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2015 DIGILAW 1238 (GUJ)

State of Gujarat v. Noormahamad

2015-12-03

K.S.JHAVERI, R.P.DHOLARIA

body2015
JUDGMENT : K.S. Jhaveri, J. 1. By way of this appeal the State has challenged the judgment and order of the learned Additional Sessions Judge, Bharuch dated 31st March 1995, whereby the present respondent-original accused is acquitted in Sessions Case No. 175 of 1994 of charges under sections 323, 302 and 506 of the Indian Penal Code and section 135 of the Bombay Police Act. 2. It is the case of the prosecution that complainant-Yakubbhai Umarji is father of Zahedabano. Accused-Nurmohammed got Zahedabano married against the wishes of the complainant, abducted her and kept her in his custody. The complainant and villagers warned him and demanded that Zahedabano be handed over to them, but he did not pay heed to them. Thereafter, complainant forcibly took Zahedabano to his home. The complainant Yakubbhai Umarji, witness No. 1, and his brother Abdul Umarji (deceased) were going towards mosque to offer prayer at about 12.30 hours on 18/03/93. Abdul Umarji was 50 steps ahead of the complainant. Other villagers too were proceeding towards mosque. When Abdulbhai was passing by the accused's house, accused had abruptly inflicted two knife blows one after one on the left side of his brother's abdomen by holding him by his neck. The complainant rushed there and held his brother with arms while he was falling on the ground. At that time, the complainant sustained third knife blow on the backside of right wrist as accused-Nurmohammed was about to inflict third knife blow to his brother. The surrounding people gathered. Someone, at the instance of the complainant, went to take rickshaw. In the meanwhile accused rushed with long stick. The surrounding people said, "Babu, do not do that." The accused said, "Along with your brother, let me kill you too." By saying so, he gave a stick blow to the complainant. The complainant rushed to his legs and knees of both legs sustained stick injuries. Thereafter, Abdul Umarji was brought to Bharuch Civil Hospital by rickshaw of one Divan where doctor Mandaliya, witness No. 1 at exhibit No. 6 declared him to be dead after examination. He conducted postmortem examination on his body. 3. On these allegations, complaint was given against the accused. Investigation having been carried out and charge sheet having been filed against the accused the case was committed to Sessions Court and, ultimately, trial had commenced and charges have been framed. He conducted postmortem examination on his body. 3. On these allegations, complaint was given against the accused. Investigation having been carried out and charge sheet having been filed against the accused the case was committed to Sessions Court and, ultimately, trial had commenced and charges have been framed. The accused pleaded not guilty and claimed to be tried. 4. In order to prove the case against the present respondent-original accused under sections 323, 302 and 506 of the Indian Penal Code and section 135 of the Bombay Police Act, the prosecution has examined the following witnesses: -:: Oral evidence ::- Eye witnesses:- 1) Witness No.1 Yakub Umarji Patel, exhibit No.14, Complainant, injured and deceased's brother 2) Witness No. 6 Asif Umarji Mansuri, exhibit No. 23 3) Witness No. 7 Mustak Abdulla Umarji Patel, exhibit No. 24, deceased's son 4) Witness No. 8 Lukman Yakubbhai Patel, complainant's son and nephew of deceased Medical evidence:- 1) Witness No. 1 Dr. Arvindkumar Mohanlal Mandaliya at exhibit No. 6, the Medical Officer, who conducted post mortem on the dead body of deceased Abdul Umarji and treated Yakub Umarji Panch witnesses:- 1) Witness No. 3 Mahmadbhai Umarjibhai Abharam, panch witness of local place, exhibit No. 18 2) Witness No. 4 Abdulla Umarji Patel, exhibit No. 20, panch of seizure panchnama drawn in respect of seizing accused blood stained clothes, knife and stick. 3) Witness No. 5 Rameshchandra Kashibhai Patel, exhibit No. 22, panch of seizure panchnama drawn in respect of seizing accused blood stained clothes, knife and stick. 4) Witness No. 9 Umarji Asmalbhai, exhibit No. 26, panch of inquest panchnama Other witnesses:- 1) Witness No. 10 Yakub Ahmad Patel, exhibit No. 31 2) Witness No. 11 Zahedaben Yakubbhai, exhibit No. 33, complainant's daughter Police witnesses:- 1) Witness No. 13 Pushpaben Bansilal Modi, exhibit No. 41, Police Station Officer, who registered the offence 2) Witness No. 12 Durjansing Natwarsinh, Investigating Officer, exhibit No. 40 3) Witness No. 14 Hushenali Rasulbhai Kadiwala, exhibit No. 45, P.S.I. of Bharuch Rural Police Station and Investigating Officer -:: Documentary evidence ::- 1) Exhibit No. 8 - the certificate issued by the Medical Officer, Civil Hospital at Bharuch, in respect of injuries sustained by complainant Yakubbhai Umarji 2) Exhibit No. 9 - original P.M. notes dated 18/03/94 prepared by the Medical Officer, Civil Hospital at Bharuch after conducting post mortem of deceased. 3) Exhibit No. 19 - detailed panchnama of place of occurrence dated 18/03/94 drawn in the presence of panchas 4) Exhibit No. 21 - panchnama of physical conditions of accused Babu Usman, arrest panchnama and panchnama drawn on 19/03/94 in respect of seizure of slate coloured bush-shirt, brown coloured pant having spots, Rampuri knife and stick 5) Exhibit No. 27 - inquest panchnama of dead body dated 18/03/94 6) Exhibit No. 28 - panchnama dated 18/03/94 drawn in respect of seizure of clothes seized from the dead body of deceased and produced by P.C. Mahendrasinh. 7) Exhibit No. 32 - map of place of occurrence dated 26/04/94 8) Exhibit No. 42 - Vardhi dated 18/03/94 was got registered by H.C. Zinabhai Ramjibhai on duty at the Civil Hospital on the basis of Dr. Mandaliya's vardhi 9) Exhibit No. 43 - yaadi dated 18/03/94 addressed to the Medical Officer, Bharuch Hospital for giving treatment to the complainant Yakub Umarji 10) Exhibit No. 44 - yaadi dated 18/03/94 addressed to the Medical Officer for conducting P.M. on the dead body of Abdulbhai Umarji 11) Exhibit No. 46 - Yaadi dated 20/03/94 addressed to Mamlatdar, Bharuch for making map of physical conditions of place of occurrence 12) Exhibit No. 47 - A copy of dispatch entry of muddamal forwarded to F.S.L. for examination 13) Exhibit No. 48 - Analysis Report dated 26/08/94 of Regional Forensic Science Laboratory, Surat 14) Exhibit No. 49 - Serological Report dated 16/08/94 of Regional Forensic Science Laboratory, Surat 15) Exhibit No. 50 - Notification issued under section 37(1) of the B.P. Act 5. Dr. Arvindkumar Mohanlal Mandalia, PW-1, Exh.6 had examined complainant-Yakubbhai Umarji Patel and had also performed postmortem of deceased-Abdulbhai Umarji Patel. He had recorded following injuries on the person of the complainant: (i) Swelling on right knee. It pains when said part is pressed. (ii) Swelling on left knee. It pains when said part is pressed. (iii) A cut on left fore-arm. Dr. Arvindkumar, PW-1 having performed postmortem of the deceased had recorded the following observations: (i) Cut wound on left side of chest. (ii) Stab wound on left Hypochondriac region. (iii) Internal injuries on the body of deceased, viz. Injuries on chest as exhibited at column No. 17, injury No. 1, blood stains and blood clotting thereon; external injuries No. 2 and 3 on stomach having dimension of 2 cm., etc. 6. Dr. (ii) Stab wound on left Hypochondriac region. (iii) Internal injuries on the body of deceased, viz. Injuries on chest as exhibited at column No. 17, injury No. 1, blood stains and blood clotting thereon; external injuries No. 2 and 3 on stomach having dimension of 2 cm., etc. 6. Dr. Arvindkumar, PW-1 had concluded that all the injuries caused to the deceased were result of use of sharp-edged weapon. All the injuries were caused prior to death of deceased. Injuries No. 1, 2 and 3 were on vital parts of the body. Injuries No. 2 and 3 and its resultant internal injuries led to death of the deceased. 7. Looking to the evidence of PW-1, namely, Dr. Arvindkumar Mohanlal Mandalia, Medical Officer, we are of the opinion that it is the case falling under section 302 of the Indian Penal Code. However, the so called eye witnesses are relatives and the Trial Court has rightly observed that scene of offence or genesis of offence is not coming out, because blood stains are not found at the scene of offence. 8. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent of the offences charged against him. Being aggrieved by and dissatisfied with the judgment and order of the learned Additional Sessions Judge, Bharuch dated 31st March 1995, in Sessions Case No. 175 of 1994, the appellant-State has preferred the present appeal before this Court. 9. Mr. L.R. Pujari, learned APP appearing for the State has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused notwithstanding voluminous evidence against him and contended that the trial Court ought not to have acquitted the accused person. He submitted that the prosecution has successfully proved its case through the evidence of witnesses. He submitted that this appeal may be allowed by setting aside the impugned judgment. 10. On the other hand learned advocate for the respondent-accused has contended that the trial Court has rightly appreciated the evidence on record and acquitted the accused person of the charges levelled against him. He submitted that this appeal may be allowed by setting aside the impugned judgment. 10. On the other hand learned advocate for the respondent-accused has contended that the trial Court has rightly appreciated the evidence on record and acquitted the accused person of the charges levelled against him. It is also submitted that so far as acquittal appeals are concerned, the law is well settled and by taking us through the impugned judgment, he submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 11. We have heard learned APP appearing for the appellant-State as well as learned advocate for the respondent. We have also gone through the oral as well as documentary evidence on record. From the material on record, it is clear that no independent witnesses have been examined by the prosecution. All witnesses, who are described as eye witnesses, are relatives. In view of this and considering various decisions of Honourable Apex Court, when two views are possible, this Court should not interfere with the order of acquittal recorded by the trial Court. It is also required to be noted that the principles which would govern and regulate hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 12. Further, in the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. Further, in the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 13. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 14. Even in the case of State of Goa V. Sanjay Thakran & another, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. 14. Even in the case of State of Goa V. Sanjay Thakran & another, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 15. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of M.P. reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 16. In the case of Luna Ram Vs. Bhupat Singh and Ors., (2009) SCC 749, the Apex Court in paras-10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 17. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]" 18. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, AIR 1981, SC 1417, wherein it is held as under: "This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 19. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondent of the charges levelled against them. We are in complete agreement with the reasonings given and the findings arrived at by the Court below in the impugned judgment. We, therefore, find no reasons to entertain this appeal. 20. In our view the Trial Court has rightly appreciated the evidence and has rightly recorded acquittal. The present Criminal Appeal preferred against acquittal deserves to be dismissed. Accordingly it is dismissed. The judgment and order of the learned Additional Sessions Judge, Bharuch is upheld. Bail bonds stand discharged. We, therefore, find no reasons to entertain this appeal. 20. In our view the Trial Court has rightly appreciated the evidence and has rightly recorded acquittal. The present Criminal Appeal preferred against acquittal deserves to be dismissed. Accordingly it is dismissed. The judgment and order of the learned Additional Sessions Judge, Bharuch is upheld. Bail bonds stand discharged. Record and Proceedings, if lying here, be sent to the Court below forthwith.