26 October 2020


Judgments

Supreme Court

Mustak @ Kanio Ahmed Shaikh v. State of Gujarat

MANU/SC/0489/2020

18.06.2020

Criminal

When there is a time gap between an occurrence and the trial, it is impossible for police/Investigating Officer to recall minute details

Present appeal is against a common judgment and order passed by a Division Bench of the High Court dismissing Criminal Appeal filed by the Appellant, partly allowing Criminal Appeal, filed by Respondent State, affirming the judgment and order of conviction passed by Additional City Sessions Judge.

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, 1860 (IPC) 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 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.

When there is a time gap between an occurrence and the trial, it is impossible for police/Investigating Officer to recall minute details. There was sufficient incriminating evidence for conviction of the Appellant. 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.

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 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 IPC 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. The sessions Judge correctly found that notwithstanding minor discrepancies, the Prosecution had successfully established the chain of events, linking the crime to the Appellant.

In this appeal, present Court is not concerned with the conviction of the first accused. The involvement of the Appellant in the offences alleged has duly been established 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. The conviction of the Appellant and the sentence imposed upon the Appellant as enhanced by the High Court confirmed. Appeal dismissed.

Tags : Conviction evidence credibility

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