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Gujarat High Court · body

2016 DIGILAW 2023 (GUJ)

State of Gujarat v. Yusuf Ahmad Razakazi

2016-09-08

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : ANANT S. DAVE, J. This appeal under Section 378 (1) (3) of the Code of Criminal Procedure, 1973 (for short, “Code 1973”) is preferred against the judgment and order dated 28.10.2005 rendered in Sessions Case No. 37 of 2004 by learned Presiding Officer, 4th Fast Track Court, Surat, whereby the respondents are acquitted of offences under Sections 143, 147, 148, 149, 504, 302 read with Section 34 of the Indian Penal Code, as the prosecution failed to prove its case beyond reasonable doubt. 2. The genesis of the prosecution is the complaint dated 12.10.2003 in which the reference was made to the meeting of Sunni Vohra Community held at MA High School at Kathor, Taluka-Kamrej, for discussion of the appointment of office-bearers and a dispute regarding issuance of marriage certificate by the Trust. At the time of meeting in presence of police personnel from Kamrej Police Station where an amicable solution between two groups with regard to the dispute was to be arrived and, thereafter, members of the community dispersed and as per first informant victim had some altercation with son of accused no. 4 and, at that time, accused no. 3-Ayyubbhai Ahmad Harif, accused no. 1 viz. Yusuf Ahmed Razakazi, accused no. 2 viz. Yakub Mahammad Dhalech and accused no. 5, Abubakar Mohammad Ishak came in a maruti van and started assaulting the victim and all the persons caught hold of the victim and son of accused no. 4 viz. Osama Usmangani, a juvenile had given two to three blows over the abdomen of the victim and as a result thereof victim fell down on the ground and was taken to the hospital, where he was declared dead. The complaint was registered with Kamrej Police Station for the offence under Sections 143, 147, 148, 149, 504, 302 read with Section 34 of the Indian Penal Code. 2.1 At the end of investigation charge-sheet was filed, case was committed to the Sessions Court, which resulted into acquittal of the respondents/original accused. 3. Learned APP would contend that prosecution has examined 18 witnesses and produced 18 documents to substantiate the charge and emphasis is laid on the testimonies of PW-1 viz. Anwar Rashid Farukbhai, who was examined at Exh.22, PW-2-Abdullah Ismail Bagiya, Exh.33, PW-3-Dr. 3. Learned APP would contend that prosecution has examined 18 witnesses and produced 18 documents to substantiate the charge and emphasis is laid on the testimonies of PW-1 viz. Anwar Rashid Farukbhai, who was examined at Exh.22, PW-2-Abdullah Ismail Bagiya, Exh.33, PW-3-Dr. Arvindkumar Dashrathsing at Exh.37, a medical officer at Surat, who started postmortem and who carried out postmortem and confirmed about six external injuries and described cause of death due to blow caused over the body of the person, PW-4-Yusuf Ismail Asmal, Exh.46, and other prosecution witnesses viz. PW-7, Ahmed Mahmad Asmal, Exh.61, PW-8 Mahmad Salim Suleman Usman, Exh.63 and PW-11, Abdul Kader Mahmad Asmal, Exh.67, who claimed to have remained present in the meeting which was held and to the extent that they were around the scene of offence and witnessed the crime. In addition to above, police witnesses to which reference may be necessary, PW-17 at Exh.78, Rajesh Gopaldas Bhavsar and PW-18 at Exh.81, Jaswantsinh Chavda. The documentary evidence i.e. complaint Exh.23, PM note Exh.38, scene of offence panchnama, Exh.69, the map of scene of offence, Exh.72, FSL and serological report at Exh.83 and 84 respectively is also relied. Accordingly, it is submitted that testimonies of eye witnesses, who remained unshaken so far as overt act of commission of crime viz. inflicting knife blow by Osama, a juvenile and his father Usmangani, and even lacunae about the manner and nature of investigation viz. non-examination of cogent witnesses, initial lapse about not noticing knife which had fallen on the ground and other attending circumstances including the vehicle in which the injured was taken to Dinbandhu Hospital etc. would not hit core of the prosecution case and learned trial Judge ought to have believed testimonies of eye-witnesses duly supported by police witness. It is further submitted that in the testimonies of eye-witnesses it is revealed that their presence was natural having attended a meeting for the dispute of the community and distance from the place where they have witnessed the scene of crime and actual participation of the accused in commission thereof cannot be doubted and map prepared at Exh.72 of the scene of offence and testimonies of Surveyor, PW-13, who prepared a map would reveal that the incident did take place on the intersection of road touching the State highway and another one joining from Chhipavad. Even if a witness is standing at the distance of 30 ft. Even if a witness is standing at the distance of 30 ft. to 100 ft. and facing the scene of crime, version of such witness therefore cannot be said to be untrustworthy and not reliable. The incidence in question of stabbing the deceased, who was caught hold by other co-accused, was described by all the above eye-witnesses and duly get corroborated by other evidence including injuries mentioned in the postmortem report in column 17 and so deposed by Medical Officer and FSL report, judgment of acquittal under challenge deserves to be quashed and set aside and that respondents be convicted and sentenced so prescribed for the offences for which charge was framed against them. 4. As against above, Mr. Mrudul Barot, learned advocate for original accused no. 4 and Mr. Haresh Joshi, learned advocate for original accused nos. 1, 2, 3 and 5 strongly defended the judgment of acquittal ordered by the trial Court and submitted that in an appeal against acquittal powers of the appellate Court are circumscribed by decisions of the Apex Court in various cases and common thread run through the fabric of acquittal appeal is approach of the appellate Court will be loath in interfering with findings in favour of innocence of the accused unless the judgment and order appears to be so perverse and contrary to the settled principles of appreciation of evidence on record resulting into miscarriage of justice. 5. It is submitted that in the facts of this case, motive is not coming forth and the manner in which investigation has taken place create a doubt that investigating agency has not carried out investigation with all fairness and transparency and that independent witnesses including police witnesses, who were present at the scene of offence, were available and even statements of such persons were recorded but were not examined and conduct of eye witnesses, some of them having criminal antecedents including involvement in heinous crime and detention under preventive detention laws is not natural and, therefore, learned trial Judge has rightly dis-believed their testimonies. In support of the above submissions, learned advocate would contend that as per admission of investigating officer, Mr. Bhavsar, he had visited the scene of crime but had not noticed a knife lying on the ground and subsequently another prosecution witness deposed that the knife contained no blood marks or any kind of contamination, it was clean. In support of the above submissions, learned advocate would contend that as per admission of investigating officer, Mr. Bhavsar, he had visited the scene of crime but had not noticed a knife lying on the ground and subsequently another prosecution witness deposed that the knife contained no blood marks or any kind of contamination, it was clean. The very witness had not noticed any blood marks on the ground where the injured was lying and had also not inquired about a vehicle in which the injured was shifted to hospital. It is further borne out from the record that when the police personnel arrived at the scene of offence one of the accused was standing with knife but it appears that none of the above police witness was examined. Barring four witnesses others have turned hostile and contradiction appear in the testimonies of Yusuf Ismail and Ahmed Asmal with regard to the sequence of offence and collectively if the testimonies of eye witnesses are analyzed it suffers from significant discrepancies, vital omissions and major contradictions and under the circumstances, when the scuffle which took place was preceded by a meeting between two rival groups of the community with regard to discharge of duties by office bearers of the organization failure on the part of the prosecution to bring home cogent and convincing evidence in respect of charge and guilt of the accused do not deserve any further appreciation and the appeal deserves to be rejected. 6. Having heard learned APP for the appellant-State and learned counsel for the respondents/original accused, perusal of the record including the judgment and order of acquittal under challenge, we are not persuaded by submissions made by learned APP that judgment of acquittal needs to be reversed but we are duty bound to give our views for agreeing with the reasonings, findings and conclusion drawn by learned trial Judge holding failure on the part of the prosecution to prove its case beyond reasonable doubt. 7. It is true that all eye-witnesses, who were examined by the prosecution belong to the group of injured, deceased and complainant and other eye witnesses had criminal antecedents, though acquitted but detained under preventive detention law. 7. It is true that all eye-witnesses, who were examined by the prosecution belong to the group of injured, deceased and complainant and other eye witnesses had criminal antecedents, though acquitted but detained under preventive detention law. The approach of the investigating officer in relying on version of the complainant and not carrying out detailed, fair and transparent investigation also create doubt since independent witnesses whose statements were recorded but not examined in the trial, and so is the case of four police personnel, who immediately arrived at the scene of offence and noticed one of the accused having knife in his hand but again no statement is recorded and, therefore, a conclusion can be drawn about partial investigation carried out by the investigating agency. So far as scene of offence is concerned, as per map prepared by Surveyor, it is 30 ft. away from Husaini Parab and Gate of MAI Madressa High School is 90 ft. away from Husaini Parab. In between Husaini Parab and MAI Madressa High School, State Highway is situated having busy traffic throughout the day and night. As per witnesses, a person standing nearby Husaini Parab would not be able to see scene of offence much less actual commission of crime and all the witnesses, who were belonging to the group of the deceased and relatives did not make any attempt to rescue the injured or even try to intervene and overpower the assailants. The knife allegedly used in commission of crime, recovery thereof and FSL report pale into insignificance in view of failure on the part of the prosecution to get blood group of the deceased analyzed and simply because clothes of deceased sent for FSL revealing the blood group of the deceased would not establish case of the prosecution beyond reasonable doubt, particularly when panchas have turned hostile. At the same time, investigating officer, Mr. Bhavsar, and his testimonies reveal that all eye witnesses have tried to improve substantially and vital omissions appear if their statements or even a complaint before the police is considered in juxtaposition of the testimonies before the Court. 8. At the same time, investigating officer, Mr. Bhavsar, and his testimonies reveal that all eye witnesses have tried to improve substantially and vital omissions appear if their statements or even a complaint before the police is considered in juxtaposition of the testimonies before the Court. 8. That testimonies of Medical Officer at the most support the case of the prosecution to the extent of injuries on the body of the person but again usage of knife, no blood stain on the knife and absence of blood marks on the ground initially also create doubt about actual scene of offence and conjointly and collectively we find that the view taken by learned trial Judge at the end of appreciating evidence on record about innocence of the accused cannot be said to be a view not possible and while exercising powers as an appellate Court and for the reasons stated herein above, we find the above view taken by the trial Court in favour of the accused deserves to be confirmed and in absence of merit the appeal stands dismissed. 9. For the foregoing reasons, this appeal is dismissed. The impugned judgment and order dated 28.10.2003 rendered in Sessions Case No. 37 of 2004 by learned Presiding Officer, 4th Fast Track Court, Surat, acquitting the respondents of offences under Sections 143, 147, 148, 149, 504, 302 read with Section 34 of the Indian Penal Code is hereby confirmed. Bail bond, if any, stands cancelled. Registry to return the R&P to the concerned trial Court forthwith.