State Of Gujarat vs Mohmmed @ Batuk Karimbhai Meer & Anr

R. T. Vachhani, J

Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 7.4.2001 passed by the learned Additional Sessions Judge, Gondal in the Sessions Case No. 02 of 2000 arising from Gondal City Police Station pertaining to the alleged murder of Ganeshnath Mohannath, whereby both the respondents-accused were acquitted of the offences punishable under Section 302 read with Section 114 of the Indian Penal Code and Section 37(1) read with Section 135 of the Bombay Police Act, the appellant – State of Gujarat has preferred the present criminal appeal under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short), seeking leave to appeal against the said acquittal and praying for setting aside the impugned judgment by convicting the respondents-accused in accordance with law.

The brief facts leading to the filing of the present appeal are as under:

2.1. As per the prosecution case, on 13.9.1999 at around 7:45 p.m. on the new road near Bhojpara in Gondal town, District Rajkot, the accused No. 2, Gaffar alias Nazir Valibhai Ghanchi, being provoked and enraged over the persistent demand made by the deceased Ganeshnath Mohan Nath for repayment of a loan amount of ₹4,500/- that the deceased had earlier lent to the co-accused No. 1, Mahmad alias Batuk Karim Mir (who is the brother-in-law of accused No. 2), stopped the rickshaw which he was driving (with accused No. 1 Mahmad alias Batuk sitting as a passenger therein), alighted from the vehicle, and launched a sudden and premeditated attack on the deceased Ganeshnath Mohan Nath by repeatedly stabbing him with a sharp-edged knife. The blows were inflicted with such force and precision on vital parts i.e. two on the right side of the chest (one of which pierced the lung), one near the collarbone, and another on the left abdomen resulting in grievous and fatal injuries, including profuse bleeding and protrusion of intestines, clearly demonstrating an intention to cause death. The deceased collapsed immediately at the spot, and despite being rushed to Gondal Government Hospital in an ambulance by the complainant Kailas Bajrangdas Bavaji and his wife Rekha alias Rajiya, he was declared brought dead by the duty medical officer. The motive stemmed directly from the deceased's visit earlier that evening to accused No. 2's house in Kumharwada area to recover the outstanding loan amount, which provoked accused No. 2 to commit the act, while accused No. 1 actively abetted and assisted in the commission of the offence. Both accused, acting in concert and aiding each other, also violated the District Magistrate’s proclamation restricting possession of arms by using the knife as a deadly weapon, thereby committing culpable homicide amounting to murder. The complainant and his wife, who were present throughout as eye-witnesses accompanying the deceased, witnessed the entire assault but were in shock and unable to note the rickshaw registration number as the accused fled the scene immediately thereafter. Accordingly, FIR being Gondal City Police Station came to be registered for the aforesaid offences. After completion of investigation, charge-sheet was filed before the learned Judicial Magistrate First Class, Gondal, and the case was committed to the Sessions Court where it was registered as the present Sessions Case.

On conclusion of evidence, the Sessions Court put various incriminating circumstances to the respondent-accused under Section 313 of the Code. The respondent-accused denied all allegations and claimed to be innocent. After hearing both sides, the learned Sessions Judge acquitted the respondent-accused.

We have heard learned APP for the State and examined the oral and documentary evidence adduced before the sessions Court.

Learned APP submits that the impugned order of acquittal is required to be set aside because the evidence of the complainant and his wife (eye-witnesses) supported the presence at the scene and the medical evidence fully corroborates the injuries caused by a knife. He therefore prays for allowing the appeal.

The incident in question occurred on 13.9.1999 at approximately 7:45 p.m. near the Kothari Oil Products factory on the new road in Gondal, during hours of darkness as admitted in the evidence. The prosecution's case entirely hinges on the alleged presence of three persons at the spot: the deceased Ganeshnath, who was pushing his Luna moped, the complainant Kailas Bajrangdas, who was pushing his cycle, and his wife Rekhaben alias Rajiya, who was walking alongside them. According to the prosecution narrative, the deceased had come to Gondal to recover a loan of ₹4,500/- from Accused No. 1, Mahmad alias Batuk Karim Mir, and the trio had visited the house of Accused No. 2 in Kumharwada but found no one there except the younger sister and child of Accused No. 2. While proceeding further in search of Accused No. 1, a rickshaw allegedly approached from the opposite direction, from which the attackers alighted and assaulted the deceased. However, there are no independent witnesses to this occurrence, and the only two purported eye-witnesses, namely the complainant and his wife, have not supported the prosecution's version regarding the identity of the assailants, thereby leaving the case without any direct ocular evidence linking the accused to the crime.

The medical evidence on record conclusively establishes that the death of Ganeshnath was homicidal, caused by multiple penetrating stab wounds on vital parts such as the chest, abdomen, and shoulder, inflicted by a sharp cutting instrument consistent with a knife, and these injuries were sufficient in the ordinary course to cause death. This aspect of the medical testimony is reliable and unchallenged. However, the crucial link of identifying the perpetrators remains wholly unestablished. The prosecution relied solely on two eye-witnesses: complainant Kailas Bajrangdas at Ext.11 and his wife Rekhaben alias Rajiya at Ext.13. Kailas, in his testimony, admitted the darkness prevailing at the time and categorically stated that although a rickshaw approached and someone alighted to attack the deceased before fleeing, he could not identify the attackers due to the lack of light. He was declared hostile by the prosecution, and even upon cross-examination, he steadfastly refused to name or implicate either accused. Similarly, Rekhaben denied knowledge of the loan transaction, denied accompanying the deceased and her husband to Accused No. 2's house, and outright denied her presence at the scene or witnessing any attack, leading to her also being declared hostile. Thus, both witnesses, who are closely related to the Accused No. 1 being Rekhaben's maternal uncle and Accused No. 2 being the husband of her maternal aunt failed to provide any identification or corroboration, rendering their evidence entirely unhelpful to the prosecution.

The prime witnesses, namely the complainant Kailas Bajrangdas as well as his wife Rekhaben alias Rajiya, were projected by the prosecution as the material eye-witnesses to the occurrence. However, both these witnesses have not supported the case of the prosecution in any manner and have turned hostile. Not only that, these witnesses have expressed reluctance in implicating the accused persons, who are their close relatives, and have refrained from attributing the incident in question to them. A further significant factor that substantially undermines the prosecution's case is the absence of any reliable corroborative evidence beyond the failed eye-witness accounts. So far as the alleged extra-judicial confession made before the prosecution witness Rasik Manji is concerned, the same has not been proved beyond reasonable doubt. The said witness Rasik Manji himself turned hostile and, in his defence cross-examination, admitted to police pressure and his own unreliability owing to pending Prohibition Act cases against him. In his chief examination, Rasik vaguely stated that Accused No. 1 said "In Gondal, a murder has been committed by me," which lacks specificity to the present offence. He explicitly stated that no such confession was voluntarily made to him, and that he was arrested alongside the accused for drinking, following which the police allegedly pressured him to attribute a confession statement to the accused. The police personnel may have supported the prosecution's stance in this regard, but they otherwise cannot be treated as material witnesses having personal knowledge of the confession, and their evidence alone cannot form the sole ground to convict the accused. Given Rasik's background and his admission of police coercion, this evidence cannot be considered reliable or trustworthy. Moreover, there is no discovery of the muddamal knife proved through credible panch witnesses, and no other circumstantial evidence links the accused to the weapon or the scene. The close familial ties between the witnesses and the accused further explain the reluctance to implicate, but this only highlights the lack of independent proof.

In light of the foregoing, the prosecution has utterly failed to establish the identity of the assailants beyond reasonable doubt. The only purported direct evidence from the two eye-witnesses collapses entirely due to their hostility, admissions of darkness impairing visibility, and complete denial of incriminatory facts. The extra-judicial confession, being weak, vague, retracted, and emanating from an unreliable source admitting police pressure, carries no evidentiary value without independent corroboration, which is conspicuously absent. No test identification or other procedural safeguards were employed to bolster identification. The medical evidence, while proving homicidal death through stab injuries possibly caused by a knife-like weapon, does not bridge the evidentiary gap in attributing those injuries to the present accused persons. Therefore, the reasoning adopted by the learned Judge in discarding the evidence of these hostile eye-witnesses and the unreliable extra-judicial confession, and in extending the benefit of doubt to the accused, is correct, proper, and in consonance with settled principles of criminal jurisprudence. In these circumstances, the learned Additional Sessions Judge rightly concluded that it is unsafe and impermissible to base a conviction on such fragile and infirm evidence. The view adopted by the sessions Court, acquitting the accused, is not merely a possible view but the only reasonable and plausible view emerging from the totality of the evidence on record, fully justifying the benefit of doubt extended to the accused. No interference is called for with the well-reasoned order of acquittal.

It is a well-entrenched principle of criminal jurisprudence that in an appeal against an order of acquittal, there operates a double presumption in favour of the accused. The appellate Court is not to interfere with the acquittal merely because a contrary view appears arguable or possible; interference is warranted only if the findings of the sessions Court are demonstrated to be perverse, capricious, or wholly unsustainable on the evidence. In the present case, far from being perverse, the sessions Court's appreciation of evidence is meticulous, logical, and grounded in the glaring deficiencies in the prosecution case.

Additionally, the prosecution's failure extends to the ancillary charge under the Bombay Police Act, with no evidence whatsoever proving that Accused No. 2 was in possession of the muddamal knife in contravention of any proclamation. The police evidence, standing alone without support from ocular or circumstantial sources, remains insufficient to sustain any of the charges, whether of murder or abetment thereof. The totality of the material underscores a complete lack of proof linking either accused to the fatal injuries inflicted on the deceased. Consequently, the acquittal of both Accused No. 1, Mahmad alias Batuk Karim Mir, and Accused No. 2, Gaffar alias Nazir Valibhai Ghanchi, under Section 302 read with Section 114 IPC and the provisions of the Bombay Police Act is impeccably reasoned, legally sound, and calls for no appellate interference whatsoever.

The judgment of the sessions Court dated 7th April 2001, pronounced by the learned Additional Sessions Judge, Gondal, correctly applied the principles governing appreciation of evidence in criminal trials, particularly the requirement of proof beyond reasonable doubt in cases resting on direct evidence that has crumbled under scrutiny. The order of acquittal, coupled with directions regarding custody and muddamal, reflects a judicious exercise of discretion fully commensurate with the evidentiary voids exposed during the trial. Thus, the prosecution's endeavour to secure conviction stands rightfully thwarted by the insurmountable barriers of unreliable witnesses, absent corroboration, and fundamental doubts permeating the case.

At this stage, this Court may refer to the decision of the Hon’ble Apex 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 acquittal in the following words: (Chandrappa case [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, reappreciate 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.

(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.”

In the case of H.D. Sundara & Ors. v. State of Karnataka [(2023) 9 SCC 581] the Hon’ble Apex Court has 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 reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating 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; and

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.”

In the light of the above discussion and the settled legal position, the prosecution has failed to prove the guilt of the respondents-accused beyond reasonable doubt. The impugned judgment and order of acquittal dated 7th April 2001 passed by the learned Additional Sessions Judge, Gondal in the Sessions Case No. 2 of 2000 does not call for any interference.

The appeal is devoid of merit and is accordingly dismissed. The judgment and order of acquittal is confirmed. Records and Proceedings, if any, be remitted to the Court concerned forthwith.