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2016 DIGILAW 733 (GUJ)

State of Gujarat v. Zakirmiya Hasammiya Saiyad

2016-04-04

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both the appeals are directed against the common judgment and order of acquittal dated 21.02.1994 of the learned Additional Sessions Judge, Vadodara passed in Sessions Case Nos. 37/1993 and 38/1993 whereby the respondents herein were acquitted of the offences punishable under Section 143, 147, 149, 302, 323 read with Section 149 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2. The case of the prosecution is as under:- "2.1. The complainant resides alongwith her mother, her brother - Dilavar and the brother's wife at Village Samra. About ten years back from the date of the present incident, the brother of the present accused No. 6 was killed and another brother of the complainant - Bachubhai Ibrahimbhai was alleged to be one of the accused. Hence, fearing a threat to his life, Bachubhai Ibrahimbhai had left the village Samra and was living with his family at Rajasthan. On 07.04.1992, as it was the festival of Idd, Bachubhai Ibrahimbhai had come to meet his sister and other members of the family. In the night at about 10.00 pm after having dinner all the members of the complainant's family were sitting in the compound of the house. Bachubhai then had gone to buy a pack of bidis and while coming back, at a particular point saw some 15 persons seated. On seeing Bachubhai, it is alleged that all the accused surrounded Bachubhai and they had various weapons like spear, axe, dharia, battle axe and sticks. The accused started attacking Bachubhai and due to the injuries sustained, he expired on the spot. On hearing the screams of Bachubhai, his brother - Dilavarkhan came running to help his brother but he was also inflicted with stick blows. The accused then thereafter ran away from the scene of incident with their respective weapons. 2.2. The complainant intimated about the above incident to one - Rasoolbhai at Indore and thereafter, a complaint in this respect was lodged by the complainant the next morning. The investigation commenced, the statement of various witnesses were recorded, the weapons used were recovered, the panchnama of the scene of offence was carried out and charges were led against the accused in the Court of the learned Judicial Magistrate First Class, Karjan. However, as it was a sessions triable case, it was committed to the Court of Sessions. 2.3. The investigation commenced, the statement of various witnesses were recorded, the weapons used were recovered, the panchnama of the scene of offence was carried out and charges were led against the accused in the Court of the learned Judicial Magistrate First Class, Karjan. However, as it was a sessions triable case, it was committed to the Court of Sessions. 2.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exh. Dr. Vijaykumar Maganlal Mehta 2 Dr. Vishnubhai Amaiyalal Oza 22 Complainant Faridaben Allahraka Saiyed 24 Witness Dilavarrakha Ibrahimiya Saiyed 26 Panch witness Gulabbhai Albhabhai 28 Panch witness Kesarisinh Jaysinhbhai 35 Panch witness Sikandar Amirbaji 36 Panch witness Sardarbhai Hemaji Thakore 38 Panch witness Jorubhai Kajubhai Malek 41 Panch witness Manubhai Chhaganbhai Panchal 45 Witness Rasoolbhai Ibrahimbha Saiyed 50 Witness Merubhai Narubha Malek 51 Panch witness Ambalal Harilal 52 Witness Zeenatbibi Ibrahim Saiyed 56 Witness Ibrahim Chatba Malek 63 Witness Saduben Dilavarkhan Saiyed 64 Panch witness Naginbhai Nathabhai Patel 65 Panch witness Nagjibhai Mahijibhai 66 Panch witness Mohammedbhai Albha Malek 67 Panch witness Bapuji Nanbha Malek 68 Panch witness Jibava Samirbhai 71 Investigating officer R.B. Patil 72 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exh. Complaint 25 Post Mortem Note 21 Certificate regarding the injuries to witness Dilavar 23 Panchnama of the scene of offence 29 Inquest panchnama 34 Panchnama of the clothes of the deceased 37 Panchnama of the position of the body of the accused 39 Panchnama of the production of Pirzadmiya 42 Panchnama of the position of the body of the accused 40 Discovery Panchnama 44, 53, 70 Yadi for sending the muddamal to FSL 58 Receipt for the muddamal received 59 Analysis Report 60 Map of the scene of offence 61 2.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that they have been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid." 3. Learned Additional Public Prosecutor Ms. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid." 3. Learned Additional Public Prosecutor Ms. C.M. Shah has taken this Court to the evidence of the complainant and also the Medical Officer and has submitted that the learned Judge has not properly appreciated the deposition of various witnesses and instead, should have appreciated the fact that the deceased was brutally murdered for which there is a post mortem report. It is further submitted that all the accused had formed an unlawful assembly with a common intention to cause injuries to the deceased and were also armed with deadly weapons. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned qua the acquittal of the accused. 4. Learned Advocate for the respondents Mr. B.S. Patel has relied on the various judgments of the Hon'ble Supreme Court which are detailed herein-below and has submitted that there are serious contradictions in the evidences led by Dilavarkhan and the complainant. It is further submitted that the panch witnesses have turned hostile and the learned Judge has given cogent and convincing reasons to arrive at the acquittal of the accused. Hence, it is submitted that the judgment and order of the learned Sessions Judge requires no interference by this Court. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., reported in (2006) 6 S.C.C. 39 , the Apex Court has narrated about the powers of the 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. 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 view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." Further, in the case of Chandrappa v. State of Karnataka reported in (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. 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." 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. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (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." Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors. reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs. v. 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. In the case of Luna Ram v. Bhupat Singh and Ors., reported in (2009) SCC 749, the Apex Court in para 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 doctor who conducted the post-mortem 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. 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." Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 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 appellant 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. Since counsel for the appellant 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 v. Sohan Lal and Others, (2004) 5 SCC 573 ]." It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write 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 v. Hemareddy, reported in 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." Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors. v. State of Karnataka, reported in JT 2013(7) SC 66. 5. We have heard learned Advocates for the parties and perused the records of the case. v. State of Karnataka, reported in JT 2013(7) SC 66. 5. We have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, especially at Paragraph 22 of the judgment and order, the learned Judge has clearly pointed out the contradictions of various witnesses, the improvements made in various evidences, the panch witnesses who have turned hostile as also the lacuna observed in the discovery panchnama and joint recovery panchnama. Considering the facts and circumstances of the case, it is clear that the prosecution has failed to prove its case beyond reasonable doubt and hence, this Court is in full agreement with the reasons given and findings recorded by the Trial Court while acquitting the accused and adopting the said reasons as well as the reasons aforesaid, in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 6. The Appeals are devoid of merits and are dismissed accordingly. The judgment and order dated 21.02.1994 of the learned Additional Sessions Judge, Vadodara in Sessions Case Nos. 37/1993 and 38/1993 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.