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2024 DIGILAW 1990 (GUJ)

STATE OF GUJARAT v. ABDULHAMID ABDULKADIR SHEIKH

2024-10-28

BIREN VAISHNAV, MAULIK J.SHELAT

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JUDGMENT : BIREN VAISHNAV, J. 1. This appeal has been filed by the State challenging the judgment and order of the learned Additional Sessions Judge, Court No. 8, Ahmedabad City, which was passed on 07.01.2012. By the aforesaid judgment, the learned Judge acquitted the accused who were charged for the offences punishable under Sec.395 r/w. Sec.114 of the Indian Penal Code. 2. The case of the prosecution in short was that on 23.08.2009, at about 20:55 hours, the respondents-accused in connivance with the absconding accused, boarded in the general compartment of the Sabarmati Express Train, closed the gates of the compartment from both the sides, administer threats by pointing out sharp edged knife to the passengers and thereby committed a loot of Rs.53,300/- 2.1 A complaint in this regard was given by one Devendrasinh Tundeprasad Rajput, at Vadodara Railway Station to the railway Head-Constable, which was registered as I-CR No. 75/2009. 2.2 During the investigation, Police-Sub-Inspector, Shri Rabari, arrested the accused A.Hamid Sheikh and Mahmmad Harun Ansari on 19.09.2009. On remand, these accused named two others, namely, Javed Babushah and Saddam Hussain Sheikh. Thereafter, one other accused Sameer Bengali was arrested by the Head- Constable from the Ahmedabad railway station itself. Identification Parade was carried out before the Executive Magistrate, necessary panchnamas were drawn, charge sheet was prepared and submitted to the Metropolitan Magistrate, Ahmedabad. Since the case was sessions triable, it was registered as Sessions Case No. 129 of 2010. To prove its case, the prosecution examined 13 witnesses and produced 11 documents. 3. Essentially, for our discussion, in light of the judgment of acquittal by the Trial Court is the deposition of the complainant Devendrasinh Tundeprasad at Exh.53 and that of the Executive Magistrate Zala Indraveersinh Vajubha at Exh.45, who carried out the Test Identification Parade. Essentially, perusal of the judgment of the Trial Court would indicate that having found serious flaws in the Test Identification Parade, the learned Sessions Judge acquitted the accused. We, therefore, have independently gone through the evidence of the Executive Magistrate at Exh.45 and that of the complainant at Exh.53 respectively. Executive Magistrate Zala Indraveersinh Vajubha in his Examination-in-Chief states that he received a yadi on 29.09.2009 to carry out an Identification Parade at 5:00 p.m. The letter so received was produced at mark 36/7. We, therefore, have independently gone through the evidence of the Executive Magistrate at Exh.45 and that of the complainant at Exh.53 respectively. Executive Magistrate Zala Indraveersinh Vajubha in his Examination-in-Chief states that he received a yadi on 29.09.2009 to carry out an Identification Parade at 5:00 p.m. The letter so received was produced at mark 36/7. He further testifies that the accused were produced for Test Identification Parade at 5:00 p.m at which point they had their faces covered. When they were taken to the Court room, neither the complainant nor the other witnesses were present. That he instructed his Peon that for preparing panchnama, five dummy persons who had the same physique as the accused, be called for. The pancha recorded the name of these dummy persons before coming to the Court room. 3.1 In the Cross-Examination, it has come on record from the testimony of this witness that the schedule for Test Identification Parade was kept ready. The Test Identification Parade was to be carried out at the first floor of the Court house. That he had instructed his Peon that he may call two individuals as panch witnesses which he sent at 5:10 p.m. Panchas arrived at around 5:20 p.m. That he had filled in the panchnama before these panchas had come and left the other details for the panchas to fill in. 3.2 Devendrasinh Tundeprasad Chauhan, the complainant is examined at Exh.53 as Prosecution Witness 7. In his Examination-in-Chief, he would submit that there were five unknown persons who had accosted them and carried out the theft of cash after showing them a sharp object. One of the accused identified to be between the age of 16 to 17 years. He further testifies that on 29.12.2009, he was called by the Police for being taken to the Court. The Police Officer concerned was named Mr.Patil. Shri Patil, informed him that the amount of cash and the belongings that were stolen were found. That from the 25 to 30 people who were kept for test identification, he had identified five accused. Those accused were present in the Court. From the cross-examination of the complainant, what has come on record is that Shri Patil had come to him. At that point of time, a Police Van arrived in which about 15 to 20 youngsters were sitting. Those accused were present in the Court. From the cross-examination of the complainant, what has come on record is that Shri Patil had come to him. At that point of time, a Police Van arrived in which about 15 to 20 youngsters were sitting. We were made to sit in the front portion of the police van. The faces of the persons sitting in the police van were uncovered. We were, therefore, in a position to see faces of these 15 to 20 youngsters who were to be taken for the test identification parade before the police. 3.3 Perusal of the reasoning of the learned Sessions Judge would indicate that on having assessed the evidence, he found that the test identification parade was seriously flawed. He found from the testimony of the Executive Magistrate when read with that of the complainant that 15-20 youngsters from whom the five accused were to be identified were brought in a van with uncovered face. The complainant was made to travel in the same van, albeit, on the front seat. Obviously therefore, the element of surprise and the genuineness of identifying the accused was exposed much before the actual test identification parade was carried out. Even from the testimony of the Executive Magistrate, what comes to light is that he had instructed his Peon to get two panchas. Those panchas came in at 5:20 p.m. much before their arrival, a panchnama was prepared and only bare minimum details had to be filled in by the panchas. This was clearly a case which was faulty. 3.4 The Test Identification Parade purpose is a method useful and is often accepted as evidence or as confirmation within the Court of law. The primary goal is to verify and reinforce the witnesses substantial evidence in the Court. It is used to asses the witness necessity and ability to recognize unknown people. Though it is not a substantial piece of evidence, it does go a long way, essentially in case of the kind where the charges of theft to prove the presence of the accused. The learned Trial Judge from the evidence of the Executive Magistrate and of the complainant found that an element of surprise was totally missing in light of the fact that the complainant had already seen the accused much before the actual test identification parade by hiding their faces was conducted in the Court room. The learned Trial Judge from the evidence of the Executive Magistrate and of the complainant found that an element of surprise was totally missing in light of the fact that the complainant had already seen the accused much before the actual test identification parade by hiding their faces was conducted in the Court room. 3.5 These very youngsters from whom the complainant had to identify the accused were exposed much before the identification parade was carried out giving the complainant ample time, and therefore, the element of surprise to test his genuine necessity in recognizing the accused was flawed. 4. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan vs. Ram Niwas, (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under: “6. This Court has held in Kalyan v. State of U.P. (2001) 9 SCC 632 : “8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808 , this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed: “27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of “The Proof of Guilt” by Glanville Williams, second edition: “I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.” 28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793 , as is clear from the following observations: “Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure considerations.” “9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court.” 8. In Arulvelu and another vs. State, (2009) 10 SCC 206 , the Supreme Court after discussing the earlier judgments, observed in Para No. 36 as under: “36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court’s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” 5. As observed by the Hon’ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh, (2011) 11 SCC 444 and Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh, (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 6. Scope of appeal against acquittal is well laid down in case of Chandrappa and Ors. vs. State of Karnataka, (2007) 4 SCC 415 , it was observed: “42. From the above decisions, in our considered view, the following general principles regarding powers of 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 curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize 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 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.” 7. Even recently, the Apex Court in the case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka, (2024) 8 SCC 149 has held as under: “39. (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.” 7. Even recently, the Apex Court in the case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka, (2024) 8 SCC 149 has held as under: “39. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] “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 Criminal Procedure Code, 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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise 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.” 40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: “8.1.The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible. 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles: 41.1 That the judgment of acquittal suffers from patent perversity. 41.2 That the same is based on a misreading/omission to consider material evidence on record. 41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 42. 41.2 That the same is based on a misreading/omission to consider material evidence on record. 41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” 8. Considering these set of evidences on record and in light of the latest decision of the Apex Court as reproduced hereinabove, which deals with the law on acquittal, we are of the opinion that no error has been committed by the learned Additional Sessions Judge, Court No. 8, Ahmedabad City, in acquitting the respondents. 9. The appeal is accordingly dismissed. Resultantly, the impugned judgment and order of the trial court is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings, if called for, be sent back to the concerned Trial Court forthwith.