State of Gujarat vs Harun Rasid Daud Suleman

K.S. Jhaveri, J.

1.0 This appeal was listed before this Court time and again. It is pointed out by the Registry that in spite of all efforts the State is not in a position to serve the respondent-accused since he has left India. Since this is a very old matter of the year 1985 we have requested Mr. M.J. Budhbhatti to assist this Court on behalf of respondent-accused and accordingly this matter was taken up for final hearing.

2.0 The present appeal, u/s 378 of the Code of Criminal procedure, 1973, is directed against the judgement and order of acquittal dated 18th May 1985 passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 23 of 1985 whereby the accused was acquitted of the charges leveled against him.

3.0 The brief facts of the prosecution case are as under:

3.1 On 3rd September 1984 at about 2 pm at Panchayat Chor Otla the respondent herein got angry on Hanif on the ground that Harun was spreading news that the accused had illicit relations with Sahida. By telling this the respondent accused inflicted knife blows on Hanif. While attacking with the knife Hanif tried to take the knife from pushed away the knife as a result of which the respondent accused suffered injuries on his wrist. The respondent accused inflicted blows on Harun and run away with the knife. Hanif was taken on a cot to Police Patel and from there he was taken to SSG Hospital, Vadodara. Hanif died in the hospital at abut 6.30 pm. The Constable on duty at SSG Hospital informed about the incident. Accordingly a first information report being C.R No. 219 of 1984 was registered with Karjan Police Station for the alleged commission of offence under Sections 302 and 324 of Indian Penal Code. The PSI of Karjan Police Station took over the investigation and went to the place of incident, prepared panchnama of scene of offence, recorded statements of witnesses and thereafter sent the dead body for post mortem. During the course of investigation the respondent accused was arrested and the muddamal knife, clothes and other articles were attached and sent for laboratory inspection.

3.2 Necessary investigation was carried out and statements of various witness were recorded. On receipt of FSL report and completion of investigation chargesheet was filed against the respondent before the learned Judicial Magistrate, Karna. Thereafter as the case was exclusively triable by the Sessions the same was committed to the Court of learned Sessions Judge, Vadodar which was numbered as Sessions Case No. 23 of 1985. The trial was thereafter initiated against the respondent accused.

3.3 To prove the guilt against the accused the prosecution has examined the following witnesses:

01 Basirbhai Maleksha (PW1-Exh.13)

02 Rahemanbhai Mahammadbhai (PW2-Exh.14)

03 Ishmailbhai Ibrahimbhai (PW3-Exh.15)

04 Sikandar Ibrahim (PW4-Exh.16)

05 Faridabhai Ahmedbhai (PW5-Exh.17)

06 Ishmailbhai Yusufbhai (PW6-Exh.18)

07 Kantilal Jivanlal (PW7 - Exh.20)

08 Manilal Maganlal (PW8-Exh.22)

09 Julekha Gulambhai (PW9-Exh.24)

10 Yusufbhai Alibhai (PW10-Exh.25)

11 Mahamadbhai Ishabhai (PW11-Exh.26)

12 Ishmail Alibhai (PW12-Exh.37)

13 Lallubhai Hirabhai (PW13-Exh.32).

3.4 In order to support the case, the prosecution has produced on record Map of scene of offence (Exh.6), Inquest Panchnama (Exh.7), Forwarding Notes (Exh.8), Report from Forensic Science Laboratory (Exh.9), Serological Report (Exh.10), Report of Forensic Science Laboratory (Exh.11), Medical certificate of Basirsha (Exh.21), Postmortem Note (Exh.23), Panchnama of clothes of dead body (Exh.27), Panchnama of physical condition of accused (Exh.28), Panchnama of place of offence (Exh.29), Panchnama of clothes of accused (Exh.30) and Copy of hospital wordhy book (Exh.33).

3.5 At the end of trial, after recording the statement of the accused u/s 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge, Vadodara, acquitted the respondent of all the charges leveled against him by judgement and order dated 18th May 1985.

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

5.0 Mr. R.C. Kodekar, learned APP contended that the judgement and order of the Sessions Court is against the provisions of law, the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. He submitted that the Sessions Court has grossly erred in appreciating the evidence of Basir Manekshah who is an injured witness and the evidence of Abdul Rahman at Exh.13 and 14 respectively. He submitted that considering the evidence of Ismail Ibrahim (Exh.15, Sikander Ibrahim (Exh.16), Faridabhai Vora (Exh.17), Yusufbhai (Exh.18), Medical Officer Dr. Kantilal Shah as well as the medical certificate produced at Exh.21, the prosecution has proved the case beyond doubt. He further submitted that the respondent accused had knife blows with intention to kill Hanif and the eye witnesses had supported the prosecution case and the learned Judge has committed an error in discarding their evidence. According to him the medical evidence shows that the respondent had inflicted eleven blows to the deceased on various parts of the body and therefore the prosecution has proved the case against the respondent accused. He submitted that the injured witness Basirbhai has clearly supported the case of prosecution, but the Sessions Court has failed to consider the said vital evidence in its proper perspective.

6.0 Mr. Budhbhatti, learned Advocate appearing as amicus curie has submitted that the prosecution has utterly failed to prove the case against the respondent accused. He submitted that the panch witnesses have turned hostile and the Investigating Officer has not appeared. According to him even the doctor who performed the postmortem was also not examined and the case was solely based on circumstantial evidence. He submitted that there are serious lapses and lacuna on the part of the prosecution and the prosecution has utterly failed to prove the case beyond doubt. He therefore submitted that the appeal deserves to be dismissed.

7.0 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.

7.1 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, reappreciate 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.

7.2 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.

7.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007) 3 SCC 75, the 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 judgement 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.

7.4 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 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

7.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonigns, 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.

7.6 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.

8.0 We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for the appellant.

9.0 We have gone through the entire evidence threadbare. The prosecution has placed much emphasis upon the evidence of complainant, injured witness Basirbhai, Faridabhai Ahmedabad and Ismail Ibrahim.

9.1 According to Basirbhai Maleksha (PW1-Exh.13) This witness is an injured witness in the alleged incident when he intervened. However, the Sessions Court has not believed his version. According to him he caught hold of Harun and he received knife blow. Doctor shall, who treated him has clearly admitted in his examination in chief that these injuries must have been caused within twenty four hours and a certificate at Exh.21 was issued in this respect. Thus the injuries must have been caused after six O '' clock in the evening on 3rd September 1984. Therefore the presence of Basir at the place of incident became doubtful. According to the deposition of Basir, Abu Raheman, Sikandar and Faridbhai were present on the Otta of public place. However, Abu Raheman at exh.15 and Sikander at Exh.16 specifically stated that they were not present at the place of incident and thy had not seen any such incident. According to Abu, he was in his house and he did not know as to what happened at the said place. Even the police did not record his statement and only asked his name. Similarly Sikandar Ibrahim also does not state that he was present at the place of incident. According to him, he had gone to service where he was asked to night shit and therefore he did not come back.

9.2 There were further contradictions in the evidence. The trial court has discussed the same in para 18 which reads as under:

Parid Ahmad states vide Exh.17 that the incident had happened between two to quarter past two and at that time Sikander Abu and deceased Hanif were sitting on the Otta at the public place and the accused was sitting near the room of Water Works. Abu and Sikander do not support this fact and they were not sitting on the Otta and they did not see anything. Farid clearly states, in his cross examination, that they were talking for half an hour and the accused also sat for half an hour. Now in fact if the accused had been there with a knife to beat Hanif, there might not be such a silent atmosphere. If he had seen the incident then according to him Hanif was made to lie on a cot and was taken to Police Patel for lodging a complaint but he has not lodged any such complaint before Police Patel. According to the evidence of Police Patel, when Hanif was brought, he was sleeping and Farid told that it was internal dispute but he did not say as to between whom. Police Patel stated that report was to be made but Farid informed that ''let you know afterwards''. According to Farid, they came to Palej where there is government hospital and Police Station but Hanif is not given treatment there. Complaint is also not lodged. He admits that Karjan is on the way from Palej to Vadodara on a Police Station is also there where they do not lodge complaint. According to Farid, a constable, on duty at hospital, inquired about the incident and he stated all the facts. Accordingly the head constable, on duty at hospital, recorded the complaint and Farid dictated his name therein. Now in fact if the hospital vardhi exh.33 is referred, the head constable Lalubhai was on duty, as stated by him, in the hospital on 3.9.1984. The Medical Officer M.S. Shah had given a Vardhi at 03.30 PM in the afternoon that one Abdul Daud Suleman resident of Halderva, has given a knife blow, for any reason, on the left side of abdomen and on right hand of one person viz. Hanif Ibrahim at two O'' clock in the afternoon today. Now if this fact is examined, the hospital vardhi exh.33 can be considered to be a first information in this case because cognizable offence appears to have been committed. On referring the same, the name of deceased is stated to be Abdul Daud Suleman. The learned Advocate Shri Joshi for the accused has asked each witness as to whether Usuf Muchala has sons viz Gulvez and Ilias and there is one person viz Abdul in his family. The deceased Hanif was talking about the love affairs between the accused and Yusuf Muchala''s daughter Sahida. So Gulvez, Ilias and Abdul quarreled with Hanif five days before the incident. A suggestion, in this crosse xamiantion is supported by the hospital vardhi exh.33. Yusufbhai Alibhai states, in his cross examination that he has five sons. Their names are Gulvez, Illias, Yunus, Anwar and Irmkan and the name of his eldest daughter is Sahida and Abdul is the son of his brother-in-law. In these circumstances the prosecution has absolutely failed to prove that the accused has caused injuries to Hanif. According to Exh.33 the name of Abdul is given as an assaulter and the name of the person who brought for treatment is written to be Mahid aliwali. According tot he prosecution case one Faridabhai Ahmedbhai Vora, head constable on duty in hospital, has reported the complaint meaning thereby in Exh.33, wrong name is given to Faridbhai. Therefore it is proved to be false that Faridbhai took the injured for treatment. The punch witnesses have not supported the writings of Exh.27 to 30 and the accused has not produced any such muddamal. Dr.Kantilal Shah has clearly stated about the injuries to Basir that such injuries can be made by self. In this matter, Dr. Purander, who had performed the postmortem, has gone abroad and is not likely to return for a long time. Therefore the doctor, performing the postmortem is not examined. The postmortem report exh.23 is proved by Dr. Manilal who is acquainted with his hand writing. He has stated that the injury No. 1, in normal circumstances, is sufficient for causing death by the weapon like muddamal article No. 9. But this fact is not supported by the prosecution witnesses. The prosecution has not been able to prove that the accused has caused this injury. Similarly, it cannot be said that a death is possible, if injury No. 1 is not there, by the injury Nos. 2 to 10. In view of this, the prosecution has absolutely failed to prove the case against the accused. Therefore I answer the point Nos. 2, 3, 4 and 5 in negative.

9.3 We have also gone through the entire evidence as discussed by the trial court. Considering the evidence emerging from the record we are of the considered opinion that the prosecution has failed to prove the case against the accused. The original doctor who performed the postmortem was not examined though it was possible to call for this witness. It is also required to be noted that the Investigating officer, who is also a vital and important witness has not been examined to support the prosecution case. The panch witness have turned hostile. There are serious omissions on the part of the prosecution.

10.0 In the 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. 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. Hence the appeal is hereby dismissed.