Supreme Court of India
ALLARAKHA HABIB MEMON ETC.versusSTATE OF GUJARAT
- Citation
- 2024 INSC 590
- Decided
- 8 August 2024
- Disposal
- Appeal(s) allowed
Holding
The conviction under Sections 302 and 120B IPC was unsustainable because the prosecution failed to prove the guilt of the accused beyond reasonable doubt, leading to the quashing of the judgments and acquittal of the appellants.
Summary
The appellants were convicted for murder under Sections 302 and 120B of the IPC based on the testimony of two alleged eyewitnesses – a police constable (PW‑12) and the first informant (PW‑11). The Supreme Court found that PW‑12, who had actually brought the weapons to the police station, never lodged a formal complaint and his statement was never recorded, raising serious doubts about the FIR and the reliability of his testimony. PW‑11’s version was contradicted by PW‑12 and other material facts, making his presence at the crime scene doubtful and his testimony unreliable. The prosecution’s reliance on uncorroborated confessions recorded by a medical officer, blood‑group evidence, and undisclosed seizure procedures was held inadmissible or insufficient to link the accused to the crime. Consequently, the Court concluded that the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. The convictions and sentences were set aside and the appellants were acquitted.
Issues considered
- The FIR was not properly recorded and should be treated as a post‑investigation document under Section 162 CrPC.
- Whether the testimonies of PW‑12 and PW‑11 are trustworthy and can form the basis of conviction.
- Admissibility of confessions recorded by a medical officer under Section 26 of the Evidence Act.
- Whether blood‑group evidence and seizure panchnama without proper attestation can establish a link between the accused and the crime.
- Whether the prosecution established the guilt of the accused beyond reasonable doubt.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 162
- Constitution of Indias. Article 136
- Indian Evidence Act, 1872s. 21, s. 26, s. 27
- Indian Penal Code, 1860s. 120B, s. 302
Subjects
EyewitnessesSo‑called eyewitnessesProjected eyewitnessConcurrent findings by courts belowConcurrent convictionCrime weaponsWeapons of offenceIdentification of the accusedTest Identification ParadeFIR post‑investigation documentDisclosure statements not provedAdmissions of the accusedConfessions ex‑facie inadmissibleNo new fact discovered in disclosureCrime scene already known to policeGuilt not proved beyond doubtSeizure panchnamaForensic Science Laboratory reports
Judgment
[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.
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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 accused-
appellants 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. 349
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. 2828-
2829 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. 351
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
352 [2024] 8 S.C.R.
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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. 353
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 [2024] 8 S.C.R.
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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. 355
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
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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 accused-
appellant 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
[2024] 8 S.C.R. 357
Allarakha Habib Memon Etc. v. State of Gujarat
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).
358 [2024] 8 S.C.R.
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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 (PW-
11) 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
[2024] 8 S.C.R. 359
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 (PW-
11) 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
360 [2024] 8 S.C.R.
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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
[2024] 8 S.C.R. 361
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.
362 [2024] 8 S.C.R.
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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 (PW-
12), 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
[2024] 8 S.C.R. 363
Allarakha Habib Memon Etc. v. State of Gujarat
about the presence of the first informant, Mohammad Arif Memon
(PW-11) at the scene of occurrence. He claimed to have picked up
two weapons used by the accused, i.e., one big knife and a gupti
and had presented them at the police station around 9:15 pm on
the very day of the incident. He also stated that he did not submit
any report/complaint of the incident because he saw that someone
was already sitting at the police station at 9:15 pm for giving the
report/complaint.
19. We find it improbable and totally unacceptable that a police constable
had seen the incident and had 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. Demistalkumar (PW-12)
explained in his cross-examination that he did not give a report about
the incident because he noticed the presence of someone at the
police station who was sitting there from 9:15 pm to give the report.
However, as per the record, no report was admittedly presented at
the police station by any person from the complainant side. No police
personnel deployed at the Anand Town Police Station corroborated
the version of Demistalkumar (PW-12) that someone had come to
the police station at 9:15 pm for giving a report of the incident.
20. Since the Police Constable, Demistalkumar (PW-12) claiming to
be an eyewitness to the heinous assault had reported at the police
station with the crime weapons, there was no reason whatsoever as
to why his statement would not have been recorded immediately on
his arrival at the police station. From the circumstances discussed
above, a reasonable doubt is created in the mind of the Court that
the statement of Demistalkumar (PW-12) would definitely have been
recorded in the daily diary (roznamcha) but his version may not have
suited the prosecution case and that is why, the daily diary entry
was never brought on record. Non-production of the daily diary is a
serious omission on part of the prosecution.
21. There cannot be any doubt that the first version of the incident as
narrated by the Police Constable, Demistalkumar (PW-12) would
be required to be treated as the FIR and the complaint lodged by
Mohammad Arif Memon (PW-11) would be relegated to the category
of a statement under Section 161 CrPC and nothing beyond that.
The same could not have been treated to be the FIR as it would be
hit by Section 162 CrPC. Evidently thus, the prosecution is guilty of
364 [2024] 8 S.C.R.
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concealing the initial version from the Court and hence, an adverse
inference deserves to be drawn against the prosecution on this count.
22. The FIR (Exhibit-79) was registered on the basis of the oral statement
of the first informant (PW-11) recorded at Krishna Medical Hospital,
Karamsad by S.N. Ghori, PSI (PW-17). The witness (PW-17) stated
in cross-examination that Demistalkumar (PW-12) met him at the
police station at around 2:30 am on 5th May, 2011. No information
about the incident was received at the police chowki. He came to
know at about 10:00 pm that some cognizable offence had been
committed. The said information was based on a wardhi received
from the hospital which was issued by Dr. Varun Patel. On receiving
this wardhi, he proceeded to the Krishna Medical Hosptial, Karamsad
at about 10:00 pm where he met the first informant. He stayed at
the hospital for about one and a half hours. The witness, S.N. Ghori,
PSI (PW-17) also admitted that the complainant did not mention
in the complaint that he had received any injuries in the incident.
Thus, there is a huge cloud of suspicion on the very threshold of
the prosecution case i.e. the time and manner of lodging of the FIR
(Exhibit-79).
23. Demistalkumar (PW-12) was also made to identify the accused
persons in the dock, but that is another story which we shall consider
at a later stage. The witness identified the accused appellants as the
offenders. However, we find that the lame attempt by PW-12 to make
dock identification of the accused in his deposition recorded after
nearly two and a half years of the incident is absolutely flimsy and
unacceptable. The witness had not given out either the names or the
description of the features of the accused in his police statement and
thus, if at all, the prosecution was desirous of getting the accused
identified at the hands of this witness, then he should have been
made to identify the accused persons in a Test Identification Parade
during the investigation. Thus, the identification of the accused
by Demistalkumar (PW-12) for the first time in the dock is totally
unbelievable and unacceptable.
24. Now, we shall proceed to discuss the evidence of the star prosecution
eyewitness, namely, Mohammad Arif Memon (PW-11), the first
informant. The witness (PW-11) narrated the details of the incident
as were stated by him in an oral statement given to S.N. Ghori, PSI
(PW-17) on 4th May, 2011 at the Krishna Medical Hospital, Karamsad
[2024] 8 S.C.R. 365
Allarakha Habib Memon Etc. v. State of Gujarat
which was treated to be the FIR (Exhibit P-79). In addition to the
facts as set out in the FIR, the witness also alleged that he also
received an injury on his head when he fell down as a result of the
push given by Mohmedfaruk @ Palak. A very important fact which
emerges from the evidence of the first informant (PW-11) is that
he categorically stated that he gave a complaint of the incident by
personally appearing at the Anand Town Police Station. He further
stated that after he had given the complaint, the police called him
next morning after the incident and that he had pointed out the
crime scene to the police. Only thereafter, he signed the complaint.
Apparently thus, from the version set out in the examination-in-chief
of the first informant (PW-11), there is a grave discrepancy regarding
the time and place of lodging the complaint.
25. In cross-examination, the first informant (PW-11) stated that he
reached the Krishna Medical Hospital, Karamsad at around 9:00
pm. He did not take any treatment for the injuries sustained by him
in the incident. By the time he reached Krishna Medical Hospital,
his uncle Mohammed Iqbal Memon, father of the deceased, was
already present there and he told the doctors that the attack was
made by sharp weapons. They proceeded from the hospital to the
Anand Town Police Station which is at a distance of about 10 kms
from the hospital and he gave the complaint at the Police Station. No
police personnel accompanied him when he proceeded from Krishna
Hospital. When he reached the hospital, he noticed the injuries
suffered by the deceased. They went to the police after meeting
the doctor. The witnesses referred to in the complaint were present
with him when he drafted the complaint which was submitted at the
Police Station about an hour, after his companions had reached
there. He admitted that before giving the complaint, a discussion was
held amongst the relatives as to the manner in which the complaint
was to be drafted and lodged. However, the witness explained that
he drafted the complaint describing the incident as he had seen it.
A pertinent suggestion was given to the witness (PW-11) in cross-
examination that he could not describe the number and location of the
injuries caused to the deceased because he was not present on the
spot and did not see the incident. He denied the said suggestion. He
admitted that the factum of his going to the petrol pump along with
the deceased was known only to him, Mohammad Sohail (deceased)
and Mehboobbhai. Approximately, five minutes after the assault, the
366 [2024] 8 S.C.R.
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injured was taken to the hospital. He was bleeding from his head. He
was lifted and made to sit in the rickshaw. However, from the persons
who lifted the injured, only Irfanbhai Memon received blood stains on
his clothes. The witness (PW-11) admitted that neither he nor any
other person received blood stains on their clothes or elsewhere.
He was confronted with his previous version and admitted that he
did not mention in the complaint (Exhibit P-79) that he had received
an injury on his head in the incident. Going by the above version
of the witness (PW-11), manifestly, the complaint which he gave at
the police station never saw the light of the day and seems to have
been intentionally withheld. Furthermore, PW-11 categorically stated
that he signed the complaint on the morning after the incident and
pursuant to the site inspection by the police, which creates a genuine
doubt in the mind of the Court that the FIR (Exhibit-79) seems to
have been created at a later point of time.
26. As per the deposition of S.N. Ghori, PSI (PW-17), the oral statement
of Mohammad Arif Memon (PW-11) was taken down in writing at
the Krishna Medical Hospital, Karamsad and the same was treated
to be the complaint (Exhibit-79) which came to be registered as CR
No. 141 of 2011 for offences punishable under Sections 302, 120B
and 323 IPC. The formal FIR was exhibited during the deposition
of S.N. Ghori, PSI (PW-17) who stated that on 4th May, 2011, while
performing duty as Police Sub-Inspector (PSI) in the Sardar Bagh
Police Station of Anand Town, he got information that three persons
had caused injuries to Mohammad Sohail (deceased) near Shah
petrol pump on Bhalej Road at about 8:00 pm. He was apprised
that the injured was first taken to Nagar Palika Hospital, Anand in
an autorickshaw and from there, the father of the injured took him to
Krishna Medical Hospital, Karamsad in his van for further treatment.
Upon this, the PSI (PW-17) proceeded to Shri Krishna Medical
Hospital, Karamsad where he met the first informant Mohammad
Arif Memon (PW-11) who narrated the details of the incident which
was drawn up as the complaint. The witness marked Exhibit P-79
on the complaint and proved his signature thereupon.
27. The complaint (Exhibit P-79) was registered as a formal FIR by
witness K.N. Waghela, Head Constable (PW-16) who testified that
he had been performing duties as a Head Constable in Anand
Town Police Station for last four years. He was present on duty on
4th May, 2011. The complainant Mohammad Arif Memon (PW-11)
[2024] 8 S.C.R. 367
Allarakha Habib Memon Etc. v. State of Gujarat
filed a complaint against Mohmedfaruk @ Palak and others to S.N.
Ghori, PSI (PW-17) at 11:30 pm. The said complaint was forwarded
to the police station Anand Town and accordingly, CR No. 141/2011
was registered, and investigation was assigned to DhananjaySinh
Waghela, Police Inspector (PW-18). The station diary of the Anand
Town Police Station was proved as Exhibit P-97 wherein, the factum
of registration of the FIR is recorded. The witness also stated that a
telephonic wardhi forwarded by Dr. Varun Patel, Shri Krishna Medical
Hospital, Karamsad was also entered in the station diary on which
the witness (PW-16) as well as S.N. Ghori, PSI (PW-17) had signed.
The said wardhi was prepared at 10:00 pm whereas, the complaint
was received at the police station at 11:30 pm.
28. Certain very significant incongruencies come to the fore on a
minute evaluation of the evidence of Mohammad Arif Memon,
the first informant (PW-11), K.N. Waghela, Head Constable (PW-
16) and S.N. Ghori, PSI (PW-17). Whilst Mohammad Arif Memon
(PW-11), the first informant categorically stated that he drafted the
complaint and submitted it at the Anand Town Police Station, but in
total contradiction thereto, S.N. Ghori, PSI (PW-17) stated that the
complaint was registered on the basis of the oral statement of the
first informant, Mohammad Arif Memon (PW-11) which he took down
in writing at the Krishna Medical Hospital, Karamsad. On a careful
perusal of the complaint (Exhibit P-79) which subsequently came to
be registered as the FIR, it is manifest that no time of recording is
mentioned thereupon. Another very relevant fact which manifests from
the complaint/FIR is that there is no endorsement as to the date and
time on which the said FIR reached the Court concerned. Going by
the highlighted excerpts (supra) from the testimony of Mohammad
Arif Memon (PW-11), the actual complaint filed by him at the police
station seems to have been withheld and there are genuine reasons
to hold that the FIR is a post investigation document.
29. This Court in the case of State of A.P. v. Punati Ramulu and Others4
held that when the police officer does not deliberately record the FIR
on receipt of information about cognizable offence and the FIR is
prepared after reaching the spot after due deliberations, consultations
and discussion, such a complaint cannot be treated as FIR and it
4 1994 Supp (1) SCC 590
368 [2024] 8 S.C.R.
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would be a statement made during the investigation of a case and
is hit by Section 162 CrPC. The relevant paras of the judgment in
this regard are reproduced hereinbelow: -
“5. According to the evidence of PW 22, Circle Inspector,
he had received information of the incident from police
constable No. 1278, who was on ‘bandobast’ duty. On
receiving the information of the occurrence, PW 22 left
for the village of occurrence and started the investigation
in the case. Before proceeding to the village to take up
the investigation, it is conceded by PW 2 in his evidence,
that he made no entry in the daily diary or record in the
general diary about the information that had been given to
him by constable 1278, who was the first person to give
information to him on the basis of which he had proceeded
to the spot and taken up the investigation in hand. It was
only when PW 1 returned from the police station along
with the written complaint to the village that the same
was registered by the Circle Inspector, PW 22, during the
investigation of the case at about 12.30 noon, as the FIR,
Ex. P-1. In our opinion, the complaint, Ex. P-1, could not
be treated as the FIR in the case as it certainly would be a
statement made during the investigation of a case and hit
by Section 162 CrPC. As a matter of fact the High Court
recorded a categorical finding to the effect that Ex. P-1 had
not been prepared at Narasaraopet and that it had “been
brought into existence at Pamaidipadu itself, after due
deliberation”. Once we find that the investigating officer
has deliberately failed to record the first information
report on receipt of the information of a cognizable
offence of the nature, as in this case, and had prepared
the first information report after reaching the spot after
due deliberations, consultations and discussion, the
conclusion becomes inescapable that the investigation
is tainted and it would, therefore, be unsafe to rely
upon such a tainted investigation, as one would not
know where the police officer would have stopped to
fabricate evidence and create false clues. Though we
agree that mere relationship of the witnesses PW 3 and
PW 4, the children of the deceased or of PW 1 and PW 2
[2024] 8 S.C.R. 369
Allarakha Habib Memon Etc. v. State of Gujarat
who are also related to the deceased, by itself is not enough
to discard their testimony and that the relationship or the
partisan nature of the evidence only puts the Court on its
guard to scrutinise the evidence more carefully, we find
that in this case when the bona fides of the investigation
has been successfully assailed, it would not be safe to
rely upon the testimony of these witnesses either in the
absence of strong corroborative evidence of a clinching
nature, which is found wanting in this case.”
(emphasis supplied)
30. In this regard, we are also benefitted by a recent judgment of this
Court in the case of Babu Sahebagouda Rudragoudar and Others
v. State of Karnataka,5 the relevant portion of which reads as under: -
“47. Apparently, thus, the close relatives of the deceased
had gone to the police station in the late hours of
19th September itself. If this version was true then, in natural
course, these persons were bound to divulge about the
incident to the police and their statement/s which would
presumably be about an incident of the homicidal death
would have mandatorily been entered in the Daily Dairy of
the police station if not treated to be the FIR. However, the
Daily Diary or the Roznamcha entry of the police station
corresponding to the so called visit by the relatives of the
deceased to the police station was not brought on record
which creates a grave doubt on the genuineness of the FIR
(Exhibit P-10). The complainant (PW-1) admitted in cross
examination that the Poujadar came to his house and he
narrated the incident to the officer who scribed the same
and thereafter, the complainant appended his signatures
on the writing made by the Poujadar. However, ASI Tikota
Police Station (PW-18) testified on oath that complainant
(PW-1) came to the police station and submitted a written
report which was taken as the complaint of the incident.
He did not state anything about any complaint
being recorded at the house of the complainant
prior to lodging of the report. Thus, there is a grave
5 [2024] 5 SCR 174 : 2024 OnLine SC 561
370 [2024] 8 S.C.R.
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contradiction on this important aspect as to whether
the report was submitted by the complainant (PW-1)
in the form of a written complaint or whether the oral
statement of complainant (PW-1) was recorded by the
police officials at his home leading to the registration
of FIR (Exhibit P-10). The non-production of the Daily
Dairy maintained at the police station assumes great
significance in the backdrop of these facts. Apparently
thus, the FIR (Exhibit P-10) is a post investigation
document and does not inspire confidence.”
(emphasis supplied)
31. In addition to all the above noted inconsistencies and contradictions
in the evidence of the prosecution witnesses, this Court has to be
conscious about the deposition of Demistalkumar (PW-12) who
has categorically stated that when he reached the crime scene,
he saw only the injured lying on the road with the three assailants
brandishing sharp weapons towards Mohammed Sohail, and
about four minutes later, some other people came there. Thus, the
evidence of Demistalkumar (PW-12) makes the very presence of
the first informant, Mohammad Arif Memon (PW-11) at the crime
scene doubtful.
32. Had there been an iota of truth in the claim of the first informant,
Mohammad Arif Memon (PW-11) that he was an eyewitness to the
occurrence then, there was no reason as to why he did not divulge
the details thereof to Police Constable, Demistalkumar (PW-12)
present at the spot. The natural reaction of any prudent man would
be to make a complaint of the incident to the policeman present at
the spot.
33. Furthermore, the Police Constable, Demistalkumar (PW-12), stated
that he got blood stains while placing the injured in the rickshaw.
On the other hand, the first informant, Mohammad Arif Memon
(PW-11), however, admitted that he did not receive any blood stains
either on his hands or on his clothes at the time when the injured
was placed inside the rickshaw. Rather, he did not acknowledge
that Demistalkumar (PW-12) also helped in placing the victim on
to the rickshaw. Had there been any iota of truth in the version of
the first informant, Mohammad Arif Memon (PW-11) that he had
seen the assault being made on his cousin brother, Mohammad
[2024] 8 S.C.R. 371
Allarakha Habib Memon Etc. v. State of Gujarat
Sohail (deceased) and that he had helped in lifting the injured and
placing him in the rickshaw then, it is impossible that he would not
have received the blood stains from the blood oozing out from the
multiple sharp weapon injuries suffered by Mohammad Sohail. As
per Demistalkumar (PW-12), when he reached the crime scene, the
victim was lying on the ground and no one else was to be seen near
him other than the assailants. Thus, the first informant, Mohammad
Arif aMemon (PW-11) seems to have abandoned his own cousin
brother who was lying on the road in gravely injured condition
creating a further doubt on his very presence at the spot when the
incident occurred.
34. The first informant, Mohammad Arif Memon (PW-11) also stated that
after Mohammad Sohail had been assaulted by the accused-appellant
with sharp weapons and had fallen on the ground, two persons
namely Mehboob Abdul Rehman Memon and Irfanbhai Memon
also came at the spot. The complainant and Irfanbhai Memon took
Mohammad Sohail to the Nagar Palika Hospital for treatment. The
said Mehboob Memon and Irfanbhai Memon were not examined by
the prosecution even though they were most material witness for
unfurling a true picture of the story which creates further doubt on
the truthfulness of the prosecution case.
35. In total contradiction to the above version of the first informant (PW-11),
Demistalkumar (PW-12) stated that he saw only one person taking
the injured in the rickshaw. Thus, the claim made by Mohammad Arif
Memon (PW-11) that he and Irfanbhai Memon both took Mohammad
Sohail to the hospital is contradicted by Demistalkumar (PW-12)
who is an independent witness. The first informant, Mohammad
Arif Memon (PW-11) also stated that he lodged the complaint at
the Anand Town Police Station which fact is also contradicted by
the evidence of K.N. Waghela, Head Constable (PW-16) and S.N.
Ghori, PSI (PW-17) as noted above.
36. The first informant, Mohammad Arif Memon (PW-11) admitted in his
cross-examination that after Mohammad Sohail’s father Iqbalbhai,
Sikander Abdul Karim Chokshi, Munafbhai Farooqbhai Memon and
Mustaq Mohammad Siddiq Memon arrived at the Krishna Medical
Hospital, Karamsad, the incident was discussed in presence of all
who had gathered there. He had noticed the injuries caused to the
deceased when he reached Krishna Medical Hospital, Karamsad. In
372 [2024] 8 S.C.R.
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the background of the discussion made above, these incongruencies,
even though minor, reinforce the doubt created in the mind of the
Court regarding the presence of the first informant, Mohammad Arif
Memon (PW-11) at the crime scene. Thus, the argument advanced by
learned counsel for the accused appellants that the star prosecution
eyewitness Mohammad Arif Memon (PW-11) was not present at the
crime scene deserves acceptance.
37. Another important aspect which was elicited in the cross-examination
of (PW-11) is that the fact regarding the deceased having gone to
the petrol pump for taking fuel was known only to two of them and
one Mehboob Abdul Rehman Memon. In this background, it is highly
improbable that the accused persons would have known in advance
that Mohammad Sohail would be available at the petrol pump at that
particular moment and that they got time and opportunity to conspire
together and made extensive preparations for launching an assault
on the victim by taking advantage of his presence at the petrol pump.
Thus, we are of the view that the testimony of the first informant,
Mohammad Arif Memon (PW-11), the star witness of prosecution, is
not trustworthy and reliable as the same is contradicted on material
aspects by numerous material facts and circumstances which we
have discussed above. There is no option but to discard the testimony
of the first informant, Mohammad Arif Memon (PW-11).
38. The other eyewitness to the incident who was examined on behalf of
the prosecution was the Police Constable, Demistalkumar (PW- 12).
We have already discussed his evidence and have doubted the
attempt made by the witness to identify the accused-appellant for the
first time in the dock. Hence, the testimony of the Police Constable,
Demistalkumar (PW-12) also does not help the prosecution in linking
the accused-appellant with the crime.
39. So far as Mustaq (PW-13) is concerned, who was treated to be an
eyewitness of the incident and whose testimony was relied upon by
the trial Court as well as the High Court, suffice it to say that there
are ample circumstances on record which deny the claim of the
eyewitness that he had seen the alleged assault been made on the
deceased. Firstly, the name of Mustaq (PW-13) does not figure in
the FIR (Exhibit P-79) as an eyewitness to the incident. Furthermore,
when he was examined under Section 161 CrPC, he categorically
stated that he was at his house and that the information of the
[2024] 8 S.C.R. 373
Allarakha Habib Memon Etc. v. State of Gujarat
incident was given to him by the father of the deceased, Mohammad
Iqbal Memon (PW-14). In this background, when the witness was
confronted during cross-examination, he could not explain the grave
improvement. Thus, we have no hesitation in holding that, Mustaq
(PW-13) was falsely portrayed to be an eyewitness of the incident,
and his testimony cannot be relied upon.
40. The trial Court as well as the High Court, placed extensive reliance
on the confessions of the accused appellants Mohmedfaruk @ Palak
Safibhai Memon and Amin @ Lalo recorded by the Medical Officer, Dr.
Arvindbhai (PW-2) while preparing the injury reports of the accused.
41. We find that these so-called confessions are ex-facie inadmissible
in evidence for the simple reason that 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 the Medical
Officer, Dr. Arvindbhai (PW-2) in the injury reports of Mohmedfaruk @
Palak and Amin @ Lalo would be clearly hit by Section 26 of the
Indian Evidence Act, 1872 (hereinafter being referred to as ‘Evidence
Act’). As a consequence, we are not inclined to accept the said
admissions of the accused as incriminating pieces of evidence
relevant under Section 21 of the Evidence Act. The circumstance
regarding identification of place of incident at the instance of the
accused is also inadmissible because the crime scene was already
known to the police and no new fact was discovered in pursuance
of the disclosure statements.
42. The trial Court as well as the High Court heavily relied upon the
FSL reports (Exhibits 111-115) to hold that blood group found on
the weapons of offence incriminated the accused for the crime as
the same matched with the blood group of the deceased. In this
regard, it is suffice to say that the two weapons which were picked
up by Demistalkumar (PW-12) from the place of occurrence were
formally seized at the Anand Town Police Station around 2:30 am on
5th May, 2011. Only one of the panchas Mohammad Hussain (PW-
5) was examined at the trial. The seizure panchnama (Exhibit -38)
records that the three accused who had inflicted deadly blows to the
deceased with dagger, gupti and knife, threw away their weapons
near the garden and fled away from the crime scene and that police
personnel brought all the weapons to the police station. However,
the panchnama (Exhibit P-38) does not bear the signatures of the
374 [2024] 8 S.C.R.
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police constable, Demistalkumar (PW-12) 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 (Exhibit
P-38) because it suffers from the lacuna of not being attested by the
witness who had actually presented the weapons at the police station.
In addition, thereto, we may further note that Demistalkumar (PW-
12), the police constable who deposited the weapons at the police
station, did not state in his evidence as to whom he had given the
knife and the gupti which he picked up from the crime scene. These
weapons were seized vide seizure panchnama (Exhibit-38) which
was admittedly prepared at 2:30 am. However, the Police Constable,
Demistalkumar (PW-12) stated that he reached the police station at
about 9:15 pm and stayed there for only 20 minutes. These infirmities
create a doubt on the very process of seizure of the weapons.
43. The 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. We may reiterate that the testimony
of the so-called eyewitnesses has already been discarded above by
holding the same to be doubtful. Thus, even presuming that the FSL
reports (Exhibits 111-115) 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. In
this regard, reliance can be placed on the judgment of Mustkeem
alias Sirajudeen v. State of Rajasthan,6 wherein this Court held
that sole circumstance of recovery of bloodstained weapon cannot
form the basis of conviction unless the same was connected with
the murder of the deceased by the accused. The relevant portion is
extracted hereinbelow:-
“19. The AB blood group which was found on the clothes
of the deceased does not by itself establish the guilt of the
appellant unless the same was connected with the murder
of the deceased by the appellants. None of the witnesses
examined by the prosecution could establish that fact.
The blood found on the sword recovered at the instance
6 [2011] 9 SCR 101 : (2011) 11 SCC 724
[2024] 8 S.C.R. 375
Allarakha Habib Memon Etc. v. State of Gujarat
of Mustkeem was not sufficient for test as the same had
already disintegrated. At any rate, due to the reasons
elaborated in the following paragraphs, the fact that
the traces of blood found on the deceased matched
those found on the recovered weapons cannot ipso
facto enable us to arrive at the conclusion that the
latter were used for the murder.”
(emphasis supplied)
44. On a perusal of the deposition of the Investigating Officer (PW-18),
we find his evidence on the aspect of disclosure statements made
by the accused-appellant leading to the recoveries to be totally
perfunctory and unacceptable. The witness did not elaborate upon
the words spoken by the accused-appellant at the time of making
the disclosure statements.
45. On a threadbare analysis of the entire record, we do not find that
the prosecution examined any witness who had deposed about the
link evidence/safe custody of the mudammal articles right from the
time they were received at the police station and seized till the time
the same reached the FSL. Hence, otherwise also, the FSL report
(Exhibits 111-115) pales into insignificance. Investigating Officer
(PW-18) deposed that he arrested the accused persons. A detailed
enquiry was made from all three accused-appellants, and they were
examined for the injuries found on their bodies. Thereafter, all the
accused-appellants conveyed their willingness to show the place
of the offence and thereafter, panchnama as per Section 27 of the
Evidence Act was prepared. Since the place of incident was also
known to police, this disclosure is irrelevant. Search of the houses
of the accused-appellant was undertaken in presence of the panch
witnesses and a big knife was seized from the house of the accused
Mohmedfaruk @ Palak, vide panchnama (Exhibit-52).
46. Hence, we are of the firm view that 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.
47. By and large, this Court while exercising jurisdiction under Article
136 of the Constitution of India will not interfere with the concurrent
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findings recorded by the courts below. But 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.
48. Upon an overall appreciation of the evidence available on record, we
are of the considered opinion that the prosecution has failed to lead
convincing evidence establishing the guilt of the accused appellants
beyond all manner of doubt so as to hold the accused appellants
responsible for the crime. Hence, the conviction of the accused
appellants as recorded by the trial Court and the sentences awarded
to them vide judgment and order dated 13th October, 2014 and so
also the judgment dated 18th February, 2019 rendered by learned
Division Bench of the High Court of Gujarat rejecting the appeals
preferred by the accused appellants do not stand to scrutiny. The
appellants deserve to be acquitted by giving them the benefit of doubt.
49. Resultantly, the appeals are allowed, and the impugned judgments
dated 13th October, 2014 and 18th February, 2019 passed by the
trial Court and the High Court, respectively are hereby quashed
and set aside.
50. The accused appellants are acquitted of the charges. Accused
appellants Allarakha Habib Memon and Amin @ Lalo Aarifbhai Memon
are on bail and need not surrender. Their bail bonds are discharged.
51. Accused-appellant Mohmedfaruk @ Palak Safibhai Memon, shall be
released forthwith, if not required in any other case.
52. Pending application(s), if any, shall stands disposed of.
Result of the case: Appeals allowed.
†
Headnotes prepared by: Divya Pandey
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