants under
Section 302 read with Section 120B, Penal Code, 1860 and their
sentence was justified.
Headnotes†
Penal Code, 1860 - ss.302 r/w s.120B - Concurrent conviction
of the accused-appellants - Various inconsistencies and
contradictions in evidences - Guilt of the accused appellants
if proved beyond doubt:
Held: No - First informant-PW-11 was not present at the crime
scene - Evidence of PW-12-an independent witness makes the
very presence of PW-11 at the crime scene doubtful - Testimony
of PW-11, the star witness of prosecution is thus, not trustworthy
and reliable as the same was contradicted on material aspects
by numerous material facts and circumstances - Testimony of
the Police Constable-PW-12 also does not help the prosecution
in linking the accused-appellant with the crime - It is improbable
and totally unacceptable that a police constable had seen the
incident and also brought the crime weapons to the police station
and yet his statement would not be recorded and the factum of
presentation of weapons would not be entered in the daily diary
(roznamcha) of the police station - Non-production of the daily
* Author
346
[2024] 8 S.C.R.
Digital Supreme Court Reports
diary is a serious omission on part of the prosecution - Further,
on facts, identification of the accused by PW-12 for the first time
in the dock is unbelievable and unacceptable - Also, on a careful
perusal of the complaint (Exhibit P-79) filed by PW-11 which was
subsequently registered as the FIR, it is manifest that no time of
recording was mentioned thereupon - There was no endorsement
as to the date and time on which the said FIR reached the Court
concerned - Going by the testimony of PW-11, the actual complaint
filed by him at the police station seems to have been withheld
and the FIR was a post investigation document and seems to
have been created at a later point of time - Furthermore, neither
the disclosure statements made by the accused were proved as
per law nor the same resulted into any discovery which could be
accepted as incriminating inasmuch as the requisite link evidence
was never presented by the prosecution so as to establish that
the recovered articles remained in the self-safe condition from the
date of the seizure till the same reached the FSL - Prosecution
failed to lead convincing evidence establishing the guilt of the
accused appellants beyond doubt so as to hold the appellants
responsible for the crime - Impugned judgments quashed and set
aside - Appellants acquitted by giving them the benefit of doubt.
[Paras 19, 20, 22, 23, 25, 28, 31, 36-38, 46, 48]
Code of Criminal Procedure, 1973 - ss.161, 162 - Police
Constable-PW-12 claiming to be an eyewitness to the incident
reported at the police station with the crime weapons
however, he did not submit any report/complaint of the
incident - Complaint lodged by PW-11-first informant who
was deceased's cousin brother came to be registered as
FIR - Impermissibility:
Held: First version of the incident as narrated by the PW-12 would
be required to be treated as the FIR and the complaint lodged by
PW-11 would be relegated to the category of a statement u/s.161,
CrPC and nothing beyond that - The same could not have been
treated to be the FIR as it would be hit by s.162 CrPC - Prosecution
is thus, guilty of concealing the initial version from the Court and
hence, an adverse inference is drawn against the prosecution on
this count. [Pa

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[2024] 8 S.C.R. 345 : 2024 INSC 590
Allarakha Habib Memon Etc.
v.
State of Gujarat
(Criminal Appeal Nos. 2828-2829 of 2023)
08 August 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
As per the FIR (Exhibit-79) there were two eyewitnesses to the
incident, PW-12-Police Constable and PW-11-the first informant
who was deceased's cousin brother. PW-12 claiming to be an
eyewitness to the incident had reported at the police station with
the crime weapons however, he did not lodge any complaint of the
incident. FIR was registered on the basis of the oral statement of
PW-11. Testimony of the aforesaid witnesses, if was trustworthy
and reliable. In view of inconsistencies and contradictions in the
evidences, whether the conviction of the accused-appellants under
Section 302 read with Section 120B, Penal Code, 1860 and their
sentence was justified.
Headnotes†
Penal Code, 1860 - ss.302 r/w s.120B - Concurrent conviction
of the accused-appellants - Various inconsistencies and
contradictions in evidences - Guilt of the accused appellants
if proved beyond doubt:
Held: No - First informant-PW-11 was not present at the crime
scene - Evidence of PW-12-an independent witness makes the
very presence of PW-11 at the crime scene doubtful - Testimony
of PW-11, the star witness of prosecution is thus, not trustworthy
and reliable as the same was contradicted on material aspects
by numerous material facts and circumstances - Testimony of
the Police Constable-PW-12 also does not help the prosecution
in linking the accused-appellant with the crime - It is improbable
and totally unacceptable that a police constable had seen the
incident and also brought the crime weapons to the police station
and yet his statement would not be recorded and the factum of
presentation of weapons would not be entered in the daily diary
(roznamcha) of the police station - Non-production of the daily
* Author
346
[2024] 8 S.C.R.
Digital Supreme Court Reports
diary is a serious omission on part of the prosecution - Further,
on facts, identification of the accused by PW-12 for the first time
in the dock is unbelievable and unacceptable - Also, on a careful
perusal of the complaint (Exhibit P-79) filed by PW-11 which was
subsequently registered as the FIR, it is manifest that no time of
recording was mentioned thereupon - There was no endorsement
as to the date and time on which the said FIR reached the Court
concerned - Going by the testimony of PW-11, the actual complaint
filed by him at the police station seems to have been withheld
and the FIR was a post investigation document and seems to
have been created at a later point of time - Furthermore, neither
the disclosure statements made by the accused were proved as
per law nor the same resulted into any discovery which could be
accepted as incriminating inasmuch as the requisite link evidence
was never presented by the prosecution so as to establish that
the recovered articles remained in the self-safe condition from the
date of the seizure till the same reached the FSL - Prosecution
failed to lead convincing evidence establishing the guilt of the
accused appellants beyond doubt so as to hold the appellants
responsible for the crime - Impugned judgments quashed and set
aside - Appellants acquitted by giving them the benefit of doubt.
[Paras 19, 20, 22, 23, 25, 28, 31, 36-38, 46, 48]
Code of Criminal Procedure, 1973 - ss.161, 162 - Police
Constable-PW-12 claiming to be an eyewitness to the incident
reported at the police station with the crime weapons
however, he did not submit any report/complaint of the
incident - Complaint lodged by PW-11-first informant who
was deceased's cousin brother came to be registered as
FIR - Impermissibility:
Held: First version of the incident as narrated by the PW-12 would
be required to be treated as the FIR and the complaint lodged by
PW-11 would be relegated to the category of a statement u/s.161,
CrPC and nothing beyond that - The same could not have been
treated to be the FIR as it would be hit by s.162 CrPC - Prosecution
is thus, guilty of concealing the initial version from the Court and
hence, an adverse inference is drawn against the prosecution on
this count. [Para 21]
Evidence Act, 1872 - ss.26, 21 - Confessions of the accusedappellants recorded by PW-2-Medical Officer while preparing
their injury reports of the accused - Admissibility:
[2024] 8 S.C.R.
347
Allarakha Habib Memon Etc. v. State of Gujarat
Held: The so-called confessions are ex-facie inadmissible in
evidence as the accused persons were presented at the hospital
by the police officers after having been arrested in the present
case - As such, the notings made by PW-2 in the injury reports
of the accused would be clearly hit by s.26 - Therefore, the said
admissions of the accused not accepted as incriminating pieces
of evidence relevant u/s.21. [Para 41]
Evidence - Seizure panchnama, FSL Reports - Reliance
upon - When not proper - Seizure panchnama recorded that
the accused threw away their weapons and fled away from
the crime scene and that all the weapons were brought to
the police station by police personnel - Reliance placed by
Courts below on FSL reports to hold that blood group found
on the crime weapons incriminated the accused for the crime
as the same matched with the blood group of the deceased -
Correctness:
Held: Various infirmities create a doubt on the very process of
seizure of the weapons - Seizure panchnama (Exhibit -38) does
not bear the signatures of PW-12-police constable who admittedly
collected the weapons from the crime scene and presented them
to the police station - Thus, no credence can be given to seizure
panchnama because it was not attested by the witness who had
actually presented the weapons at the police station - Trial Court
as well as the High Court heavily relied upon the FSL reports
(Exhibits 111-115) for finding corroboration to the evidence of the
eyewitnesses and in drawing a conclusion regarding culpability of
the appellants for the crime however, the testimony of the so-called
eyewitnesses is discarded being doubtful - Thus, even presuming
that the FSL reports conclude that the blood group found on the
weapons recovered at the instance of the accused matched with
the blood group of the deceased, this circumstance in isolation,
cannot be considered sufficient so as to link the accused with
the crime - Further, the IO-PW18's evidence on the aspect of
disclosure statements made by the accused-appellant leading to
the recoveries is perfunctory and unacceptable - The witness did
not elaborate upon the words spoken by the accused-appellant
at the time of making the disclosure statements. [Paras 42-44]
Evidence Act, 1872 - s.27 - Disclosure as regards the place
of incident irrelevant when crime scene was already known
to police:
348
[2024] 8 S.C.R.
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Held: In the present case, the circumstance regarding identification
of place of incident at the instance of the accused was inadmissible
because the crime scene was already known to the police and
no new fact was discovered in pursuance of the disclosure
statements - Thus, since the place of incident was known to police,
this disclosure was irrelevant. [Paras 41, 45]
Constitution of India - Article 136 - Concurrent findings by
courts below - Exercise of jurisdiction u/Article 136:
Held: While exercising jurisdiction under Article 136 this Court will
not interfere with the concurrent findings recorded by the courts
below - However, where the evidence has not been properly
appreciated, material aspects have been ignored and the findings
are perverse, this Court would certainly interfere with the findings
of the courts below though concurrent. [Para 47]
Case Law Cited
State of A.P. v. Punati Ramulu and Others (1994) Supp 1
SCC 590; Babu Sahebagouda Rudragoudar and Others v. State of
Karnataka [2024] 5 SCR 174 : (2024) OnLine SC 561; Mustkeem
alias Sirajudeen v. State of Rajasthan [2011] 9 SCR 101 : (2011)
11 SCC 724 - relied on.
Tomaso Bruno & Anr. v. State of Uttar Pradesh [2015] 1
SCR 721 : (2015) 7 SCC 178; Amrik Singh v. State of Punjab [2022]
7 SCR 451 : (2022) 9 SCC 402; Animireddy Venkata Ramana &
Ors. v. Public Prosecutor, High Court of Andhra Pradesh [2008]
3 SCR 1078 : (2008) 5 SCC 368 - referred to.
List of Acts
Evidence Act, 1872; Penal Code, 1860; Code of Criminal Procedure,
1973; Constitution of India.
List of Keywords
Eyewitnesses; So-called eyewitnesses; Projected eyewitness;
Concurrent findings by courts below; Concurrent conviction; Crime
weapons; Weapons of offence; Identification of the accused; Test
Identification Parade; FIR was a post investigation document;
Disclosure statements made by the accused not proved; Admissions
of the accused not incriminating pieces of evidence; Guilt of
the accused not proved beyond doubt; Seizure panchnama,
FSL Reports;Confessions of the accused; Confessions ex-facie
[2024] 8 S.C.R.
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Allarakha Habib Memon Etc. v. State of Gujarat
inadmissible in evidence; No new fact discovered in pursuance
of disclosure statements; Identification of place of incident at the
instance of accused inadmissible; Crime scene already known to
police.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 28282829 of 2023
From the Judgment and Order dated 18.02.2019 of the High Court of
Gujarat at Ahmedabad in CRLAP Nos.450 and 563 of 2015
With
Criminal Appeal No. 112 of 2024
Appearances for Parties
Divyesh Pratap Singh, Ms. Shivangi Singh, Amit Sangwan, Rishi
Malhotra, Utkarsh Singh, Praveen Chaturvedi, Advs. for the
Appellants.
Ms. Deepanwita Priyanka, Ms. Swati Ghildiyal, Ms. Devyani Bhatt,
Advs. for the Respondent.
Judgment / Order of the Supreme Court
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,
350
[2024] 8 S.C.R.
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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
[2024] 8 S.C.R.
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Allarakha Habib Memon Etc. v. State of Gujarat
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 sent for postmortem. Dr. Swapnil (PW-1)
conducted autopsy taking note of 29 injuries all over the body of
the deceased-Mohammad Sohail. He issued the post-mortem report
(Exhibit P-12) opining that the cause of death of Mohammad Sohail
was due to shock attributed to multiple injuries all over the body.
The first informant-Mohammad Arif Memon (PW-11) was medically
examined by the Medical Officer, Dr. Arvindbhai (PW-2) who after
examining him, issued a medical certificate (Exhibit P-17).
6.
The Investigating Officer (PW-18) carried out the usual investigation
and prepared a site plan (Exhibit P-27) of the place of occurrence.
The accused appellants were arrested after about five days from
the date of incident. Clothes worn by the accused appellants were
collected by drawing panchnama (Exhibit P-40). The Investigating
Officer (PW-18) reconstructed the crime scene at the instance of
all accused-appellants and drew demonstration panchnama (Exhibit
P-50). The effected recovery of one big knife at the instance of
accused Mohmedfaruk @ Palak; the blood-stained clothes of
the deceased and the recovered weapons were forwarded to
the Forensic Science Laboratory (in short 'FSL') for chemical
analysis. The Investigating Officer (PW-18) also collected call detail
records from service provider i.e. Vodafone. After conclusion of the
investigation, a charge was filed against the accused appellants for
the offences punishable under Sections 302, 323 and 120B IPC.
7.
The offence under Section 302 IPC being exclusively triable by the
Court of Sessions, the case was committed and made over for trial
to the Court of Additional Sessions Judge, Anand, where it came
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to be registered as Sessions Case No. 84 of 2011. Charges were
framed against the accused appellants for the offences punishable
under Sections 302, 323 and 120B IPC. The accused-appellants
pleaded not guilty and claimed trial. The prosecution examined 18
witnesses and exhibited 131 documents in order to bring home the
charges. On being questioned under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter being referred to as 'CrPC')
and upon being confronted with the allegations as appearing in the
prosecution case, the accused appellants denied the same and took
a categorical stance that they had been falsely implicated in the
case. However, no evidence was led in defence.
8.
After hearing the arguments put forth by the prosecution and the
defence counsel and upon appreciating the evidence available on
record, the trial Court, vide judgement and order dated 13th October,
2014 convicted and sentenced the accused appellants as mentioned
above. The judgment of conviction and the order of sentence was
challenged by the accused appellants before the Division Bench of
Gujarat High Court by filing separate criminal appeals, which came
to be rejected vide a common judgment dated 18th February, 2019,
which has been subjected to challenge in the instant batch of appeals
by special leave.
9.
Since the appeals arise out of a common judgement, the same were
heard and are being decided by this judgement.
Submissions on behalf of the accused-appellants:-
10. Learned counsel appearing on behalf of the accused appellants
advanced the following submissions beseeching the Court to accept
the appeals, set aside the impugned judgments and acquit the
accused appellants of the charges: -
10.1
Demistalkumar, Police Constable (PW-12), projected to be an
eyewitness of the incident, was admittedly the first to reach
the police station with two weapons collected from the crime
scene at 9:15 pm. However, surprisingly, his statement was
either not recorded or if recorded, the same never saw the
light of the day. The FIR (Exhibit P-79) which ought to have
been registered on the earliest version of Demistalkumar
(PW-12) was lodged at a much later point of time on the
basis of a statement given by the first informant, Mohammad
[2024] 8 S.C.R.
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Allarakha Habib Memon Etc. v. State of Gujarat
Arif Memon (PW-11) to S.N. Ghori, Police Sub-Inspector
(PW-17) at 11:00 pm. The fact that Demistalkumar (PW-12)
had reached the police station at the earliest point of time
along with the weapons used in the crime is admitted by the
prosecution and is fortified by the evidence of panch witness,
Mohammad Hussain (PW-5), who stated that he was informed
by the police that a person named Demistalkumar (PW-12)
had produced the weapons at 9:15 pm.
10.2
Demistalkumar (PW-12) admitted in his cross-examination
that after reaching the police station, an enquiry was made
from him by the higher officials. As Demistalkumar (PW-12)
is projected to be an eyewitness who had produced the
weapons used in commission of the crime and had also been
questioned about the incident at the police station at the
earliest point of time, his statement which presumably was
the first detailed disclosure about the incident, would have
assumed the character of an FIR. However, his statement was
never brought on record, which tantamounted to deliberate
concealment by the prosecution. These proceedings which
took place at the police station would definitely have been
recorded in the daily diary (roznamcha) maintained at the
police station. However, these vital aspects of the case have
been intentionally withheld by the prosecution who failed to
produce the corresponding daily diary entry before the Court,
warranting an adverse inference to be drawn. In support of
this contention, learned counsel placed reliance on a judgment
rendered by this Court in the case of Tomaso Bruno & Anr.
v. State of Uttar Pradesh.1 It was urged that the statement
of Demistalkumar (PW-12) was legally required to be treated
as the first and foremost information.
10.3
That the explanation offered by Demistalkumar (PW-12), for
not lodging the FIR of the incident, stating that an another
person was already present there at the police station at 9:15
pm for giving the complaint, is falsified by the testimony of
S.N. Ghori, Police Sub-Inspector (PW-17), who testified on
oath that the statement of first informant, Mohammad Arif
1
[2015] 1 SCR 721 : (2015) 7 SCC 178
354
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Memon (PW-11) was reduced into writing by him at Krishna
Medical Hospital, Karamsad at 11:00 pm.
10.4
That the evidence of Demistalkumar (PW-12) also creates
grave doubt about the very presence of the first informant,
Mohammad Arif Memon (PW-11) at the place of incident, as
the witness clearly stated in his evidence that he saw only
the injured lying at the crime scene in a profusely bleeding
condition.
10.5
That Demistalkumar (PW-12) made gross improvements in
his evidence while identifying the three appellants in the dock
for the first time after a span of more than two and a half
years. The witness admitted in his cross-examination that
he had not provided any details in his statement, recorded
under Section 161 CrPC, about the identity of assailants.
The identification in the dock without any Test Identification
Parade (TIP) is a weak and unreliable piece of evidence. In
support of this submission, learned counsel placed reliance
on the judgment rendered by this Court in the case of Amrik
Singh v. State of Punjab. 2
10.6
That K.N. Waghela, Head Constable (PW-16), posted at the
Anand Town Police Station admitted in his cross-examination
that a telephonic wardhi about the incident was noted down by
him. However, the witness was not in a position to recollect the
exact time of recording of the telephonic wardhi. The witness
stated that it was mentioned in the telephonic wardhi, that an
indiscriminate assault with sword and other sharp weapons
had been made upon Mohammad Sohail (deceased). It
was admitted by the witness in his cross-examination, that
no reference of a sword was made in the FIR. It was also
admitted that there was no reference of dagger and gupti in
the telephonic wardhi. It was contended that the daily dairy
entry pertaining to the recording of the telephonic wardhi
was also not produced on record by the prosecution which
tantamounts to concealment of vital facts requiring adverse
inference to be drawn against the prosecution.
2
[2022] 7 SCR 451 : (2022) 9 SCC 402
[2024] 8 S.C.R.
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Allarakha Habib Memon Etc. v. State of Gujarat
10.7
That the information about the commission of crime had
been received at the police station at 9:15 pm, is clear from
the evidence of Demistalkumar (PW-12) and therefore, the
statement of the first informant (PW-11) recorded by S.N.
Ghori, PSI (PW-17) at a later point of time, would tantamount
to a statement under Section 161 CrPC and resultantly, it will
be hit by Section 162 CrPC. In support of this contention,
learned counsel placed reliance on a judgment rendered by
this Court in the case of Animireddy Venkata Ramana &
Ors. v. Public Prosecutor, High Court of Andhra Pradesh.3
10.8
Mustaq (PW-13), another projected eyewitness to the
incident, deposed that he was also present at the place of
occurrence and had seen the accused appellants assaulting
the deceased. The witness, while deposing on oath, made
grave improvements in his testimony inasmuch as in his
previous statement under Section 161 CrPC, he had clearly
stated that he was at his house at the time of alleged incident
and that he received a call from the father of the deceased,
Mohammad Iqbal Memon (PW-14), about the attack made
on the deceased. Thus, Mustaq (PW-13) spoke a blatant
lie in his deposition while trying to assume the status of an
eyewitness without actually being present at the crime scene.
His claim in this regard is further belied by the testimony of
Mohammad Iqbal Memon (PW-14), who stated on oath that it
was he who had informed Mustaq (PW-13) about the incident.
It was contended that if at all Mustaq (PW-13) was present
at the place of incident, then he would have been the one to
inform the father of the deceased, Mohammad Iqbal Memon
(PW-14) about the incident and not the other way around.
10.9
That the evidence of Demistalkumar (PW-12) and K.N.
Waghela, Head Constable (PW-16) completely contradicts the
evidence of the so-called eyewitnesses Mustaq (PW-13) and
first informant, Mohammad Arif Memon (PW-11) and brings their
presence at the crime scene under a grave shadow of doubt.
10.10 That the first informant, Mohammad Arif Memon (PW-11),
stated on oath that two other persons, namely, Mehboob Abdul
3
[2008] 3 SCR 1078 : (2008) 5 SCC 368
356
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Rehman Memon and Irfanbhai Memon, being the colleagues
of the deceased were also present at the spot. However, these
two persons were not examined in evidence for reasons best
known to the prosecution.
10.11 That the first informant, Mohammad Arif Memon (PW-11) did
not make any claim in the FIR that he too had sustained an
injury in the alleged incident. However, he later claimed that he
was also injured in the incident, upon which he was medically
examined on the next day of the incident by Dr. Arvindbhai
(PW-2). The doctor (PW-2) admitted in his cross-examination
that the injury No.2 could be the result of itching and scratching.
10.12 That the first informant, Mohammad Arif Memon (PW-11)
claimed in his evidence that he lifted the victim and placed
him in a rickshaw, after he had been indiscriminately assaulted
by the accused appellants using sharp weapons. However,
he admitted not having received any blood stains either on
his person or on his clothes, which was bound to happen if
he had actually assisted in boarding the profusely bleeding
victim on to the rickshaw.
10.13 That none of the so-called eyewitnesses were actually present
at the crime scene; they never saw the incident and a case of
blind murder had been foisted upon the accused appellants
because of prior enmity.
10.14 That the trial Court and the High Court heavily relied on
the circumstance that the accused appellants had collected
weapons in the dicky of the scooter. However, neither any
scooter was recovered by the police nor did any witness gave
evidence in support of the above allegation. This circumstance
which the prosecution banked upon heavily in order to bring
home the charge of criminal conspiracy against the accusedappellant was not substantiated by any tangible evidence.
10.15 That as per the prosecution, the accused appellants were
arrested by the police on 9th May, 2011 i.e. after 5 days from
the date of alleged incident at a short distance from Memon
Colony, where the accused-appellants reside, while they were
trying to flee away on a motorcycle. It is highly improbable
that the accused-appellants, after committing such a grave
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crime would continue to reside in close vicinity of the crime
scene. Had there been any iota of truth in the prosecution
case, the police would have arrested the accused immediately
after the incident because they were all along available at
their respective homes which are located just nearby to the
place of incident.
10.16 That the recoveries/discoveries made at the instance of the
accused-appellants are fabricated and were not proved by
convincing/tangible evidence.
Submissions on behalf of the respondent-State: -
11. Per contra, learned counsel appearing for the respondent-State,
vehemently and fervently opposed the submissions advanced by
the learned counsel for the accused-appellants. Learned counsel for
the respondent-State advanced the following submissions craving
dismissals of the appeals:-
11.1
That the prosecution case is based on clinching testimony
of eyewitnesses which is corroborated in material particulars
by the evidence of Dr. Swapnil (PW-1) and so also the
incriminating recoveries effected by the Investigating Officer
(PW-18).
11.2
That the FIR (Exhibit P-79) was lodged with utmost promptitude
i.e. within two and a half hours of the incident. The accused
appellants were named in the FIR. The first informant,
Mohammad Arif Memon (PW-11) had no motive whatsoever
to falsely implicate the accused appellants for the crime.
The promptitude in lodging of the FIR lends succour to the
prosecution case.
11.3
That it is an admitted case that a day before the incident,
Mohmedfaruk @ Palak and Mohammad Sohail (deceased)
had indulged in a quarrel during a meeting owing to the
issue of shortage of water in the colony. Being enraged
by this controversy, Mohmedfaruk @ Palak conspired with
Amin @ Lalo Aarifbhai Memon and Allarakha Habib Memon
and launched the pre-planned indiscriminate attack upon
Mohammad Sohail, causing fatal injuries, leading to his death,
and causing injuries to the first informant, Mohammad Arif
Memon (PW-11).
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11.4
That the attack on the deceased was pre-mediated and
gruesome, inasmuch as, 29 injuries were caused to the
deceased by sharp and blunt weapons and no part of his
body was spared. The injuries so inflicted upon Mohammed
Sohail (deceased) proved instantaneously fatal which fact
was duly proved by Dr. Swapnil (PW-1).
11.5
That Dr. Arvindbhai, Medical Officer (PW-2) proved the
injuries of the first informant Mohammad Arif Memon (PW11) which corroborates the presence of the witness (PW-11)
with the deceased at the crime scene. In addition, thereto,
Dr. Arvindbhai (PW-2) also examined and proved the injuries
sustained by the accused appellants during the incident which
again corroborates the prosecution case regarding active
participation of the accused appellants in the incident.
11.6
That the prosecution led clinching evidence to establish
the guilt of the accused and therefore, the trial Court was
justified in convicting the accused-appellants as above. The
High Court too did not commit any error while affirming the
judgment of the trial Court and upholding the conviction of
the appellants herein.
11.7
That two competent Courts sifted and made detailed analysis
of the entire evidence and thereafter, have recorded concurrent
findings of facts, holding the accused appellants guilty of the
charges, and thus, this Court should not feel persuaded to
exercise its jurisdiction under Article 136 of the Constitution
of India, so as to interfere in the well-reasoned judgments
rendered by the trial Court and the High Court.
12. We have given our thoughtful consideration to the submissions
advanced at bar and have perused the impugned judgments. We
have minutely scanned the record with the assistance of the learned
counsels representing the parties.
Discussion and Conclusions: -
13. As per the prosecution case, the FIR (Exhibit-79) was registered
on 4th May, 2011 at 11:00 pm on the basis of the oral statement
given by the first informant Mohammad Arif Memon (PW-11) to
S.N. Ghori, PSI (PW-17) at Krishna Medical Hospital, Karamsad.
The first informant, Mohammad Arif Memon (PW-11) deposed in
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Allarakha Habib Memon Etc. v. State of Gujarat
his testimony that an incident had taken place on 3rd May, 2011
in their colony wherein, allegedly Mohammad Sohail (deceased)
made some imputations against Mohmedfaruk, thereby annoying
the accused Mohmedfaruk @ Palak. On the next day, i.e., on 4th
May, 2011 at about 8:30 pm, the first informant (PW-11) along with
his cousin Mohammad Sohail (deceased) had gone to Shah petrol
pump, near Bhalej Road overbridge for filling petrol in their scooter.
Having refuelled the scooter, they proceeded towards the Bhalej
overbridge for going home. At that point of time, Mohmedfaruk @
Palak came around and asked for the mobile number of Mohammad
Hussain, a friend of the first informant (PW-11) who used to reside
at Bangalore. The first informant (PW-11) stopped the vehicle and
was trying to look for the number of Mohammad Hussain saved in
his mobile at which point of time, the accused Amin@ Lalo Aarifbhai
Memon and Allarakha Habib Memom also reached there. Accused
Mohmedfaruk @ Palak insinuated as to why Mohammad Sohail had
insulted him in the meeting convened earlier in the Memon colony to
discuss the issue of water. Amin@ Lalo Aarifbhai Memon suddenly
took out a big knife concealed on his person and inflicted a blow
thereof on the head of Mohammad Sohail (deceased). Allarakha
Habib Memon took out a gupti and after removing the cover thereof,
inflicted a blow on the head of Mohammad Sohail who started running
towards the petrol pump in order to escape. Mohmedfaruk @ Palak
also chased Mohammad Sohail, whereupon, the first informant (PW11) tried to intervene, but he was given a push by Mohmedfaruk @
Palak and fell down as a result. Accused Mohmedfaruk @ Palak
also took out a big knife being carried by him and inflicted a blow
thereof on the back of Mohammad Sohail after chasing him down.
Having received multiple injuries in the assault laid by the accused
appellants, Mohammad Sohail fell down on the road just outside the
petrol pump. A policeman was present near the petrol pump who
came running towards Mohammad Sohail and on seeing him, the
three assailants started running away with their weapons. In the
intervening period, Mehboob Abdul Rehman Memon and Irfanbhai
Memon, colleagues of Mohammad Sohail also arrived at the spot.
Accused Allarakha Habib Memon and Amin @ Lalo Aarifbhai Memon
threw down their weapons whereas, Mohmedfaruk @ Palak ran away
carrying the knife held by him. The first informant (PW-11) noticed
large number of injuries on the body of Mohammad Sohail. Someone
stopped a rickshaw wherein; Mohammad Sohail was boarded, and
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he was taken to Anand Nagar Palika Hospital for treatment. On
reaching the hospital, they came to know that the doctor was on
leave on which, the first informant (PW-11) gave a call to his uncle
Mohammed Iqbal Memon (father of the deceased) who came to the
Anand Nagar Palika Hospital with a Maruti van. Mohammad Sohail
was placed in the van and was taken to Krishna Medical Hospital,
Karamsad for treatment where the duty Doctor examined him and
declared that he had expired. The first informant (PW-11) stated that
when Mohammad Sohail was being taken in the van, at that time,
he, Mohammad Sohail's father Mohammed Iqbal Memon, Sikander
Abdul Karim Chokshi, Munafbhai Farooqbhai Memon and Mustaq
Mohammad Siddiqbhai Memon were also present in the vehicle. The
aforesaid oral statement was treated to be the complaint (Exhibit
P-79) and came to be registered as the formal FIR.
14. Apparently, going by the allegations made in the FIR (Exhibit P-79),
there were two eyewitnesses to the incident, namely, the first
informant, Mohammad Arif Memon (PW-11), and the Police Constable,
Demistalkumar (PW-12) who were present at the petrol pump.
15. Before dealing with the evidence of the first informant, Mohammad
Arif Memon (PW-11), we would like to allude to the testimony of the
Police Constable, Demistalkumar (PW-12) who is indisputably an
independent witness having no interest either in the complainant
party or the accused party. The relevant extracts from the evidence
of Demistalkumar (PW-12) are reproduced hereinbelow for the sake
of ready reference: -
Examination-in-Chief:
"Since last 3 years I am discharging duty at Anand Town
Police Station at L.R. Police constable.
On 4/5/11, I was having my duty at Shah Petrol Pump
which is situated towards Anand at Bhalej bridge between
morning hours 10 to 2400 (sic). At 8:30 o' clock in the
night, I came to know that some scuffle has taken place
opposite Radhaswami Chamber. Hence I came on road
from Shah Petrol Pump. Once person was found lying
there in bleeding condition. He had fallen down at small
garden near Mahendra Shah Petrol Pump and 3 persons
were running towards him to beat him. They were having
weapons like knife and Gupti. Upon seeing me, 2 persons
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Allarakha Habib Memon Etc. v. State of Gujarat
out of the 3 had thrown away their weapons and 3rd person
ran away towards the bridge. Thereafter the person who
was having bleeding was made to sit in the rickshaw and
was sent for treatment. His relative came and the weapons
were deposited at police station. I came to know that the
person who was having bleeding had passed away at
Shri Krusna hospital. Police had taken my statement once
only. I had presented one big knife and Gupti at police
station and I can recognise those weapons if I am shown
those weapons."
...
"I can identify 3 persons which I have mentioned. Upon
being asked to 1st identified 2 accused out of the persons
present in the court today, he identifies 2 accused. One
of them is Amin Arif Memon and another one is Farooq
Safi Memon."
Cross-examination:
"One person told me that something wrong is going on
and hence I came to know about the things because of
which I went to the road and thereafter people got together.
Within 3-4 minutes people got together."
...
"There was one person in the rickshaw along with the
injured person."
...
"It was approximately 6 minutes between my having
seen the injured person and the injured person having
gone in the rickshaw. I had tried to help in keeping the
injured person in the rickshaw. That person was having
severe bleeding. During placing the injured person in the
rickshaw, my clothes got blood stains. Those clothes I had
not handed over to the police. Police had not asked those
clothes. After that injured person was taken to hospital, at
about 9:15 o' clock I had gone to the police station. I had
gone to Anand Town Police Station. I had gone with the
weapons. I had not gone with the weapons not covered.
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Those weapons were given to Saheb. I was enquired by
the Saheb. I had not lodged any complaint. Reason for
not giving complaint was that, there was one person sitting
over there for giving the complaint. He was sitting there at
9:15 o' clock. I do not know what proceeding was carried
out after I had deposited those weapons. I stayed at police
station for nearly 20 minutes. It is true that, in this regard
I had not made any report to the police. On the day I had
gone to the police station my statement was not taken. It
is true that, my statement was taken the next day and in
that statement there is no description about the persons
whom I have seen or about their clothes."
16. Demistalkumar (PW-12) was portrayed by the prosecution to be an
eyewitness of the incident. He categorically stated that on 4th May,
2011 at 8:30 pm, he came to know that a scuffle had taken place
opposite the Radha Swamy chamber and hence, he went to the
said location. There, he found one person lying down in a bleeding
condition near a garden adjacent to the Mahendar Shah petrol pump.
Three assailants brandishing weapons like knife and gupti were
approaching to beat the person. On seeing Demistalkumar (PW12), two of the three assailants threw away their weapons and ran
away towards the bridge. Thereafter, the injured was boarded on to
a rickshaw and was sent for treatment. His relatives came and the
weapons were deposited at the police station.
17. In cross-examination, Demistalkumar (PW-12) admitted that someone
told him about the untoward incident whereupon he proceeded
towards the road and within three to four minutes, people gathered
at the crime scene. He stayed with the injured for about three to
four minutes. One man accompanied the injured in the rickshaw.
The witness also helped in placing the injured in the rickshaw and
his clothes got stained with blood in this process. After the injured
person had been taken to the hospital, he proceeded to the Anand
Town Police Station carrying the two weapons abandoned by the
offenders with him and reached there at 9:15 pm. However, he did
not lodge any complaint of the incident. The witness explained the
reason for not giving the complaint stating that a person was already
sitting at the police station at 9:15 pm for giving the report.
18. Having carefully sifted through and analysed the evidence of
Demistalkumar (PW-12), we find that he did not utter a single word
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Allarakha Habib Memon Etc. v.