State of Gujarat vs Habib Kasam

K.S. Jhaveri, J.

1.0 This appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 18th August, 1987 passed by the learned Addl. Sessions Judge, Rajkot in Sessions Case No. 15 of 1986, whereby, the respondent, original accused, has been acquitted from the charges leveled against him.

2.0 The facts in brief, as emerging from the record, are as under:

2.1 The respondent, original accused and Hussain Hasam, were near relatives and both were engaged in the business of sale of kerosene. On 27.04.1986, at around 2130 hrs., heated words were exchanged between the respondent and said Hussain Hasam in connection with some amount, which was outstanding to the respondent by said Hussain Hasam. The said discussion turned into an ugly event when the respondent allegedly inflicted a ''gupti'' (knife) blow in the stomach portion of Hussain Hasam. Thereafter, the respondent fled the scene of offence. The injured victim was taken to a nearby Hospital. However, during the course of treatment, he succumbed to the injuries.

2.2 A complaint with respect to the aforesaid incident was filed before ''B'' Division Police Station, Rajkot City. A ''panchnama'' with respect to the place of incident was prepared in the presence of ''panchas'' and ''muddamal'' articles were collected. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, as sufficient material was found against the respondent, he was arrested. Arrest ''panchnama'' was prepared and thereafter, the respondent-accused was sent to judicial custody. On the next day, i.e. on 28.04.1986, the victim succumbed to the injuries. Inquest ''panchnama'' was prepared in the presence of ''panchas''. ''Marnottar'' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. The muddamal articles were sent to F.S.L. for examination. Further investigation was carried out. On receipt of the PM note, F.S.L. Report and such other papers, they were kept in the investigation file. At the end of investigation, charge-sheet was filed against the respondent-accused before the Court of learned JMFC, Rajkot. As the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, Rajkot and it was numbered as Sessions Case No. 15 of 1986.

2.3 Trial was initiated against the respondent. During the course of trial, the prosecution had examined fourteen witnesses and had placed reliance upon several documentary evidence, more particularly, the complaint at Mark-A, panchnama of the scene of offence at Exhibit-19 and the PM note at Exhibit - 6. At the end of trial and after recording the statement of the respondent, original accused, u/s 313 of Cr.P.C., the learned Addl. Sessions Judge acquitted the respondent of the charges leveled against him.

2.4 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State has preferred the present appeal.

3.0 Mr. R.C. Kodekar, learned APP, has submitted that the impugned judgment and order of the Court below is against the provisions of law; the Court below has not properly considered the evidence led by the prosecution and that looking to the provisions of law itself, it is established that the prosecution has proved the ingredients of the offence beyond doubt.

3.1 Learned APP has contented that from the oral evidence of PW - 10 Aminaben Natubha at Exhibit - 25, who is the wife of the deceased and PW - 4 Musabhai Sidibhai at Exhibit - 11, the guilt of the respondent is established beyond doubt. The Court below has failed to appreciate the evidence on record in its true perspective and has, thereby, committed serious error in acquitting the respondent from the alleged offence. Hence, the impugned judgment passed by the Court below deserves to be quashed and set aside.

4.0 Mr. Jiten M. Budhbhatti, learned Advocate for the respondent, original accused, has submitted that on appreciation of the evidence on record, it could not be concluded beyond doubt that the respondent is the author of the alleged offence in question. He has contented that the complaint at Mark-A and the oral evidence of the complainant [PW - 2 Harun Ahmedbhai at Exhibit - 7] does not support the prosecution story. There are several contradictions in the evidence led by the prosecution witnesses and they do not support the evidence led by each other.

4.1 Learned Advocate has further submitted that from the evidence of PW - 4 Musabhai Sidibhai at Exhibit - 11, the presence of PW - 6 Hussain Abdulbhai at Exhibit - 20 and PW - 8 Jasubhai Karimbhai at Exhibit - 22, at the relevant point of time, becomes doubtful. Moreover, PW - 6 Hussain Abdulbhai at Exhibit - 20 and PW - 8 Jasubhai Karimbhai at Exhibit - 22 have been declared ''hostile'' by the Court below. Learned Advocate has also taken us through the other evidence on record. Thus, on appreciation of the evidence on record, the guilt of the respondent is not established beyond doubt. Therefore, the Court below was justified in acquitting the respondent, original accused and no interference is warranted from this Court in this appeal.

5.0 At the outset, it is required to be noted that the principles which would govern and regulate the 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 a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, , 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:

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 judgement 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.

5.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, , the Apex Court laid down the following principles;

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.

5.2 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.

5.3 Even, in a recent decision in the case of State of Goa v. Sanjay Thakran and 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;

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.

5.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR 2007 S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in AIR 2007 S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

5.5 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 Vs. Hemareddy Alias Vemareddy and Another, , wherein, it is held as under;

This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate Court when it agrees with the view of the trial 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.

5.6 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.

6.0 We have gone through the judgment and order passed by the Court below. We have also perused the oral as well as documentary evidence led by the trial Court and also considered the submissions advanced by learned Counsel for the respective parties. Having heard both the sides, it appears that the case of the prosecution mainly rests upon the evidence of PW - 2 Harun Ahmedbhai at Exhibit - 7, PW - 4 Musabhai Sidibhai at Exhibit - 11, PW - 6 Hussain Abdulbhai at Exhibit - 20, PW - 8 Jusabbhai Karimbhai at Exhibit - 22 and PW - 10 Aminaben Natubha at Exhibit - 25. Before we proceed further, it would be pertinent to note that both PW - 6 Hussain Abdulbhai at Exhibit - 20 and PW - 8 Jusabbhai Karimbhai at Exhibit - 22 have not supported the case of the prosecution and have been rightly declared as ''hostile'' by the Court below. Needless to say that conviction could not be recorded or, in other words, much reliance could not be placed on the evidence of a witness/s who has been declared ''hostile'' by the Court below. Therefore, we have to appreciate the evidence on record keeping in mind the fact that both PW - 6 Hussain Abdulbhai at Exhibit - 20 and PW - 8 Jusabbhai Karimbhai at Exhibit - 22 have been declared as ''hostile'' by the Court below. Thus, so far as the oral evidence is concerned, the prosecution case mainly rests upon the evidence of PW - 2 Harun Ahmedbhai at Exhibit - 7, PW - 4 Musabhai Sidibhai at Exhibit - 11 and PW - 10 Aminaben Natubha at Exhibit - 25. We shall carefully consider the evidence led by each of the aforesaid witnesses to ascertain their genuineness.

7.0 The wife of the deceased, Aminaben Natuba, has been examined as PW - 10 at Exhibit - 25. In her examination-in-chief, she has deposed that at the relevant point of time she heard some shouts that her deceased husband and the respondent were fighting with each other and therefore, she proceeded towards the place of incident. She physically separated the respondent and her deceased husband and at that time, the respondent informed the deceased to wait at that place for some time. She has further deposed that accordingly the deceased waited at the said place. After a few minutes, the respondent came with a ''gupti'' in his hands and inflicted a blow with it on the stomach of the deceased. Thereafter, the deceased was taken to a nearby Hospital by Harun Ahmedbhai [PW - 2 at Exhibit - 7], Hussain Abdulbhai [PW - 6 at Exhibit - 20] and Jusabbhai Karimbhai [PW - 8 at Exhibit - 22] in an auto-rickshaw. On the next day morning, she was informed by one of her relatives that her husband [deceased] has expired.

7.1 This witness has been cross-examined at length before the Court below. In her cross-examination, she has categorically stated that at the relevant point of time, on hearing the shouts which had occurred during the scuffle between the respondent and the deceased, Harun Ahmedbhai [PW - 2 at Exhibit - 7], Hussain Abdulbhai [PW - 6 at Exhibit - 20] and Jusabbhai Karimbhai [PW - 8 at Exhibit - 22], who were sitting near a cabin situated at a distance of about 50 steps away from the place of the alleged incident, rushed towards the scene of offence to physically separate the respondent and the deceased. She has further stated that Harun Ahmedbhai [PW - 2 at Exhibit - 7] had helped her at the relevant point of time in taking the deceased to their house. She had also noticed blood lying on the ground near the house of the respondent-accused. She has further deposed that she had stayed back at their house while the deceased was taken to the Hospital for necessary treatment.

7.2 Thus, from the cross-examination of this witness, it appears that PW - 2 Harun Ahmedbhai at Exhibit - 7, PW - 6 Hussain Abdulbhai at Exhibit - 20 and PW - 8 Jusabbhai Karimbhai at Exhibit - 22, who were sitting near a cabin situated at a distance of about 50 steps away from the scene of offence, had rushed to the place of offence on hearing the shouts that had occurred from the scuffle that was going on between the respondent and the deceased. It also further appears that after reaching the scene of offence, these witnesses had physically separated the respondent and the deceased and had, ultimately, taken the deceased to a nearby Hospital.

8.0 We shall now consider the evidence of Musabhai Sidibhai, who has been examined as PW - 4 at Exhibit - 11. In his examination-in-chief, this witness has deposed that at the relevant point of time, Harun Ahmedbhai [PW - 2 at Exhibit - 7], Jusabbhai Karimbhai [PW - 8 at Exhibit - 22] and he himself had physically separated the deceased and the respondent. As regards the subsequent event, this witness has narrated the same facts, as has been narrated by the wife of the deceased [PW - 10 at Exhibit - 25]. A notable fact that has come on record is that this witness has completely ruled out the presence of the wife of the deceased [PW - 10 at Exhibit - 25] at the scene of offence at the relevant point of time. In fact, this witness has categorically stated that while he was standing near the scene of offence, after helping-off the deceased to his house, the wife of the deceased came to him and informed him that the deceased had been injured.

8.1 This witness has also been cross-examined before the Court below. In his cross-examination, he has stated that at the relevant point of time, a ''gupti'' blow was inflicted on the person of the deceased by the respondent but, no bleeding had taken place. He has further stated that until he was returning to his house, after the alleged incident in question had taken place, he had not noticed any blood on the person or clothes of the deceased. Thereafter, Harun Ahmedbhai [PW - 2 at Exhibit - 7], Hussain Abdulbhai [PW - 6 at Exhibit - 20] and Jusabbhai Karimbhai [PW - 8 at Exhibit - 22] had walked away from the said place and the deceased had gone to his house without anyone''s help.

9.0 A close consideration of the evidence of this witness [PW - 4] in the background of the evidence led by PW - 10 Aminaben Natubha at Exhibit - 25 would lead us to the one and only conclusion that at the relevant point of time, the wife of the deceased, [PW - 10 Aminaben Natubha at Exhibit - 25] was not present at the scene of offence. There are several contradictions in the versions of PW - 4 Musabhai Sidibhai at Exhibit - 11 and PW - 10 Aminaben Natubha at Exhibit - 25. One such instance is that the wife of the deceased [PW - 10] has stated in her cross-examination that at the relevant point of time she had noticed blood lying on the ground near the house of the respondent, whereas, PW - 4 has stated that he had noticed blood lying on the ground within the compound of the house of the deceased. In fact, PW - 4 further goes to state that no blood was found on the person / body of the deceased at the relevant of time and that the deceased had not bled on account of the alleged ''gupti'' blow inflicted by the respondent. The aforesaid aspect creates serious doubts about the genuineness of the evidence led by both the witnesses, viz. PW - 4 Musabhai Sidibhai at Exhibit - 11 and PW - 10 Aminaben Natubha at Exhibit - 25.

10.0 Similarly, the evidence led by the complainant, PW - 2 Harun Ahmedbhai at Exhibit - 7, also does not support the case of the prosecution. In his examination-in-chief, this witness has narrated the alleged incident as an eye-witness. However, in his cross-examination, he has categorically stated that none of the four witnesses, viz. PW - 4, PW - 6, PW - 8 and PW - 10 and he himself could notice the alleged incident from the place where they were standing at the relevant point of time. Neither this witness nor any other witness, as discussed herein above, has seen the respondent allegedly inflicting a ''gupti'' blow on the deceased. Thus, it is evident that this witness has also supported the case of the prosecution.

11.0 The documentary evidence on record also does not support the case of the prosecution. The F.S.L. Report at Exhibit - 17 does not support the case of the prosecution. The prosecution has also failed to prove the blood group of the deceased. The panchnama of the scene of offence at Exhibit - 19 has also not been proved.

12.0 Before parting, it would not be out of place to submit that the original complainant, PW - 2 at Exhibit - 7, was recalled by the Court below for the purpose of recording his further evidence pursuant to the order passed below Exhibit - 40. However, the same did not yield any fruitful results. Without entering into the said aspect of the case, the fact remains that the prosecution has miserably failed to prove the guilt of the respondent. In above view of the matter, we are of the considered opinion that the trial Court was completely justified in acquitting the respondent of the charges leveled against him.

13.0 We find that the findings recorded by the trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Court below and hence, find no reasons to interfere with the same.

14.0 The appeal is, accordingly, dismissed. Bail bonds, if any, shall stand cancelled. Office to sent back the R & P, if lying with this Court, to the trial Court concerned forthwith.