Criminal Appeal Nos. 162, 406 and 695 of 2007. Case: Mahamadkhan Nathekhan Vs State of Gujarat. Supreme Court (India)

Case NumberCriminal Appeal Nos. 162, 406 and 695 of 2007
CounselFor Appellant: Sushil Kumar and D.G. Karia, Sr. Advs., Aditya Kumar, Sanjay Jain, Harpuneet Singh, Manisha T. Karia, Sushil Kr. Gupta, J.M. Pathan, L.R. Pathan, M.A. Sheikh and Kamal Mohan Gupta, Advs. and For Respondents: Hemantika Wahi, Pinky Behra, Preeti Bhardwaj and Swati Vaibhav, Advs.
JudgesMadan B. Lokur and C. Nagappan, JJ.
IssueArms Act, 1959 - Sections 25(A), 25(1); Evidence Act - Section 3; Indian Penal Code (IPC) - Sections 34, 114, 120(B), 201, 302; Code of Criminal Procedure, 1973 (CrPC) - Section 313
Judgement DateSeptember 10, 2014
CourtSupreme Court (India)

Judgment:

C. Nagappan, J.

1. All three appeals are preferred against the judgment dated 26.12.2006 in Criminal Appeal No. 865 of 1986 passed by the High Court of Gujarat at Ahmedabad.

2. Accused No. 1 Asaf Afkhan Kalandarkhan, accused No. 2 Mahamadkhan Nathekhan and accused No. 3 Vora Ismailbhai Daudbhai were tried for the charge Under Sections 302, 120(B) and 201 of Indian Penal Code and Section 25(A) of The Arms Act, 1959 for committing the murder of Firozbhai Abdul Latif by firing gun shot on the right side of his chest, when he was in the motor car of accused No. 3 in the early hours on 21.2.1984 in Sessions Case No. 44 of 1985 on the file of Additional Sessions Judge, Ahmedabad (Rural) at Narol. The Trial Court acquitted the accused from all the charges leveled against them. Challenging the same the State of Gujarat preferred appeal in Criminal Appeal No. 865 of 1986 on the file of the High Court of Gujarat at Ahmedabad and the High Court held that the charge of criminal conspiracy against accused Nos. 1 to 3 has not been proved by the prosecution and the offence Under Section 25(1)(a) of the Arms Act is not proved as against accused No. 3 and acquitted them of the said charges. At the same time, the High Court found accused Nos. 1 and 3 guilty of the offence punishable Under Section 302 read with Section 34 Indian Penal Code and accused No. 2 guilty for the offence punishable Under Section 302 read with Section 114 Indian Penal Code and further held accused Nos. 1 and 2 guilty of the offence punishable Under Section 25(1)(a) of the Arms Act. Accordingly, the High Court sentenced all the three accused to undergo rigorous imprisonment for life for the charge of murder and sentenced accused Nos. 1 and 2 to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/-, in default, to undergo rigorous imprisonment for six months for the offence under the Arms Act. Challenging their conviction and sentence all the three accused have preferred three independent appeals before this Court.

3. Briefly the prosecution case is as follows: Accused Nos. 1 and 3 were friends of deceased Firozbhai and their relationship was cordial. Accused No. 2 was also a common friend of them. Firozbhai was in the business of selling tyres of four wheelers and two wheelers and accused No. 3 was in the business of sale and purchase of motor trucks and was a broker in that field and he was helping Firozbhai to sell tyres to the traders at Savarkundla, a town under the district Bhavnagar. There were outstandings to be recovered from customers at Savarkundla and Firozbhai was interested in early recovery and at his instance accused Nos. 1 and 3 on 20.2.1984 agreed to accompany Firozbhai to Savarkundla sometime during afternoon hours. Firozbhai sold the tyres at Savarkundla on credit basis at the instance of accused No. 3 by taking only token amount and hence Firozbhai was keen that accused No. 3 should accompany him. The brother of deceased Firozbhai, Mohammed Usman was working in a cooperative bank in the same place and during the spare hours he was helping Firozbhai in his business. On 20.2.1984 Firozbhai told his brother Mohammed Usman of his plan to go to Savarkundla with accused Nos. 1 and 3 for collecting dues from his customers and requested him not to go to the bank on the next day so that he can attend to the business at the shop. Both the brothers took dinner in the night and at that time Firozbhai informed his wife Banu Bibi about his programme to go to Savarkundla and further told her that he was to go in the car with accused Nos. 1 and 3 and she need not worry because of severe cold. After dinner he left the home...

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