(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1.0 The appellant State of Gujarat is before this Court under Section-378 of the Code of Criminal Procedure, 1973, against the judgment and order of acquittal dated 25.07.1991, passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No.311 of 1990, for offences punishable under Sections-302, 323, 506(2), 504 and 120-B of the Indian Penal Code and also for the offence under Section-135(1) of the Bombay Police Act.
2.0 So far as accused No.1 is concerned, learned Additional Public Prosecutor, Mr. Pujari, made available for perusal a communication dated 4th February, 2012 from the Police Sub Inspector, Surveillance Squad, Dariapur Police Station, Ahmedabad City addressed to the learned Public Prosecutor, High Court of Gujarat to which, a Certificate issued by Ahmedabad Sunni Wakf Committee is enclosed certifying that, 'Altafhusen Gulamali Shaikh died on 19th November, 2007 and was buried in Hazrat Mush-E-Sohag Burial Ground at 7:05 p.m.. The Certificate is issued on the basis of Receipt No.305 of Book No.4. The information is given to the person who prepared that Certificate by Gulamahmad Gulammmohammad.
3.0 The appeal stands abated qua accused No.1-Altafhusen Gulamali Shaikh.
4.0 This criminal appeal against respondent No.3/original accused No.3 has been dismissed as per Court's order dated 11.02.1992, which was passed at the time of admission of this criminal appeal, which reads as under:
“Leave granted, against respondent No.1 and 2. Leave refused against respondent No.3. Appeal is admitted against respondent no.1 and 2. Appeal is dismissed against respondent no.3. Bailable warrant against respondent no.1 and 2 in sum of Rs.3000/-(three thousand) with a surety of like amount each.”
5.0 Thus, out of the three respondents, this criminal appeal requires to be proceeded against respondent No.2, original accused No.2, only.
6.0 The prosecution case, which is narrated in Para-2 of the judgment of the learned Additional Sessions Judge, reads as under, “The original complainant, Mohmedhanif Abdulgafar Shaikh, is the brother of the deceased, Abdulhamid, and he is residing at Dariyapur Limbdi Chowk, beside Banani Masjid in Dahela of Zahid Chacha. One Munirbhai resides beside the house of the complainant, Mohmedhanif, and the daughter of Munirbhai, Noorjahan, is engaged with accused No.1. Accused No.1, though, not legally married to Noorjahan, used to frequently come to meet her and it was not liked by the deceased and some other persons. On the date of alleged incident i.e. on 05.07.1990, at about 8:45 p.m., the complainant Mohmedhanif, his friend Aiyubkhan Pathan, Mohmedhanif Usmanbhai, Sabirhussein Abduljabbar, and the deceased Abdulhamid Abdulgafar were standing in Limbdi Chowk, Nr. Municipal Bus Stop and were talking about going to see movie 'Dil' in Geeta theatre. At that time accused No.1 came there and started quarreling with Abdulhamid. Abdulhamid told accused No.1 that, “though, you are not married to Noorjahan, the daughter of Munirbhai, you come to see her and it is not proper”. This enraged accused No.1, who started abusing Abdulhamid in the name of his mother and sister. At that time, accused No.2 was present and he told accused No.1, “What are you looking for, hit him I am here” and on his saying so accused No.1 pulled out a knife from his person and delivered two blows on the left side of the chest of the Abdulhamid, and Abdulhamid tried to run towards his house for safety. But he fell down near the box, kept for feeding pigeons. When the complainant, Mohmmedhanif Abdulgafar, tried to catch the accused, the accused delivered a knife blow behind the ear of the complainant causing injury. The complainant stepped back for his safety and when the friends of the complainant, Mohmmedhanif, Aiyub and Sabbir tried to catch the accused No.1, accused No.1 warned them they would meet with the same fate as that of the injured and thereby threatened them of dire consequences. Thereafter, the complainant, Mohmmedhanif went to his house to call his father, but, since his father was not at home, he went to masjid and from there they went to V.S. Hospital. In the meantime, the witness Aiyub etc. had taken Abdulhamid to V.S. Hospital and the doctors in the hospital declared him dead. Thereafter, the Head Constable, Ramjibhai Devjibhai, who was on duty at V.S. Hospital gave a vardhi of the incident to Dariyapur Police Station, which was registered by P.S.O., Mansingbha of Dariyapur Police Station and gave a copy of the same to P.S.I., Shri. Gambhirsinh Solanki. On the basis of the said vardhi, P.S.I., Shri. Gambhirsinh went to V.S. Hospital and took the complaint of the complainant, Mohmmedhanif Abdulgafar vide Mark 13/2 and sent the same for registration. On the basis of the said complaint, Dariyapur Police registered the complaint against the present accused persons, for the offences as above. Thereafter, P.S.I., Shri. Solanki, carried out the inquest panchnama of the deceased and sent the dead-body for post-mortem to Civil Hospital. One Dr. Deven Desai, carried out the post-mortem of the dead-body on 06.07.1990 at Civil Hospital. He noticed internal as well as external injuries on the dead body and certified that the deceased expired on account of such injuries. Thereafter, the investigation, in this case, was taken over by P.I., Shri. V.C. Thakur of Dariyapur Police Station and the P.I., Shri. Thakur, recorded the statements of the witnesses related to the case and carried out the panchnama of the scene of offence at night. During the course of investigation, P.I., Shri. Thakur, carried out the search of house of accused Nos. 1 and 2. Thereafter, Constable Jayantibhai produced the clothes of the deceased and they were seized vide Panchnama, Exhibit-20, in the presence of panchas. P.I., Shri. Thakor, then, recorded the statements of several additional witnesses. The accused No.1 appeared before the police on 08.07.1990 and panchnama of his physical condition was drawn vide Mark 13/7 and since the accused had received injury on the right hand along with 'Yadi' he was sent to hospital. At Civil Hospital, Dr.
Sureshbhai Nayak examined accused No.1 and gave Injury Certificate, Exhibit-14. Since, accused No.1 voluntarily shown willingness to produce muddamal knife, two panchas were called and the accused produced knife from a heap of bricks, which was seized after drawing discovery panchnama and the same was sealed after pasting slips containing signatures of the panchas. In the meantime, panchnama of the physical condition of accused No.2 was drawn. Accused No.3, on remaining present before the police on 10.07.1990, the panchnama of his physical condition was also drawn. Thereafter, P.I., Shri. Thakur, sent the seized muddamal to F.S.L. and on receipt of the report of F.S.L., same was kept with the other papers. Thereafter, on completing the routine investigation, P.I., Shri. Thakur produced the charge-sheet against the accused in Metropolitan Magistrate Court No.13, Ahmedabad. Since, out of the offences alleged against the accused persons, the offence under Section-302 is triable exclusively by Sessions Court, the Metropolitan Magistrate, Court No.13 vide committal order 15.11.1990 sent the case for further proceedings to City Sessions Court, Ahmedabad, and hence, this case stood for trial of the offences against the accused, as stated above.”
7.0 During the trial, the accused pleaded not guilty to the charges and was tried for the above referred offences. After recording the evidence of witnesses and considering the records and papers of the case, the learned Additional Sessions Judge acquitted the accused of all the charges levelled against them and hence, the present criminal appeal has been preferred by the State of Gujarat.
8.0 To prove the case, after framing of the charge, following prosecution witnesses were examined,
(1) Dr. Sureshbhai Manibhai Nayak, P.W.-
1 (Exhibit-12),
(2) Mohmedhainf Abdulagafar Shaikh, P.W.-2 (Exhibit-15),
(3) Aiyubkhan Liyakatkhan, P.W.- 3(Exhibit-24)
(4) Mohmedhainf Usmanbhai, P.W.-4 (Exhibit-25)
(5) Dr. Deven Govindbhai Desai, P.W.-5 (Exhibit-26)
(6) Sabirhussein Abdulajabar, P.W.-6 (Exhibit-28)
9.0 Besides the aforesaid oral evidence, documentary evidence narrated below forthcoming on the record were also taken into consideration by the learned Additional Sessions Judge:
(1) A photocopy of the Vardhi from V.S. Hospital, dated 05,07.1990, (Exhibit-16)
(2) Complaint by Mohmmedhanif Abdulgafar, (Exhibit-),
(3) Report of registering C.R. No. as per the complaint, (Exhibit-17)
(4) Inquest Panchnama of Dead Body, (Exhibit-18)
(5) Panchnama of Scene of Offence, (Exhibit-19)
(6) Panchnama of the Clothes Found on the Dead Body, (Exhibit-20)
(7) Panchnama of Physical Condition of the Accused, (Exhibit-30)
(8) Panchnama, as per Section-27, of Discovery of Weapon at the instance of accused, (Exhibit-32)
(9) Certificate of Treatment of Witness Mohmmedhanif, (Exhibit-36)
(10) P.M. Note of the Dead Body, (Exhibit-27)
(11) Injury Certificate of the Accused, (Exhibit-14)
(12) List of Muddamal sent to F.S.L., (Exhibit-21)
(13) Receipt of F.S.L., (Exhibit-22)
(14) Opinion of F.S.L., (Exhibit-23)
10.0 After closing pursis was filed by the prosecution, the learned Additional Sessions Judge recorded further statement of the accused under Section-313 of the Code of Criminal Procedure, 1973, by which the accused submitted that on the basis of false evidence, he was falsely involved in the case.
11.0 The learned APP, Mr. Pujari submitted that the learned Judge ought to have accepted the evidence of the eye-witnesses, namely Mohmedhanif Abdulagafar, Aiyubkhan Liyakatkhan, Mohmedhanif Usman and Shabbirhusen Abduljabar as they have fully supported the case of the prosecution and moreover, their evidence are, corroborated by the evidence on record.
11.1 The learned APP, further submitted that the learned Judge has not properly appreciated the evidence of the aforesaid witnesses with regard to the medical and other evidences on the record of the case.
11.2. The learned APP, lastly, submitted that there was enough evidence led by the prosecution to come to the conclusion that the respondents are guilty of the offence they were charged with and, therefore, they ought to have been convicted for the said offences.
12.0 The learned Advocate, Mr. Barot, for the respondent No.2, submitted that the trial Court has rightly appreciated the evidence which is forthcoming on the record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. He, further, submitted that there are glaring contradictions in the depositions of the prosecution witnesses which go to the root of the matter. The accused No.3, has been involved without any evidence on record falsely is the finding of the learned trial Judge after considering and discussing all the evidence forthcoming on the record at length and the said action on the part of the prosecution creates a suspicion on the alleged allegations levelled against accused Nos. 1 and 2. He also submitted that this being an appeal against an order of acquittal, the judgment and order rendered by trial Court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. He has, therefore, prayed that the appeal be dismissed.
13.0 We have considered the rival submissions made by the learned Advocates for the parties. As per the submissions of the learned APP for the appellant-State of Gujarat, learned Judge ought to have accepted the evidence of the eye- witnesses namely, Mohmedhanif Abdulgafar(Exhibit- 15), Aiyubkhan Liyakatkhan(Exhibit-24), Mohmedhanif Usman (Exhibit-25) and Shabbirhusen Abduljabar(Exhibit-28). It is to be noted that the complainant is the real brother of the deceased and both were residing together. The witness, Aiyubkhan Liyakatkhan(Exhibit-24) is the friend of the deceased as well as the complainant. The complainant is residing on the first floor of the house of the Mohmedhainf Usman(Exhibit-25) and deceased was also residing on the first floor of the house of the said witness(Exhibit-25) along with the complainant. The witness Shabbirhusen Abduljabar(Exhibit-28) has clarified in his deposition that both the deceased and his brother, Mohmedhanif Abdulgafar, are his nephews as well as friends. As such, above said witnesses are related with each other and we cannot say that these witnesses are independent witnesses as submitted by the learned Advocate for respondent No.2, and there appears force and substance in it. In para-7 of the judgment and order dated 25.07.1991 passed in Sessions Case No.311 of 1990, the learned Additional Sessions Judge has observed as under, “7. ... As per the say of this witness Mahammad Hanif, who is complainant as well as who has taken part with a view to stop the quarrel exh.-15, the accused no.1 gave him blow with a Rampuri knife near the left ear and he caused injury to him but it is necessary to note that the medical evidence on the record makes the statement of this witness Mahammad Hanif exh.15 suspicious. As per the say of the Medical Officer Dr. Dinesh Chandana exh.15 who examined this witness on the same day in the hospital, this witness had injuries of abrasion on the left thigh and at the backside of left ear at the left side on the part of head. Therefore, it becomes clear from this witness Dr. Dinesh exh.35 and the medical certificate exh.36 that Mahammad Hanif had sustained injuries on the left thigh and at the backside of left ear. This witness Mahammad Hanif exh.15 does not state any such fact in his deposition that he was given blow on the left thigh and he sustained such injury. Mahammad Hanif exh.15 is not able to explain the fact as to how he had sustained injury on his thigh. Moreover, it becomes clear from Dr. Dinesh Chandana exh.35 and the medical certificate exh.36 that this witness Mahammad Hanif has stated before him that he was caused injury with a razor. As I stated above, this witness Mahammad Hanif Abdulgafar was examined only within some time in the hospital after the incident. His injuries were quite ordinary. Therefore, if this witness Mahammmad Hanif exh.15 had really caused injuries with a Rampuri knife, it cannot be believed at all that this witness would not have dictated the said fact to Dr. Dinesh and instead he dictated that injuries have been caused with a razor. Therefore, according to me, the medical evidence of this witness Mahammad Hanif Abdulgafar exh.15, is also suspicious. Thus, if the evidence of this witness Mahammad Hanif Abdulgafar is scrutinized with care and precaution, it would create a suspicion as the inconsistencies crept therein cannot be denied.”
14.0 As submitted above, at the time of admission of the appeal, this Court had dismissed the present appeal against respondent No.3 and so far as respondent No.3 is concerned while delivering the judgment and order dated 25.07.1991, passed in Sessions Case No.311 of 1990, in para-15 it is observed as under, Investigating Officer has not been able to make the said fact clear in any way as to for which reason the accused no.3 has been arrested in this case and as to whether the accused no.3 has played any role or not at the time of occurrence. Therefore, if such fact existed, it cannot be denied that the accused no.3 might have been implicated falsely in this case for any incomprehensible reason in order to harass him. Any of the eye witnesses also did not say a single word with regard to the presence of the accused no.3 at the time of incident. Moreover, it is also not clarified that the deceased or the brother of the deceased had any prior enmity with the accused no.3. Therefore, the police might have made efforts to implicate the accused no.3 falsely for any reason in this case and has implicated him which cannot be denied. Therefore, if the accused no.3 is implicated falsely in the case, it cannot be said that the case of the prosecution against other accused persons may also be proved beyond doubt. Moreover, it is also essential to note that there is no evidence of criminal conspiracy at all on record. The learned APP has clearly admitted this fact. He also admits it clearly that this case is not tenable in any way against the accused no.3. Thus, as I stated above, if the evidences on record are considered entirely with care and precaution, it is proved beyond doubt that the evidences on which the prosecution has relied on for connecting the accused no.1 and 2 with the incident, are not authenticated, reliable and believable. Therefore, the accused nos. 1 and 2 should get benefit of doubt. Moreover, it is also essential to note that there is no authenticated and reliable evidence on record with regard to the fact that the accused no.1 was holding muddamal knife at the public place and violated the notification issued by the Police Commissioner. Thus, considering as a whole, the offences as mentioned in the charge -sheet against the accused nos. 1 and 2, are not proved beyond doubt due to want of necessary and authenticated evidences. Therefore, it is not just and proper to convict the accused Nos. 1 and 2 for such offences. It is also essential to note that there is no evidence at all against the accused no.3 and no offence is proved. The learned A.P.P. has clearly admitted the said fact. Therefore, in such circumstances, according to me, in this case, no offence is proved undoubtedly and clearly against the present accused persons. Therefore it is not proper and just to convict the accused persons for any offence out of the offences mentioned in the charge-sheet. ”
15.0 The evidence on record, as stated above, prompted us to verify the role attributed to accused No.3 which had been narrated while framing of Charge at Exhibit-2, dated 16.01.1991. First of all we will see the allegations made against the accused No.3 in the charge at Exhibit-2, “... The accused No.3 said “teach him a lesson” and saying so he passed on a 'Rampuri' knife to accused No.1.
15.1. On a query raised by the Court to the learned Advocates for the parties to point out the evidence on which the trial Court has put reliance and framed the above referred charge against respondent No.3. Even after going through the records and proceedings, the learned APP as well as the learned Advocate for respondent No.2 have failed to lay their hands on any such document which will reveal the above story of the prosecution case. We have also verified the records and proceedings of the trial Court, but, we could not find the said documents on which the learned trial Judge has put reliance and framed the above referred charge against accused No.3. The learned APP then submitted that while submitting charge-sheet in Column No.5 the said story has been advanced by the prosecution about the said charge and it appears that while
looking for any evidence on the said aspect, blindly reproduced while framing above referred charges, dated 16.01.1991, at Exhibit-2 in Sessions Case No.311 of 1990. It goes without saying that in a criminal trial, charge-sheet is an important document and it is the heart of the case. Before framing the charge, the Court concerned should minutely study all the relevant documents, on the basis of which the charge is to be framed. While framing the charge at Exhibit-2 so far as accused No.3 is concerned, without verifying the relevant documents simply placing blind faith on the description given in Column No.5 of the charge-sheet, charge has been framed against the said accused No.3. This practice in the trial Court is required to be deprecated by all means.
15.2 The opening of the case of the prosecution must always be confined to matters which are supported by the evidence. It would be wholly improper for any Judge to open any matter in respect whereof no evidence is forthcoming on record.
15.3 Functions of a Judge has been explained by the Apex Court in Para-12 in the matter of “DILAWAR BALU KURANE Vs. STATE OF MAHARASHTRA”, reported in (2002) 2 SCC 135, which reads as under'
“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)]”.
15.4 We are of the opinion that if while framing the charge at Exhibit-2, dated 16.01.1991, by the Additional City Sessions Judge, Court No.15, in Sessions Case No.311 of 1990 if some care which was required to be taken had in fact been taken, then, the accused No.3 of the said case could have been discharged for want of any prima facie evidence against him. But, it appears that while framing the said charge the court has placed blind faith on the description given in Column No.5 of the charge-sheet and it led accused No.3 to suffer the agony which he had already undergone for no fault of his. Time and again this Court has drawn the attention of the trial Courts not to commit the mistake which has been referred above. However, with a view to recollect, the circular which had been circulated earlier, if thought fit by the Hon'ble Chief Justice, may be issued to the trial Court again. The Registrar General is directed to go through the same and do the needful following the due procedure for the same with a view to deprecate the method adopted above by the concerned trial Judge.
16.0 It is well settled principle of law that in acquittal appeals, where there is a possibility of two views, the one which is favourable to the accused should be adopted. It is also well settled principle of law that the Appellate Court would be slow in interfering with an order of acquittal until and unless the judgment of the Trial Court is perverse or demonstrably unsustainable. In the present appeal, we find that the reasons given by the trial Court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the Trial Court has committed any error in acquitting the accused.
17.0 It is a settled legal position that in acquittal appeal, the Appellate Court is neither required to re-write the judgment nor to give a fresh reasoning, when the reasons assigned by the court below are found just and proper. Such principle is laid down by the Hon'ble the Apex Court in the case of “STATE OF KARNATAKA VS. HEMAREDDY”, reported in AIR 1981 SC 1417, wherein it is held as under:
“.. .. This Court has observed in Girija Nandini Devi Vs. Bigendra Nandini Chaudhary, (1967)1 SCR 93 : (AIR 1967 SC 1124) 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.”
18.0 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.
19.0 In the light of aforesaid discussion, the Court finds no substance in the appeal. The appeal fails and is DISMISSED. The impugned judgment and order dated 25th July, 1991, passed by the learned Additional Sessions Judge, Ahmedabad City in Sessions Case No.311 of 1990 is CONFIRMED. Bail bonds shall stand CANCELED.
19.1 The office is DIRECTED to FORWARD the copy of the order to THE REGISTRAR GENERAL, High Court of Gujarat, Ahmedabad, so that he can go through Paragraph No.15 and can do the needful.
(RAVI R.TRIPATHI, J.)
Umesh/
(G.B.SHAH, J.)