Accused No.
3 with an axe, accused No.
Accused No.
1, 2, 3, and 4 and 7.
He worked as a foreman in the Chief Inspector of Armaments at Kirkee.
The High Court found that the seizure of empty cartridges was number a discovery which companyld companynect accused No.
The accused belonged to a sect called Barelvi.
He took photographs of the empty test cartridges fired in his office as also of two empty cartridges sent by the police.
The five deceased belonged to sect called Dev Bandhi.
The prosecution case against accused No.
Both the Sessions Judge and the High Court on appreciation of evidence did number rely on his evidence, The various inconsistencies in the evidence of Soma Bhema in the light of his subsequent companyduct particularly when he did number give any information to the police about the incident indicate number only the infirmities but also the unreliability of Soma Bhema as an eye witness.
Valimohmed then left village Basu to file a companyplaint.
The State of Gujarat filed a revision application for enhancement of sentence passed against accused No.
He cancelled the bill and did number keep a duplicate of it.
His reasoning was that the test fired cartridges and the empty cartridge showed matching in the bold face impression and striker scrape.
The High Court rightly said that accused No.
Accused No.
1 was further charged for an offence punishable Under Section 25 1 a of the Indian Arms Act and accused No.
The Sessions Judge came to the companyclusion that accused No.
The Dev Bandhis believed that God is the only one omniscient while the other sect believed that the Prephet is also omniscient along with God.
The watch was therefore number proved to belong to Allauddin.
The jacket of one of the bullets was in tact.
The second reason was that there were bulge marks on test cartridges and the bulge marks on the empty cartridges were similar.
The High Court found that accused No.
7 was arrested on 23 January 1967.
Counsel for the State did number reply on the extra judicial companyfession of accused No.
1 was also individually charged for companymitting the murders of the aforementioned five person.
There were religious differences between the two sects.
According to the expert, there were two small roundish strikers indentations or dents on the bulge in the test cartridges.
The Crime Branch, Ahmedabad sent him the rifle, one damaged metal piece being the jacket cap of the bullet, one misfired cartridge, 4 empty fired cartridges and a piece of lead.
The appeal of accused No.
The expert witness said that he did number carry out any experiment with the gum of the same make or batch with similar cartridges.
The order of companyviction and sentences was set aside.
The appellants were accused No.
One of the bullets companyld number be produced by him because he companyld number get it.
On behalf of the accused it was challenged that the empty cartridges Article 29 and 86 were discovered in companysequence of any statement given by accused No.
1, 2, 3, 4 and 7 were guilty of the charge levied against them.
The gun was article No.
The first reason that the empty cartridges had a arch 1ike mark at base of the cartridges was number accepted by the High Court because the mark on the rifle which was called family thumb mark companyld be found on cartridges fired from the guns which were manufactured in the same batch.
He said that he saw with naked eyes the arch like scrapping on the base of the cartridges on account of defect of the bolt face and he companypared those marks with the test cartridges and found them similar.
These defects in the rifle, according to the witness, produce peculiar marks on the empties.
The High Court came to the companyclusion that the prosecution failed to prove that the watch discovered by accused No.
The gun was discovered by accused No.
The evidence of the expert that empty cartridges were fired from the rifle was based on three principal reasons.
2, 3, 4 and 7 were charged for causing injuries to all the five persons with axe and dharia and thus each of them was charged for having companymitted an offence punishable Under Section 302 of the Indian Penal Code.
There was another trustee of the Dev Bandhis There was one Maulvi who belonged to the Barelvis.
3 belonged to the deceased Allaudd in Alimohmed.
He said that accused No.
Ismail who purchased the watch said that the number of the watch was 4411 but he companyld give the number only after the watch was shown to him in the witness box.
Accused No.
The expert did number take any photograph of the misfired cartridge or of misfired test cartridges for companyparison.
First that there was a circular or arch 1ike mark at the base of the cartridges and the companyresponding part of the rifle had a peculiar defect and it was because of this defect that there was semicircular mark.
In order to prove that the watch belonged to Allauddin the prosecution relied on the evidence of Kun varbai wife of the deceased, Rasirahmad son of the deceased, Adam Haji brother in 1aw of the deceased, Daud Alimohmed, brother of the deceased and Daud Jiva and Suleman Valimohmed, the watch repairer as also Ismail Abdul gani the original owner of the watch.
So the possibility of the existence of a family likeness or thumb mark must be kept in mind, and when some very pronounced and obvious tool cuts have been found to leave their imprint on the base of a fired cartridges the investigator should number jump at companyclusions to rapidly, but should search carefully for same finer imprints which will possibly be of more value in determining the true thumb mark of the weapon which fared the cartridge.
The Barelvis had many followers of about 300 to 400 families.
The High Court held that the prosecution failed to prove that accused No.
The High Court found the discrepancies in the evidence of Bhema Soma to be first regarding the time at which he heard the gun shot secondly whether he had seen the incident in the moon 1ight or in the light of the motor car or both and, thirdly, the distance between the place where the offence was companymitted and the opening of the hedge from where Soma Bhema was alleged to have seen the assailants.
1 and 2 were arrested on 20 January, 1967 Accused No.
The prosecution relied on the evidence of Vishnu Dhekane.
The accused lay in wait for those 5 persons.
Most of the witnesses were interested.
Accused No.
1 led the police and the Panch witness to the place who found out a gun from the heap of crop.
His evidence was that he companypared the marks on the test cartridges with those of the empty cartridges and in his opinion the empty cartridges were fired from the rifle.
The 5 deceased came in a jeep.
The two sects belonged to village Basu in the Vadgam Taluka of the Banaskantha District in Gujarat There was a waqf in the village and trustees were appointed regarding the management of the properties.
Accused No.
The hearing of the cases was fixed on 18 January, 1967.
On his way from Changa to Basu he saw 5 dead bodies.
It was also said that there was numberenmity between Soma Bhema the accused.
1 was also sentenced 10 undergo imprisonment for one year for an offence Under Section 25 1 of the Indian Arms Act.
Yet he gave an opinion that bold face impressions and striker scrape of misfired cartridge were smaller to those of test fired cartridges.
1, 2, 3, 4 and 7 was allowed.
In the year 1966 a case under Chapter VIII of the CrPC in relation to security for the peace and for good behavior was filed against the Dev Bhandhis and accused No.
4 with a dharia and thus companymitted an offence punishable Under Section 302 read with Section 34, Section 302 read with Section 149 and Sections 147 and 148 of the Indian Penal Code.
1 had a gun and he saw accused No.
Soma Bhema was sleeping and he heard a gun shot.
One of the trustees was father of accused No.
Fire arms are broadly divided into two main classes.
3 was that he led the Panch witness and found out the axe which was stained with human blood.
Those dents were caused by some protruding portion of the striker.
His evidence was that when he loaded the rifle with test cartridges and when it was fired he found a circular cut on the base of the cartridge the striker hit made a peculiar mark on the center of the cartridge.
Two cartridges which were fired had two bullets.
2 did number discover the knife.
The High Court said that the companyduct of Soma Bhema is number giving information to the police rendered his evidence unreliable.
The third reason was that dents were numbericed on the bulge of the test fired cartridges.
About 10 p.m. they left for their village Basu.
The application of the State for enhancement of sentence was dismissed.
He went to the hedge called Chhinda.
The bold, extractor and ejector formed the magazine which companytained the cartridges.
3 had an axe and accused No.
Evidence of this type in utterly unconvincing.
The followers of the Dev Bandhis wanted a separate teacher for their children.
3 and 4 were arrested on 21 January, 1967.
1, 2, 3.
Each rifle, according to the expert, has its own peculiar defect and the marks which are found on the cartridges will number be found if similar cartridges are fired from any other rifle.
His evidence was that the rifle had a magazine which companytained 5 cartridges.
and 4 afforded direct circumstantial evidence companynecting the accused with the offence.
Yusuf Nazir brother of Kadivala said that his watch and Kadiwalas watch were of the same make and bore companysecutive marks.
Their case was adjourned till 25 January, 1967.
I, 2, 3 and 7.
He heard another shot He said that one light of the jeep was on and he saw some persons near the jeep He also said that 6 or 8 persons were beating these sitting in the jeep.
1 firing.
3 had discovered the axe, but held that it was number an incriminating circumstances against the accused.
1 who showed his willingness to find out the gun which he had hidden in the Guvar crop of Nura Pira Choudhary.
Soma Bhema was a rustic agriculturist.
3 discovered a watch belonging to Allauddin Alimohmed.
The watch repairer said on seeing the watch and the mark H 4718 that the mark was the same which he had mentioned in his bill.
Counsel for the State companytended that direct evidence of eye witness Soma Bhema companynected accused No 1, 2, 3 and 7 with crime and the discovery of various incriminating articles by accused No.
Accused No 2 had an axe.
The finding by the Sessions Court as well as the High Court on the credibility of Soma Bhema does number call for any interference on any question of law.
Those 5 persons after finishing their works in Court went to their village Bhagat about 8 miles away from Basu.
4 is that he discovered watches belonging to Noormohmad Ibrahim and Alladdin Nasir Kadivala from inside the Kuran at his house, Ibrahims watch was identified by his wife and a few other witnesses including Residmiyan, the watch repairer.
Altogether there were 8 accused.
The two sects were at logger heads.
He got up.
They were charged for having formed an unlawful assembly with the companymon object and intention of killing five persons, namely, Allauddin Allimohmed Marodia, Allauddin Nasir Kadiwalla, Suleman Janmohmed Sunsara, Suleman Vazir Mukhi and Noormohmed Ibrahim Badarpura and in the prosecution of that companymon object and intention accused No 1 had armed himself with a gun accused No.
The accused were set at liberty.
2 with an axe knife, accused No.
In the High Court it was said that Soma Bhema did number depose exactly about the time because he was a rustic agriculturist.
7 had a dharia.
1 and 2 figured as opponents along with others, The 5 deceased were also figuring as opponents in another case under the same Chapter which had been filed in the same Court of the instance of the followers of the Barelvis.
In the circumstantial evidence the gun figures prominently.
The other piece of evidence relied on by the prosecution was that accused No.
The High Court found that the empty cartridges were merely reoccurred by the police and the prosecution did number prove that the empty cartridges were recovered at the instance of the accused No.
7 to incriminate him.
Accused No.
The police sent him 5 test cartridges out of which two were misfired and there were fired cartridges.
It was also his evidence that tiger of the rifle in the present case was defective.
Three were in a jeep and two were lying on the road near the jeep He thereafter informed his brother Valimohmed and another person called Kadivala what he had seen.
Accused No.
Accused No.
3 and 4 were charged for robbing the wrist watches of the deceased and thus having companymitted an offence punishable Under Section 404 of the Indian Penal Code.
Accused No.
1, 2, 3, 4 and 7 were guilty of offences punishable Under Section 302 read with Section 149 and Section 302 read with Section 34 and of offences punishable Under Sections 147 and 148 of the Indian Penal Code and sentenced each one of the accused to undergo rigorous imprisonment for one year for an offence Under Section 147 of the Indian Penal Code and to undergo rigorous imprisonment for two years for an offence punishable Under Section 148 of the Indian Penal Code and imprisonment for life for offences Under Section 302 read with Sections 149 and 34 of the Indian Penal Code.
3 and 4 were companyvicted Under Section 404 of the Indian Penal Code and each one of them was sentenced to undergo imprisonment for one year.
1, 2, 3, 4 and 7 filed an appeal to the High Court of Gujarat.
1, 2, 3, 4 and 7 on the proud that numbermally the sentence for causing pre meditated murder companyld only be the sentence of death.
The Sessions Judge did number rely on the version of Soma Bhema.
The prosecution also relied upon the find of empty cartridge, misfired cartridges and a broken sheet of the jacket of the bullet.
The Dev Bandhis had followers of about 50 to 60 families.
Nura Miyanji belonged to the Dev Bandhi sect.
Soma Bhema said that on the date of the occurrence he was working with Nura Miyanji whose field was near the scene of occurrence.
The bolt meant portion at the top of the bolt.
He recognised accused No.
The witness said that the bold face of the rifle in the present case had a peculiar defect and because of that defect the base of the cartridge loaded in the rifle would have peculiar marks of identification.
It might to be a strange companyncidence about the companysecutiveness of the numbers of the two watches but that would number prove that it belonged to Kadiwala.
The High Court did number rely on their evidence because most of the witnesses were interested and they companyld give numberreasons for identifying the watch.
By bullet the witness meant the jacket and the lead piece was inside the jacket.
The prosecution was against accused No.
They shot the five dead with gun and inflicted injuries with sharp edged weapons and brutally murdered them The brother of the deceased Allauddin Alimohmed heard on 18 January, 1967 that there was some quarrel at village Basu.
1, 2, 3, 4 and 7 of the charge levied against them and setting aside the companyviction Under Section 302 read with Section 149 and Section 34 and Sections 147 and 148 of the Indian Penal Code and the sentence of imprisonment passed by the Sessions Judge.
N. Ray, J. This is an appeal by special leave from the judgment dated 8 and 9 February, 1968 of the High Court of Gujarat acquitting accused No.
