MUSTAK @ KANIO AHMED SHAIKHversusSTATE OF GUJARAT

360                      [2020]REPORTS
               SUPREME COURT    5 S.C.R. 360                [2020] 5 S.C.R.


A                  MUSTAK @ KANIO AHMED SHAIKH
                                        v.
                             STATE OF GUJARAT
                     (Criminal Appeal Nos. 488-489 of 2017)
B                                JUNE 18, 2020
            [R. BANUMATHI AND INDIRA BANERJEE, JJ.]
             Penal Code, 1860 – s.307 r/w. s.114 – Arms Act – s.25(1)(B)(a)
      – Bombay Police Act – s.135(1) – Attempt to murder – Prosecution
      case that victim, who was going to his laboratory was shot on face
C
      in his car from a motorbike driven by the appellant – The first
      accused was the pillion rider – The bullet was operated and removed
      – Thereafter, the statement of victim was recorded by the investigating
      officer – Both appellant and the first accused were arrested – The
      Trial court convicted the appellant and the first accused of the
D     offence punishable u/s.307 r/w. s.114 IPC and s.25(1)(B)(a) of the
      Arms Act r/w. s.135(1) of the Bombay Police Act – Both the
      complainant -driver of victim and the victim had identified the
      appellant – The Trial court sentenced the appellant and the first
      accused to undergo rigorous imprisonment for six years – The High
      Court enhanced the sentence of imprisonment for offence u/s.307
E
      r/w s.114 IPC to seven years instead of six – Before the Supreme
      Court, the appellant contended that identity of the appellant was
      not established – Held: The appellant was identified by both the
      victim and the complainant apart from pancha witness – Be that as
      it may, the testimony of an injured victim is sufficient for conviction
F     – The complainant had identified the appellant as the driver of the
      motor cycle – The Judicial Magistrate had corroborated
      identification of the appellant by the complainant in the Test
      Identification Parade – It is also clear that the appellant as well as
      the dummies were brought before the Judicial Magistrate before
      the witness arrived – The defence was not able to show any infirmity
G
      in the identification parade of the appellant which vitiates the
      identification – Further, the pancha witness testified to the recovery
      of the weapon in his presence, at the instance of the appellant and
      identified appellant in Court – Also, the prosecution had established
      from the ballistic report and the evidence of FSL experts that the
H
                                       360
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                         361


bullet that was extracted from the body of the victim, was fired from   A
the weapon recovered on the confession of the appellant – The
Trial court had successfully established the chain of events, linking
the crime to inter alia the appellant – Thus, the conviction and
enhancement of sentence imposed on appellant by the High Court
affirmed.
                                                                        B
      Dismissing the appeals, the Court
      HELD: 1. The Trial Court, in effect, found:
      (i) It had been established beyond any iota of doubt that
the victim had sustained bullet injuries. It had also been proved
that the incident had taken place and in the manner alleged.            C

      (ii) The contention of the defence that the injuries were
not so life threatening or grave or serious as to attract Section
307 of the Indian Penal code was not acceptable, considering the
testimony of three Medical experts who deposed with regard to
the gravity and seriousness of the injury.                              D
      (iii) The evidence of the FSL (Forensic Science Laboratory)
Expert, coupled with Exhibit 92 established that an offence
attracting the provisions of Section 307 of the Indian Penal Code
had taken place.
                                                                        E
     (iv) The recovery of the weapon in terms of Panchnama
(Exhibit 88) was proved beyond reasonable doubt.
      (v) Minor irregularities on the part of the investigation and,
in particular, the casual manner in which the Investigating Officer
(PW-14) testified would not vitiate the case of the Prosecution.
                                                                        F
      (vi) The Appellant as also first accused were duly identified
both by the complainant (PW-8) and the victim (PW-12) in course
of identification parade held on 1st and 3rd January 2003 and
they were also identified in Court. The mere fact that the
Identification Parades were held on different dates would not
render the identification unreliable.                                   G

       (vii) Both the eye-witnesses had identified the Appellant
and the first accused as being the persons who were on the
motorcycle. The motor cycle was driven by the Appellant and the
first accused was the pillion rider. Both the eye-witnesses had
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362            SUPREME COURT REPORTS                        [2020] 5 S.C.R.


A     seen the pillion rider, that is, the first accused handling the weapon.
      The victim clearly deposed that the first accused had fired at the
      victim at point blank range. The said witnesses remained
      unshaken despite extensive cross-examination.
            (viii) The concerned Executive Magistrate who conducted
B     the identification parade (PW-11) corroborated the evidence of
      PW-12 and PW-8 with regard to the identification and he also
      could not be shaken despite extensive cross-examination.
            (ix) The Panchnama being Exhibit-88 relating to recovery
      of the weapon was duly proved by the oral testimony of Pancha
C     witness (PW-10) who had also identified the Appellant.
            (x) The Prosecution had established from the ballistic report
      being Exhibit-92, and the evidence of FSL experts that the bullet
      that was extracted from the body of the victim, had been fired
      from the weapon recovered on the confession of the Appellant.
D     [Para 56][380-F-H; 381-A-H]
            2. The sessions Judge, correctly found that notwithstanding
      minor discrepancies, the Prosecution had successfully established
      the chain of events, linking the crime to inter alia the Appellant.
      [Para 57][382-A]
E           3. In this appeal, this Court is not concerned with the
      conviction of the first accused. The involvement of the Appellant
      in the offences alleged has duly been established inter alia by the
      injury of the victim; extraction of bullet from the body of the
      victim; linking of the bullet to the weapon recovered on the
F     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-10) of the Appellant as the person at whose instance the
G     weapon of offence was recovered. [Para 58][382-B-C]
           4. The finding of the Sessions Court that the Prosecution
      had not been able to establish the involvement of the third
      accused, or to establish that the Appellant and the first accused
      were part of a conspiracy, which had targeted prominent leaders
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MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                            363


of the Hindu community did not warrant interference. The High              A
Court rightly dismissed the Criminal Appeal No.1145 of 2006,
and allowed Criminal Appeal No.567 of 2006 filed by the
Respondent State, only to the extent of enhancing the sentence
of imprisonment inter alia of the Appellant to 7 years under
Section 307 read with Section 114 of the Indian Penal Code,
                                                                           B
considering the gravity and seriousness of the offence.
[Para 59][382-D-E]
      Iqbal and Another v. State of Uttar Pradesh (2015) 6
      SCC 623 : [2015] 6 SCR 239; Salim Akhtar @ Mota v.
      State of U.P (2003) 5 SCC 499 : [2003] 3 SCR 470;
      Bodhraj @ Bodha and Others v. State of Jammu &                       C
      Kashmir (2002) 8 SCC 45 : [2002] 2 Suppl. SCR 67 –
      referred to.
                        Case Law Reference
[2015] 6 SCR 239                 referred to             Para 41           D
[2003] 3 SCR 470                 referred to             Para 49
[2002] 2 Suppl. SCR 67           referred to             Para 49
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 488-489 of 2017.
                                                                           E
      From the Judgment and Order dated 29.09.2015 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 1145 of 2006.
     Ms. Meenakshi Arora, Sr.Adv., M.M. Saikh, Ms. Monisha Handa,
Mohit D. Ram, Ms. Jesal Wahi, Ms. Vishakha, Ms. Mamta Singh,
Ms. Hemantika Wahi, Advs. for the appearing parties.                       F
      The Judgment of the Court was delivered by
      INDIRA BANERJEE, J.
       1. This appeal is against a common judgment and order dated 29th
September 2015 passed by a Division Bench of the High Court of Gujarat     G
at Ahmedabad, dismissing Criminal Appeal No.1145 of 2006, filed by the
Appellant, partly allowing Criminal Appeal No.567 of 2006, filed by
Respondent State, affirming the judgment and order of conviction dated
18th January 2006, passed by Additional City Sessions Judge (Court No.6)

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364             SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A     at Ahmedabad City in Sessions Case No.245 of 2004, but enhancing the
      sentence of rigorous imprisonment from six to seven years, for offence
      under Section 307 of the Indian Penal Code.
              2. The learned Sessions Judge had, by his aforesaid judgment and
      order convicted the Appellant and one Salim alias Salim Chaurala Yakubhai
B     Patel, hereinafter referred to as the first accused, of offence punishable
      under Section 307 read with Section 114 of the Indian Penal Code and
      Section 25(1)(B)(a) of the Arms Act read with Section 135 (1) of the
      Bombay Police Act for targeting and attempting to murder one Dr.
      Jaydeep Patel, hereinafter referred to as the victim, by aiding and abetting
      each other. The third accused, Abhasbeg Habibbeg Mirza, was acquitted
C     of all the charges levelled against him.
              3. The learned Sessions Judge sentenced the Appellant and the
      first accused to undergo rigorous imprisonment for six years for offence
      under Section 307 read with Section 114 of the Indian penal Code, rigorous
      imprisonment for three years for offence under Section 25(1)(B)(a) of
D     the Arms Act and rigorous imprisonment of six months for violation of
      Section 135(1) of the Bombay Police Act, to run concurrently. By the
      judgment and order under appeal, the High Court has inter alia confirmed
      the judgment and order of conviction of the appellant and the first accused,
      passed by the Session Judge, but enhanced the sentence of imprisonment
E     for offence under Sections 307/114 of the IPC to seven years instead of
      six.
              4. It is the case of the Prosecution that the victim, who was going
      to his laboratory from his residence at around 4.45 p.m. on 3.12.2002, in
      his Indica Car bearing the Registration No. GJI HE 1575, driven by his
F     driver Jignesh G. Vyas, being the complainant, was shot near the Galaxy
      Cinema, from a pistol fired by the first accused, from a motorbike, driven
      by the Appellant, on which the first accused was the pillion rider.
             5. When the car had to slow down to negotiate a speed breaker,
      as it was approaching the Galaxy Cinema, the Appellant suddenly stopped
G     the motorbike beside the victim’s car, on the side the victim was sitting,
      and the first accused took out a pistol and fired at the victim, after which
      the Appellant and the first accused fled the scene of occurrence. The
      bullet pierced the glass window and hit the victim on his face.
           6. It appears that, after the victim was shot, he instructed the
      complainant to take him to the Hospital of Dr. Pareshbhai, which was
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MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                               365
             [INDIRA BANERJEE, J.]

nearby. However as Dr. Pareshbhai was not available, the victim was           A
taken to Anand Surgical Hospital of one Dr. Narender Sanghvi, at Siazpur,
where the victim was given preliminary treatment. On the advice of Dr.
Singhvi, that the victim should be taken to a better equipped hospital, the
victim was rushed to Sterling Hospital. In the meanwhile, the complainant
filed a complaint under Section 157 of the Criminal Procedure Code
                                                                              B
with the police who had rushed to the Anand Surgical Hospital on getting
information of the incident. The complaint was forwarded to Naroda
Police Station and registered as ICR 530/02.
       7. Thereafter, the police took up investigation, examined the
complainant, went to the place of occurrence, seized articles such as
pieces of broken glass etc. Later, the clothes worn by the victim when        C
he was shot, the mats of the car and a cover kept on the rear seat of the
car,described as carpet which contained human blood etc., and other
articles found inside the car were also seized. After the bullet was
operated and removed and the victim was in a position to be examined
the Investigating Officer recorded his statement. The first accused and       D
the Appellant were arrested on 30.12.2002 and 31.12.2002 respectively.
Identification Parade of the first accused was held on 2.1.2003 and that
of the Appellant, arrayed the second accused on 4.1.2003. While the
accused were in custody, the weapon used for the offence was recovered
by the police on the confession of the Appellant, from the place shown
by the Appellant.                                                             E

       8. Three weapons- a country made pistol, a pistol apparently made
in England and another pistol apparently made in China, were recovered
from underneath the earth in an open ground near the Shahalam Dargah,
described in the Panchnama under which they were seized. The weapons
were sent to the Forensic Science Laboratory for analysis and test as         F
also the bullet recovered from the body of the injured.
       9. The prosecution has alleged that the victim was targeted as a
sequel to the communal riots in Ahmedabad after the Godhra incident,
which had taken place in February 2002. The accused had entered into
a conspiracy to target and finish off prominent members of the religious      G
community, to which the victim belonged. The accused persons
accordingly started monitoring the movements of the victim, a prominent
member of a religious organization and its Secretary at the time of the
riots, who ran a pathological laboratory.
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366            SUPREME COURT REPORTS                         [2020] 5 S.C.R.


A           10. After the investigation was completed, charges were framed
      against the first accused, the appellant, arrayed as the second accused,
      and one Abhasbeg Habibeg Mirza arrayed as the third accused and the
      case was committed to the Sessions Court and registered as Sessions
      Case No.245 of 2004.
B           11. To substantiate its case, the prosecution examined following
      14 witness including the complainant and the victim, who were eye
      witnesses:-
            1. Haribhai Jethabhai
            2. Jaimini P Patel
C
            3. Mahesh Ravjibhai Patel
            4. Punambhai Ranchodbhai Patel
            5. Dr. Narendra P Sanghvi
            6. Devang M Parikh
D
            7. Pareshkumar P Jethwal
            8. Jignesh G. Vyas
            9. Dr. Anil Bansal

E           10. Pradip Mohanbhai Patel
            11. Mohmedyunus A Mansuri
            12. Dr. Jaydeep A Patel
            13. Dr. Shreekant Prabhakar
F           14. Gagabhai L khunti
             12. The Prosecution also relied upon the documentary evidence
      such as, the complaint filed by the complainant, medical reports/
      certificates of the victim, Panchnama prepared at the scene of
      occurrence, Panchnamas relating to recovery of articles, clothing etc.
G     Panchnamas relating to identification of the first accused and the
      Appellant (second accused), Panchnamas relating to recovery of
      weapons on the basis of the statement of the Appellant and the bullet
      extracted from the body of the victim, Forensic Science Laboratory
      Reports, the Lie Detection Analysis Report etc.

H            13. The victim who had himself deposed as the 12th Witness (PW-
      12) said that the incident had occurred around 4.45 p.m. on 3rd December
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                                 367
             [INDIRA BANERJEE, J.]

2002, when the victim was on his way to his pathological laboratory             A
from his home, in his car being a Tata Indica car, with Registration Number
GJI HE 1575, which was being driven by the complainant being his
driver. The victim deposed that he was seated at the back, on the left
side of the car. When the car was passing by the Galaxy Cinema, it
slowed down at a speed breaker. As the car negotiated the speed breaker,
                                                                                B
there was a noise from the left which the victim, later in cross
examination, explained as the sound of an approaching motorbike. On
hearing the noise, the victim turned in the direction of the motorbike,
which was by the side of the car, and saw that there were two persons
on the motor cycle. The pillion rider had a weapon, which looked like a
pistol, in his hand. The pillion rider opened fire. The victim was hit by the   C
bullet and he slumped to the right. He said he was taken to the hospital
of Dr. Pareshbhai which was near his laboratory but the Doctor was not
there. He then asked his driver to take him to Anand Surgical Hospital.
He was in severe pain. They reached Anand Surgical Hospital and
narrated the incident to Dr. Narender Sangvi. Dr. Sanghvi started
                                                                                D
treatment, took an X-ray and gave primary treatment but recommended
that the victim should be taken to a bigger hospital. Thereafter, the victim
was shifted to Sterling Hospital. The victim further deposed that after
examining diagnostic reports, the doctors of Sterling Hospital decided to
operate on the victim. The operation was performed on 4th December
2002 at the Sterling Hospital and the bullet was removed. The victim            E
remained admitted in Sterling Hospital for about 8 days as an indoor
patient, after which he was discharged on 11th December 2002. He said
that due to the injury, the bone below his left eye was broken for which
he had to undergo treatment for about six months after his discharge
from the hospital. He said that the vision of his left eye had deteriorated
                                                                                F
because of the injury.
       14. In course of his examination, the victim asserted that he had
seen and could recognize both the Motorcyclists - the driver and the
pillion rider, whom he had identified at the Test Identification parade,
and also in Court.
                                                                                G
      15. The complainant deposed as the eighth witness (PW-8). This
witness (PW-8) deposed that he had to slow down the car near Galaxy
Cinema as there was a speed breaker. At that time there was a bike
behind the car with two persons. The person in front had dark glasses
and a black cap. PW-3 said that just as he negotiated the speed breaker,
he heard the sound of firing and on turning to his left he found that the       H
368             SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A     persons on the bike were driving away towards Chandresh Nagar
      Society. The person sitting on the pillion had a weapon that looked like
      pistol or a revolver, which he put into the pocket of his jacket. When
      PW-8 looked behind he found that the left eye of the victim was bleeding.
             16. This witness confirmed that he first took the victim to the
B     hospital of Dr. Pareshbhai but the Doctor was not there. The victim was
      therefore taken to Anand Surgical Hospital of Dr. Narender Sanghvi,
      where the victim was given primary treatment. While the treatment was
      going on, the police arrived and took his complaint. This witness identified
      the complaint made by him and stated that the police officer had also
      signed the complaint in his presence. He confirmed that the facts stated
C     in the complaint were true.
            17. This witness also stated that in deference to the advice of Dr.
      Narender Sanghvi that the victim should be taken to a better equipped
      hospital, the victim was shifted to Sterling Hospital on the same day.
      On the next day, the complainant showed the police the place of
D     occurrence. The police made investigations.
             18. This witness (PW-8) stated that on 4th January 2003, the police
      summoned him to Gheekanta Court. The Court peon made this witness
      sit outside the Court for about 15 to 20 minutes after which he was
      taken to the Court room before the Judge, and the Judge asked him to
E     identify the accused from out of six persons. This witness identified the
      person driving the motorcycle. The person identified by PW-3 stated
      that his name was Mustak @ Kanio. After the identification, the Judge
      asked the complainant to go out.
             19. In Court this witness again identified the said person whom he
F     had earlier identified during the identification parade and who had stated
      that his name was Mustak @ Kanio. This witness also identified the
      person driving the motor cycle, being the first accused, in Court.
             20. This witness said that on the left back door of the vehicle
      there was a small glass with a steel strip fitted to it. The bullet came
G     from the said strip and the glass cracked. Pieces of glass fell on the
      back seat. The board at the back where speakers had been kept, the
      back seat belt as also the carpet on the seat were stained with blood.
      This witness also identified the clothes worn by the victim at the time of
      the incident.
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MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                                  369
             [INDIRA BANERJEE, J.]

       21. This witness was cross-examined at length. He, however,               A
remained unshaken in cross-examination. He confidently deposed that
the motorcycle was a Yamaha motor cycle. Though he did not know its
number. He confirmed that he had identified the second accused at the
identification parade and he had identified both the Appellant (second
accused) and first accused (Salim) in Court, as the Driver of the
                                                                                 B
motorcycle and the pillion rider, who had opened fire.
       22. The recovery of the weapon with which the offence was
committed, on the confession of the appellant, from underneath the ground
from the place shown by the Appellant has been proved by the oral
evidence of the Pancha Witness, Pradip Mohanbhai Patel who deposed
as the tenth witness (PW-10). This witness also identified the Appellant         C
in Court, as the person at whose instance three weapons were recovered
by the police, in his presence.
      23. The Judicial Magistrate who conducted the Test Identification
Parade namely Mohmedyunus A. Mansuri, deposed as the eleventh
witness (PW-11). He corroborated identification of the Appellant by the          D
complainant and the victim at the Test Identification Parades conducted
by him.
       24. Three doctors have deposed in this case. Dr. Narendra P.
Sanghvi who deposed as PW-5 stated that he gave primary treatment to
the victim, conducted tests and recommended that the victim be taken to          E
a bigger, better equipped hospital, considering the gravity of his injury.
9th Prosecution Witness (PW-9), Dr. Anil Bansal , Chief Medical Officer,
Sterling Hospital deposed that the victim had been brought to Sterling
Hospital at around 6:30 p.m. on 3rd December, 2002. He appeared to
have been injured by a bullet. This witness along with other Doctors had         F
physically examined the victim. It appeared that he had a wound of one
centimeter below the left eye but he was fully conscious and his pulse,
blood pressure etc. were normal. This witness deposed that the victim
was immediately shifted to the operation theatre where he was operated
upon and the bullet was taken out. The victim was discharged from the
hospital on 11th December 2002.                                                  G
       25. This witness also identified the certificate issued by the hospital
to the victim regarding his injuries and treatment. He said that the
certificate was issued in printed form but he identified his hand writing
and signature on the certificate. This witness observed that the injuries
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370            SUPREME COURT REPORTS                          [2020] 5 S.C.R.


A     sustained to the patient could be said to be serious because bullet had
      entered the neck of the patient from lower part of left eye.
             26. The 13th Prosecution Witness (PW-13), Dr. Srikant, a Surgeon
      said that on 4th December 2002 he along with his team of Doctors had
      performed surgery of the victim who had a bullet injury. The bullet was
B     lodged on the left side of the neck. This Doctor described how the bullet
      had been taken out. This Doctor also opined that the bullet was lodged in
      a vital part of the body.
             27. From the depositions of the witnesses named above and the
      documents relied upon, there can be no iota of doubt that the victim was
C     shot on 3rd December 2002 at around 4:45 p.m. near the Galaxy Cinema
      while he was on his way from his home to his pathological laboratory in
      his Indica Car driven by his driver, the complainant. Both the complainant
      (PW-8) and the victim (PW-12) have deposed that while the said car
      slowed down near Galaxy Cinema to negotiate speed breaker a motor
      cycle which was following the car pulled up to the left, the pillion rider
D     pulled out pistol and fired at the victim (PW-12) at point blank range and
      fled away. Both the complainant and the victim have as eye witnesses,
      identified the Appellant.
            28. The Appellant did not examine any witness. After the 14
      prosecution witnesses named above were examined the Appellant was
E     examined under Section 313 of the Criminal Procedure Code. His defence
      was of total denial.
             29. Ms. Meenakshi Arora, learned senior counsel appearing on
      behalf of the Appellant submitted that the Test Identification Parade of
      the Appellant had been conducted contrary to the rules of evidence and
F     failed to establish the identity of the Appellant. She argued that as per
      the case of the Prosecution, the only two eye witnesses were the
      complainant (PW-8) and the victim (PW-12). However, the Appellant
      who had been arrayed as the second accused had only been identified
      by PW-8.
G            30. From the judgment and order of the Sessions Court, duly
      affirmed by the High Court, it appears that the Appellant has been
      identified by both the victim (PW-12) and the complainant (PW-8) apart
      from the Pancha witness (PW-10) Be that as it may, the testimony of
      an injured victim is sufficient for conviction.
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MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                             371
             [INDIRA BANERJEE, J.]

       31. To impress upon this Court that the complainant being the        A
driver of the car could not have recognized the Appellant, Ms. Arora
pointed out that the complainant had, in his complaint stated “I saw then
two persons were on the back behind my car, out of them the person
plying had put on black goggles and black cap”. In his testimony in Court
he said:-
                                                                            B
      “…….I saw back side from centre mirror. At that time two
      persons were coming on bike after me, wherein the person in
      front had put on black glasses and back cap” (examination in
      chief)
      …...Thereafter on 4/1/2003 the police summoned me at                  C
      Gheekanta Court. I reached over there between 3.45 to 4.00
      O’ clock evening. The peon made me seated outside of court
      at the sitting place and I was again called after about fifteen
      to twenty minutes. I was taken in the Court room before the
      Judge and the Judge over there asked me my name, address
      etc. Thereafter asked me to identify the person I could identify      D
      from six persons. That I had identified a person standing third
      and fourth in the middle and caught and dragged his hand.
      The Judge asked name to this person and the person stated
      his name to be Mustak alias Kanio. On completion of the
      procedure the (Judge) asked me to go. (examination in chief)          E
      “….. It is true that, I have never seen any of the person seated
      on the motor cycle prior the incident. It is true that I saw only
      back of person seated in back of the motor cycle. Said motor
      cycle went away from the place of incident at a speed of about
      forty to fifty kilometer. It is true that, after the incident the     F
      motor cycle went away on rough road turning by left back
      side door of our car. Said motor cycle did not go from front
      of our car but turned on left side back door of our car and
      went away” (Cross-examination)
      It is true that I saw the motor cyclist, heard the blast, and the     G
      motor cyclists were turned towards Chandresh Nagar, all this
      was happened just within blink of eye ….
      It is true that at the very same time I saw the motor cyclists
      turning towards Chandreshnagar. It is true that the road on
      which our vehicle was, is very busy road. It is not true that it
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372             SUPREME COURT REPORTS                            [2020] 5 S.C.R.


A           was not the Yamaha Motor cycle but was the motor cycle like
            Yamaha. The witness empathetically states that, it was the
            Yamaha motor cycle only. It is true that, on occurrence of
            incident I did not come out from the car. For the first time I
            came out form the car after reaching to hospital of Dr. Paresh
            Shah, at that time Jaydipbhai was also taken out of car….
B
            It is true that especially about physical description of the
            persons ride on motor cycle I only knew that they could be
            twenty to twenty five years of age.
            It is true that, none of the person in identification parade
C           were wore gape or glasses. It is true that, none of the person
            from identification parade had subtle eye.
                                                           (cross-examination)
            32. Referring to the evidence of the complainant, as extracted
      above, as also the part of the complaint extracted above, Ms. Arora
D     emphatically argued that the complainant could not possibly have identified
      the Appellant with certainty as the Appellant had been wearing dark
      glasses and a cap, the motor cycle was behind and not in front of the car,
      the complainant had seen the Appellant from the rear mirror when the
      motor cycle was at a speed of 40-50 kilometers per hour and the motor
E     cycle had turned away within the blink of an eye, after the complainant
      turned around on hearing the pistol shot.
             33. With the greatest of respect, the evidence of the witnesses
      have to be read as a whole. Words and sentences cannot be truncated
      and read in isolation. The witness has categorically stated that he would
F     be able to identify and actually identified the driver of the motor cycle as
      the Appellant. The PW-11 being the Judicial Magistrate has corroborated
      identification of the Appellant by the complainant in the Test Identification
      Parade.
             34. Ms. Arora thereafter referred to Testimony of PW-11,
      Mohmedyunus A Mansuri, the Judicial Magistrate who conducted the
G
      Test Identification Parade and in particular the following portions:-
            “The accused of this case was brought before me in the court
            room at 16.30 hours on 2/1/2003, the name, address was asked
            to the accused and same was verified, they were made to sit
            in the court…..
H
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                        373
             [INDIRA BANERJEE, J.]

   …...Thereafter, called five dummy persons from outside              A
   through my peon. In the meantime the witnesses of the case
   had not come and my another peon had informed about they
   came at 16.35 o’clock.(examination in chief)
   ….. It is true that the accused was not produced covered in
   the veil…..                                                         B
   …...It is true that, physical description of none of the dummy
   are given in the panchnama. It is true that, in the yadi exhibit-
   64 it has been mentioned that the accused is aged about twenty
   to twenty five years. It is true that none among the dummy is
   aged 27 years…..                                                    C
   …..I did not ask the witness as to have you seen the accused
   before the identification parade or not.
   It is true that it was appeared from the yadi that two persons
   were the motor cyclist and had put on black goggles and black
   cap and were aged about twenty to twenty five years of age.         D
   It was also appeared from the yadi that the pillion rider had
   put on black jacket and black jeans. It is true that it was also
   mentioned in the yadi that the complainant can identify the
   motorcyclists and the witness can identify the person who
   executed fire. From yadi exhibit-64 I did not feel that the         E
   accused Salim was the driver of the motorcycle……
   It is true that, in spite of my instructions both the accused
   were not brought to me covered under veil at the time of
   identification parade. I have not done any proceedings for
   the police did not follow such clear instruction from me. It is     F
   true that from both the yadis I had realized that which witness
   could identify to which accused.
   It is true that, there is a corridor outside of my court room
   and thereafter the compound wall is situated. It is true that,
   too many members of the police and public are in both places
                                                                       G
   the corridor as well as compound. It is true that, I cannot say
   anything that if the witness and accused were introduced to
   me when the witness and the accused were brought to me…..
   ….At both times I did not feel that none of the dummy is fit
   and he should be sent back. I did not take into consideration
                                                                       H
374            SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A           the age, height, look and cloths of dummy. It is true that now
            even I am unable to give description of one dummy even…..
            …...It is true that, after arranging the accused with the dummy
            in line, my peon had gone to call the witness, this was
            happened at both the times. It is true that, I cannot say that
B           during both this time if any conversation could have taken
            between my peon and the witness…..
            …..It is true that, during both the panchnama I did not enquire
            to accused. It is true that, after completion of the panchnama,
            none of the witness from both did not inform that for which
C           reason he has identified the accused….”
             35. From the evidence of the PW-11, being the Judicial Magistrate,
      it appears that the Appellant as well as the dummies were brought before
      the Judicial Magistrate before the witnesses arrived. It is clear that the
      Appellant was duly identified by the eye-witnesses. The defence has
D     not been able to show any such infirmity in the Identification Parade of
      the Appellant which vitiates the Identification.
             36. The suggestion of there being many police men in the corridor
      as also members of the public insinuates that the witnesses may have
      been been tipped off by the police. Apart from the fact that there is
E     absolutely no evidence of any interaction between the witnesses and the
      policemen, the Judicial Magistrate has deposed that the Appellant was
      brought in before him, before the witnesses arrived. From the tenor of
      the oral evidence of the Judicial Magistrate, it is patently clear that he
      deposed truthfully and did not try to cover up any loopholes or lacunae.

F            37. Ms. Arora’s submission that the Sessions Court accepted that
      the identity of the Appellant had not been established, but at the same
      time convicted the Appellant on the basis of the testimony of the same
      witnesses, is difficult to accept. The portion of the judgment of the Trial
      Court relied upon by Ms. Arora is extracted hereinbelow:-
            30. It has been vehemently argued and, in my opinion, I may even
G
            venture to say that, the arguments are not entirely devoid of merit,
            that there are some doubts with regard to the identity of accused
            No.1 & 2 as being the perpetrators of the offence herein. There
            is some merit in the submission made on behalf of the defence
            that, though the accused Nos.1 & 2 were already in the custody
H           of the Naroda police on accused of their being arrested in
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                              375
             [INDIRA BANERJEE, J.]

      connection with some other offence, there is no worthwhile reason      A
      as to why their arrest was affected in the present offence nearly
      a week thereafter. There is further merit as to why since both the
      accused were already in police custody i.e. to say custody of the
      Naroda Police on the relevant dates, the identification parades
      were separately held on 01.01.2003 and 03.01.2003 respectively.
                                                                             B
      It is also necessary to note that, no satisfactory explanation has
      been forthcoming from the Investigating Officer PW-14, who has
      in my opinion, has testified in a rather casual manner and not too
      serious fashion…..”
       38. The judgment of the Sessions Court has to be read in entirety.
Even though the Trial Court made certain observations with regard to         C
the casual manner in which the Investigating Officer had testified, the
Trial Court found that the first accused and second accused had positively
been identified by both the concerned eye witnesses i.e., PW-12 and
PW-8.
      39. The relevant part of the judgment is extracted hereinbelow :-      D

      “31. It is required to be noted that, both the accused nos. I &
      2 have been positively identified in the course of valid
      identification parades by both the concerned eye witnesses
      i.e. to say PW-12 & PW-8 respectively as being the persons,
      who has come on the motor cycle driven by accused no.2 of              E
      which, the accused no.1 was a pillion rider and what further
      emerges is the undisputed and uncontroverted fact of the
      accused no.1 pulling out a pistol like weapon and firing it at
      Dr. Jaydeep Patel at a point blank range. The identification
      parades exhs. 65 and 67 respectively are corroborated by               F
      PW-11 being the executive magistrate and Mohmedyunus A.
      Mansuri and are further corroborated and supported by the
      testimonies of PW-12 & PW-8 respectively and despite
      extensive cross-examination by the Learned Advocate for the
      defence, the testimony of all the three witnesses has withstood
      the test of cross examination and the cumulative effect of such        G
      testimonies make me unhesitatingly come to a conclusion that,
      both the accused Nos. 1 & 2 were positively identified in the
      course of the identification parades by PW-12 & PW-8
      respectively……”
                                                                             H
376               SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A            40. We are unable to accept Ms. Arora’s submission that the
      High Court erred in dismissing the appeal and upholding the conviction,
      with the observation that the witnesses had extensively been cross-
      examined by the defence, but nothing incriminating had emerged in the
      cross-examination to disbelieve there evidence. It is a matter of record
      that both the witnesses had in the course of separate Test Identification
B
      Parades, positively identified the first accused as well as the Appellant
      herein.
             41. Ms. Arora’s submision that the Courts below had erred in
      holding that the Appellant had positively been identified by Prosecution
      Witnesses is also not sustainable. The identity of the Appellant has been
C     proved beyond reasonable doubt, by the eye-witnesses to the crime as
      well as the Pancha witness. It may be true that conviction based on
      erroneous identification and a faulty Test Identification Parade cannot
      be sustained. The proposition of law in Iqbal and Another vs. State of
      Uttar Pradesh1 cited by Ms. Arora is unexceptionable. However, in this
D     case, the Appellant had actually been identified by both the victim and
      the complainant and also in Court by the Pancha witness (PW-10), as
      observed above. The identification cannot be said to be erroneous. Nor
      did the Test Identification Parade suffer from such infirmity as to vitiate
      the identification itself.
E            42. Ms. Arora next submitted that the prosecution has not been
      able to establish the chain of custody of the bullet which was removed
      by Dr. Shrikant (PW-13) from the body of the victim. She referred to
      Dr. Shrikant’s deposition that:-
               “ After the surgery we gave the bullet to sister we took out from
F              body of the patient, Sister means Standing Nurse, I do not have
               person knowledge that she gave it to whom, we gave her loose
               bullet. It is true that in medico-legal case when any bullet is taken
               out from body of anyone, then the care should be taken that no
               scratches whatsoever appeared on such bullet or it does not get
               damaged in other way. I do not know anything as to such bullet
G              should be kept in free box and to be sent to the F.S.L. It is true
               that nowhere I have mentioned any description of said bullet.”
               (Cross-examination @ Pg. 118-119)”
            43. Ms. Arora further pointed out that the Investigating Officer
      being the 14th Prosecution Witness (PW-14) had in his evidence stated
H     1
          (2015) 6 SCC 623
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                               377
             [INDIRA BANERJEE, J.]

“ ….Today I did not recall that whether the bullet which was produced         A
before me by Sterling Hospital was in sealed condition or not…...”
(Cross examination).
       44. Ms. Arora argued that when conviction is based on firing of a
bullet, the Prosecution has to establish that the same bullet has been sent
for forensic examination. The Prosecution failed to do so. Ms. Arora          B
questioned the correctness of the following findings of the Trial Court:-
      “The panchnama Exh.82 again finds corroboration and therefore,
      though much has been made out with regard to the mode of handing
      over the bullet to the Investigating Officer not being in accordance
      with the provisions of law, I am of the opinion that, even if some      C
      irregularities are found to have taken place, the same cannot
      undermine and negate the prosecution version to the extent of
      giving a clean chit or thereby resulting in the acquittal of the
      accused Nos. 1 & 2 as sought for by the defence”
       45. We do not find any such error in the findings of the Session       D
Court to warrant interference. When there is a time gap between an
occurrence and the trial it is impossible for police/Investigating Officer
to recall minute details. Nor is it possible for a surgeon performing an
operation to remove a bullet from the body of a patient to throw light on
the chain of custody of the bullet, after it was made over to the attending
Nurse. There was sufficient incriminating evidence for conviction of the      E
Appellant.
       46. Ms. Arora also argued that conviction of the Appellant placing
reliance on alleged recovery of a weapon from an open ground cannot
be sustained. In support of her submission she referred to the testimony
of the Investigating Officer (PW-14) extracted hereinbelow:-                  F
      “…..On 5/1/2003 the accused Mustak Ahmedbhai Shaikh
      expressed his willingness to show the weapon used in this offence
      as well as two other weapons which were hide buried in the ground
      opposite of Shahalam……
                                                                              G
      we came to Shahalam Darwaja, where the accused told that the
      Jeep would no go further, therefore we get down, the accused
      walked ahead and from shahalam Dargah came into an open
      ground from a street on opposite side and he removed the sand
      from the ground and took out and showed a weapon in a cloth bag
      which were two Pistols and Tamanca for which a detailed                 H
378             SUPREME COURT REPORTS                             [2020] 5 S.C.R.


A            panchnama was drawn and seized and packed all the three
             separately and sealed them, a chit duly signed by the panchas
             was placed in it and were sealed.”
             47. Ms. Arora argued that the Prosecution could not have relied
      on recovery of a weapon from an open field after one month from the
B     date of the alleged incident. PW-14, Investigating Officer, could not stand
      the test of cross-examination with regard the description of the place of
      alleged recovery and the direction thereto. To buttress her arguments,
      Ms. Arora referred to the cross-examination of the PW-14 where he
      stated:-
C            “it is not true that the place from where the accused found the
             weapon is situated too far and deep from the main road. I do not
             recall now that after getting down from the Jeep and to reach to
             the place, it comes after three curves, or not, I do not recall now.
             It is true that too many residential houses comes on the way, I
             cannot say that what is situated in front of row of those residential
D            houses. It is true that the place from where the weapon was
             found out was open space, there was no traffic. I have not recorded
             statement of anyone form the residential houses situated nearby
             the said place.”
             48. In my considered opinion, minor discrepancies in evidence
E     and inability to recall details of the description of houses, roads and streets
      after several years, do not vitiate the evidence of recovery itself. The
      Appellant showed the police the spot where the weapons had been hidden
      under the sand. The Trial Court upon appreciation of evidence on record
      very rightly held:-
F            “Again providing positive corroboration to the entire version is the
             fact of the discovery of the muddamal weapon in terms of the
             panchnama exh.88 at the behest of accused no.2 which
             panchnama, positively establishes the recovery of the muddamal.
             The said panchnama derives independent corroboration and support
G            in the testimony of PW-10 Pradeep Mohanbhai Patel, who has
             not only positively identified accused No.2 but has also given a
             complete corroboration to the process reflected in the panchnama
             exh.88. The Panch witness has also, in my opinion, clearly
             withstood the test of extensive cross-examination and in my opinion,
             there is no reason to discard or disbelieve such witness.
H
    MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                           379
                 [INDIRA BANERJEE, J.]

         ……… The prosecution in my opinion, has successfully established      A
         the chain of events linking the tanking place of the incident,
         establishing the positive identity of accused Nos.1 & 2, recovery
         of the muddamal weapon at the behest of accused No.2.
      49. In support of her submission that recovery from an open place
accessible to all was vitiated and could not have been relied upon for        B
conviction of the Appellant, Ms. Arora cited the following judgments:-
         1. Salim Akhtar @ Mota v. State of U.P2
         2. Bodhraj @ Bodha and Others v. State of Jammu & kashmir3
       50. From the evidence and materials on record it cannot be said        C
that recovery of the weapon of offence was from an open place
accessible to all. The weapons were dug out from underneath the sand
in an open ground behind the Shah Alam Dargah.
        51. Ms. Arora finally argued that the Prosecution had failed to
prove motive and conspiracy which was essential to convict the                D
Appellant. However, where the firing had taken place and there were
eye witnesses to the firing, it was not necessary to establish a motive.
At the cost of repetition it is reiterated that both the Appellant and the
first accused were identified by the eye witnesses to the firing, being the
complainant (PW-8) and the Appellant.
                                                                              E
       52. The prosecution may not have been able to prove the greater
conspiracy of targeting the prominent leaders of the Hindu community.
The inability of the Prosecution to establish greater conspiracy led to the
acquittal of the third accused. It is well settled the minor discrepancies
in the evidence does not vitiate a conviction. The discrepancy if any in
the timing is insignificant. PW-8 in his cross-examination stated that the    F
incident took place between 4.45 to 5.00. p.m. on 3.12.2002. The victim
has said the incident occurred at around 4.45. p.m. They both stated that
the incident took place near Galaxy Cinema.
       53. In course of the trial, the Trial Court has considered the
evidence on record at length. It is reiterated that the eye witnesses to      G
the crime being the victim and the driver of his car, the complainant
confidently identified the Appellant and first accused and they could not
be shaken in cross-examination. PW-10 testified to the recovery of
2
    (2003) 5 SCC 499 Para 9-12
3
    (2002) 8 SCC 45 para 18                                                   H
380                SUPREME COURT REPORTS                         [2020] 5 S.C.R.


A     offence in his presence, at the instance of the Appellant and also identified
      the Appellant in Court. Considering the gravity of offence and the
      seriousness of the injury and the manner in which the victim was shot,
      there can hardly be any doubt that the attempt was to murder the victim.
      The High Court confirmed the judgment and order of conviction but
      enhanced sentence under Section 307 read with 114 of the Indian Penal
B
      Code to seven years instead of six.
             54. The Trial Court after considering the evidence on record and
      after hearing the Prosecution, the Appellant and the other accused found
      that the third accused was not present at the place of occurrence and
      there was no evidence to establish that he was part of any conspiracy.
C     The third accused was accordingly acquitted. The Sessions Court,
      however, found the Appellant and first accused guilty and convicted
      them of offences punishable under Section 307 read with Section 114 of
      the Indian Penal Code read with Section 25(1)(B)(a) of the Arms Act
      read with Section 135(1) of the Bombay Police Act for having committed
D     the offence of aiding and abetting each other in targeting and attempting
      to murder the victim.
             55. The Sessions Court sentenced the Appellant to undergo
      rigorous imprisonment for 6 years for offence under Section 307 read
      with Section 114 of the Indian Penal Code, rigorous imprisonment for 3
E     years for offence punishable under Section 25(1)(B)(a) of the Arms Act
      and rigorous imprisonment for 6 months for violation of Section 135(1)
      of the Bombay Police Act. The sentences were to run concurrently and
      the time spent by the Appellant in judicial custody was ordered to be set
      aside while computing the total period of sentence.

F           56. The Trial Court, in effect, found:
            (i)      It had been established beyond any iota of doubt that the
                     victim had sustained bullet injuries. It had also been proved
                     that the incident had taken place and in the manner alleged.
            (ii)     The contention of the defence that the injuries were not so
G                    life threatening or grave or serious as to attract Section 307
                     of the Indian Penal code was not acceptable, considering
                     the testimony of three Medical experts who deposed with
                     regard to the gravity and seriousness of the injury.
            (iii)    The evidence of the FSL (Forensic Science Laboratory)
H                    Expert, Mukesh N. Joshi coupled with Exhibit 92 established
MUSTAK @ KANIO AHMED SHAIKH v. STATE OF GUJARAT                               381
             [INDIRA BANERJEE, J.]

           that an offence attracting the provisions of Section 307 of        A
           the Indian Penal Code had taken place.
   (iv)    The recovery of the weapon in terms of Panchnama (Exhibit
           88) was proved beyond reasonable doubt.
   (v)     Minor irregularities on the part of the investigation and, in
           particular, the casual manner in which the Investigating           B
           Officer (PW-14) testified would not vitiate the case of the
           Prosecution.
   (vi)    The Appellant as also first accused were duly identified
           both by the complainant (PW-8) and the victim (PW-12) in
           course of identification parade held on 1st and 3rd January        C
           2003 and they were also identified in Court. The mere fact
           that the Identification Parades were held on different dates
           would not render the identification unreliable.
   (vii)   Both the eye-witnesses had identified the Appellant and
           the first accused as being the persons who were on the             D
           motorcycle. The motor cycle was driven by the Appellant
           and the first accused was the pillion rider. Both the eye-
           witnesses had seen the pillion rider, that is, the first accused
           handling the weapon. The victim clearly deposed that the
           first accused had fired at the victim at point blank range.        E
           The said witnesses remained unshaken despite extensive
           cross-examination.
   (viii) The concerned Executive Magistrate who conducted the
          identification parade (PW-11) corroborated the evidence
          of PW-12 and PW-8 with regard to the identification and             F
          he also could not be shaken despite extensive cross-
          examination.
   (ix)    The Panchnama being Exhibit-88 relating to recovery of
           the weapon was duly proved by the oral testimony of
           Pradeep Mohanbhai Patel (PW-10) who had also identified
                                                                              G
           the Appellant.
   (x)     The Prosecution had established from the ballistic report
           being Exhibit-92, and the evidence of FSL experts that the
           bullet that was extracted from the body of the victim, had
           been fired from the weapon recovered on the confession
           of the Appellant.                                                  H
382                SUPREME COURT REPORTS                        [2020] 5 S.C.R.


A            57. The sessions Judge, in our considered opinion, correctly found
      that notwithstanding minor discrepancies, the Prosecution had
      successfully established the chain of events, linking the crime to inter
      alia the Appellant.
              58. In this appeal, we are not concerned with the conviction of
B     the first accused. The involvement of the Appellant in the offences alleged
      has, in our opinion, duly been established inter alia by the injury of the
      victim; extraction of bullet from the body of the victim; linking of the
      bullet to the weapon recovered on the confession of the Appellant upon
      Forensic examination; the evidence of two eye-witnesses to the crime,
      namely the complainant (PW-8) and victim (PW-12); Identification by
C     the complainant and the victim of the Appellant in the Identification
      Parades as also in Court; Identification by the Pancha witness (PW-10)
      of the Appellant as the person at whose instance the weapon of offence
      was recovered.
             59. The finding of the Sessions Court that the Prosecution had not
D     been able to establish the involvement of the third accused, or to establish
      that the Appellant and the first accused were part of a conspiracy, which
      had targeted prominent leaders of the Hindu community did not, in our
      view, warrant interference. In our view, the High Court rightly dismissed
      the Criminal Appeal No.1145 of 2006, and allowed Criminal Appeal
E     No.567 of 2006 filed by the Respondent State, only to the extent of
      enhancing the sentence of imprisonment inter alia of the Appellant to 7
      years under Section 307 read with Section 114 of the Indian Penal Code,
      considering the gravity and seriousness of the offence.
            60. For the reasons discussed above, we dismiss this Appeal and
F     affirm the conviction of the Appellant and the sentence imposed upon
      the Appellant as enhanced by the High Court.


      Ankit Gyan                                                  Appeals dismissed.


G




H