Gujarat High Court
Naranbhai @ Naniyo Khimjibhai Vadher vs State Of Gujarat on 31 January, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 3025 of 2008
With
R/CRIMINAL APPEAL NO. 132 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes
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NARANBHAI @ NANIYO KHIMJIBHAI VADHER & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR ANIL S DAVE(242) for the Appellant(s) No. 1,2
MR. ROHAN MAJMUDAR FOR MR NK MAJMUDAR(430) for the Appellant(s)
No. 1
MR. JAY MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE S.V. PINTO)
1. Criminal Appeal No. 3025 of 2008 has been filed by the appellants - original accused under Section 374(2) of the Code of Criminal Procedure and Criminal Appeal No. 132 of 2009 has been filed by the State for enhancement of sentence. Both the appeals are against the judgment and Page 1 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined order dated 28.11.2008 passed by the 5 th Additional Sessions Judge, Surat in Sessions Case No. 16 of 2006 and as they both have arisen out of the same impugned judgement and order, have been disposed by this common judgment.
1.1 The appellants were tried for offences under Sections 307, 452, 34 and 188 of the Indian Penal Code and were convicted and sentenced to simple imprisonment for four years for the offence under Section 307 read with Section 34 of the IPC, simple imprisonment for one year and fine of Rs 500/- (Rupees Five Hundred only) and in default, simple imprisonment for 15 days for the offence under Section 452 read with Section 34 of the IPC and fine of Rs 200/- (Rupees Two Hundred only) and in default, simple imprisonment for 10 days for the offence under Section 188 of the IPC. All the sentences were ordered to run concurrently, with any period of detention to be set off against the sentence. 1.2 The appellants are referred to as the accused in the rank and file as they stood in the original case for the sake of convenience, clarity and brevity.
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2. The brief facts that emerge from the record of the case are as under:
2.1 From the evidence on record, it appears that on 07.09.2005, between 01:30 to 02:00 am, the complainant -
Salimkhan Haroonkhan Pathan was working on accounting tasks at his office "Mahek Travels" along with his wife Jiyaben Salimkhan Pathan and at that time, the accused no. 1 - Naranbhai @ Naniyo Khimjibhai Vadher - the first husband of Jiyaben and the accused no. 2 - Ketanbhai Bhanjibhai Dabhi entered the office with knives and assaulted the complainant Salimkhan and his wife Jiyaben. The accused no. 1 attempted to stab the complainant in the stomach but the complainant caught the knife with his right hand, injuring his palm. The accused no. 2 assaulted Jiyaben and she sustained injuries on her head and various parts of her body with severe bleeding from her neck. The accused no. 1 also inflicted injuries on the complainant's chest on the left side, head, left shoulder, waist and left knee. As the complainant shouted, people residing nearby rushed to the place of incident and both the accused fled Page 3 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined from the place of incident. The complainant and his wife were taken to Lokhat Hospital by the complainant's mother and others for treatment and at around 03:00 am, a complaint was filed at Chowk Bazar Police Station, Surat by the complainant - Salimkhan Haroonkhan Pathan from the ICU of Lokhat Hospital where he was undergoing treatment which was registered as I - C. R. No. 203/2005 under Sections 307, 452, 34 and 188 of the IPC.
2.2 The Investigating Officer collected evidence, drew the necessary panchnamas, recovered the weapons, seized the victims' clothes, recorded the statements of the connected witnesses and after the accused were arrested, a Test Identification Parade was conducted and the seized articles were sent for analysis to the Forensic Science Laboratory. After the FSL reports were received, a charge-sheet was filed before the 9th Additional Civil Judge and Judicial Magistrate First Class, Surat and as the case was exclusively triable by the Sessions Court, Surat a committal order under Section 209 of the Code of Criminal Procedure was passed and the case was registered as Sessions Case No. 16/2006. Page 4 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025
NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined 2.3 The accused appeared before the learned Trial Court and it was verified that the provisions of Section 207 of the Code of Criminal Procedure were complied with and a charge was framed against the accused at Exh. 6, and their statements were recorded at Exhs. 7 and 8 respectively. The accused denied all the charges and the evidence of the prosecution was taken on record.
2.3 The prosecution examined the following witnesses in support of their case :
Sr. PW Name of the Witness Exh.
No. No.
1 1 Salimkhan Haroonkhan Pathan 9D
2 2 Jiyakhan Salimkhan Pathan 11
3 3 Salmaben Haroonkhan Pathan 13
4 4 Haroonkhan Yusufkhan Pathan
5 5 Dr. Tejas Sarlal Jariwala 16
6 6 Yusuf Daud Shaikh 19
7 7 Ashok Jamnadas Karanjiya 21
8 8 Mohammad Sharif Gulam Mustufa 22
Shaikh
9 9 Hetalbhai Keshavbhai Chauhan 24
10 10 Gulam Mohammad Shafi Mohammad 26
Shaikh
11 11 Mohammad Yunus Mohammad Yunus 28
Pathan
12 12 Laxmansinh Ratansinh Parmar 29
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NEUTRAL CITATION
R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025
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2.4 The prosecution produced the following documents in
support of their case :
Sr. Description of Document Exh.
No.
1 Complaint 10
2 Treatment Certificate 17
3 Treatment Certificate 18
4 panchnama of Test Identification Parade 20
5 panchnama of the place of offence 23
6 Arrest panchnama 25
7 panchnama of clothes 27
8 Yadi 30
9 Public notice 31
10 FSL Report 32
11 Serology Report 33
12 ISL Report 34
13 Serology Investigation Report 35
2.5 After the learned APP filed the closing pursis at Exh.
36, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded, wherein, both the accused denied all the evidence of the prosecution. The accused refused to step into the witness box or examine witnesses in support of their defence and after hearing the arguments of the learned APP and the learned advocate for the accused, the learned Trial Court found both accused Page 6 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined guilty of offences under Sections 307, 452 and 188 of the IPC and sentenced them as mentioned above.
3. Being aggrieved and dissatisfied with the judgment and order of conviction, the appellants have filed Criminal Appeal No. 3025 of 2008 and the State has filed Criminal Appeal No. 132 of 2009 for enhancement of the sentence. 3.1 The appellants of Criminal Appeal No. 3025 of 2008 have mainly contended that the learned Trial Court has failed to appreciate that the prosecution did not prove the case beyond reasonable doubts and no offence under Section 307 of the IPC was made out as the injuries sustained by Jiyaben were not serious as there was no vein cut and the neck injury was simple. That all the panch witnesses have been declared hostile and have not supported the case of the prosecution and looking to the entire evidence on record, the evidence is not properly appreciated by the learned Trial Court. The learned Trial Court has wrongly concluded that the offences are proved beyond reasonable doubts and the judgement and order of conviction is erroneous and bad in law and is required to be Page 7 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined quashed and set aside and the accused be acquitted for the offences.
3.2 Criminal Appeal No. 132 of 2009 has been filed for enhancement by the Appellant State mainly stating that the injuries caused by the accused are clearly indicative of the fact that there was a common intention of the accused to cause death of the injured and the injuries were sufficient to indicate that death could be caused. The prosecution has proved that Jiyaben was transferred to the ICU and her condition was serious and the act of the accused was an attempt to murder which was proved by the prosecution. The learned Trial Court has passed the impugned judgement and order of sentence which is unduly lenient and grossly inadequate and the sentence of the accused must be enhanced.
4. Heard learned Advocate Mr. R. N. Majmudar for learned advocate N. K. Majmudar for the appellants of Criminal Appeal No. 3025 of 2008 and respondents of Criminal Appeal No. 132 of 2009 and learned APP Mr. Jay Mehta for the the appellant State in Criminal Appeal No. 132 of 2009 Page 8 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined and the respondent in Criminal Appeal No. 3025 of 2008. We have also reviewed the impugned judgment and order as well as the evidence presented by the prosecution before the learned Trial Court.
5. Learned advocate Mr. R.N. Majmudar for learned advocate Mr N.K. Majmudar has submitted that the learned Trial Court has seriously erred in coming to a conclusion that the offences against the appellants have been proved beyond reasonable doubts and the medical evidence has not been properly appreciated. Looking to the injuries caused on the body of the victim, the offence under section 307 of the IPC is not attracted and both the appellants are wrongly convicted for the offence under Section 307 of the IPC. On scrupulous appreciation of the evidence of the eyewitness, there is nothing on record for which the appellants could have been punished and the learned Trial court has failed to appreciate the evidence of PW1 - Salimkhan Haroonkhan Pathan as the incident has occurred between 1:30 am and 2:00 am and at that relevant point of time, except for the victim, no one was present at the place of incident. That in Page 9 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined fact, even in the cross-examination of PW2 Jiyaben Salimkhan, it is on record that the appellant no. 1 had not come to her new matrimonial place with regard to child custody and no incident had ever occurred between the accused no. 1 and victim Jiyaben who was the first wife of the accused no. 1. She has also admitted that even if the accused no. 1 had seen her by accident, he had not done anything and she had not filed any complaint against the accused no. 1 during her marriage with him. That there are no eyewitnesses to the incident and the panch witnesses have turned hostile and there is no evidence for which the accused can be convicted and hence, the impugned judgement and order of conviction is required to be quashed and set aside and the enhancement appeal must be rejected.
6. Learned APP Mr. Jay Mehta has taken this Court through the entire evidence of the prosecution and has submitted that the learned Trial Court has thoroughly appreciated each and every evidence on record and the complainant and his wife were eye witnesses to the incident Page 10 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined and they have seen the accused assaulting them. It is on record that when the accused attempted to stab the complainant in the stomach, the complainant caught the knife with his right hand as a result of which he sustained an injury to his palm which is corroborated with the medical evidence and there is no reason to doubt the testimony of the witnesses and the presence of the accused at the scene of crime is proved beyond reasonable doubts. The complainant and his wife were known to the accused as the accused no. 1 was earlier married to the victim Jiyaben making it unlikely that the accused were falsely implicated. The presence of injuries inflicted by both the accused have been proved by the complainant and his wife and is corroborated by evidence of the Medical Officer and it has reinforced the case of the prosecution. The medical evidence indicates that the injuries were sufficient to cause death and learned APP Mr. Jay Mehta has urged this Court to reject the appeal of the appellants and to allow the enhancement appeal filed by the State.
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7. Before we proceed to decide the appeal, it would be appropriate to reproduce the observations of the Apex Court in the case of Lal Mandi V. State of West Bengal reported in 1995 Cri LJ 2659 regarding the duty of the appellate Courts in hearing of appeals in conviction matters which is as under:
5. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate.Page 12 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025
NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence......
7.1 In RE: Right to Privacy of Adolescents Suo Moto Writ Petition (C) No. 3/2023 with Criminal Appeal No. 1451/2024 decided on 20.08.2024, the Apex Court in para 13 has observed as under:
13. When a Court deals with an appeal against an order of conviction, the judgment must contain (i) a concise statement of the facts of the case, (ii) the nature of the evidence adduced by the prosecution and the defence, if any, (iii) the submissions made by the parties, (iv) the analysis based on the reappreciation of Page 13 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined evidence, and (v) the reasons for either confirming the guilt of the accused or for acquitting the accused. The appellate court must scan through the evidence, both oral and documentary, and reappreciate it. After reappreciating the evidence, the appellate court must record reasons for either accepting the evidence of the prosecution or for disbelieving the evidence of the prosecution. The Court must record reasons for deciding whether the charges against the accused have been proved. In a given case, if the conviction is confirmed, the Court will have to deal with the legality and adequacy of the sentence. In such a case, there must be a finding recorded on the legality and adequacy of the sentence with reasons. The ultimate object of writing a judgment is to ensure that the parties before the Court know why the case is decided in their favour or against them. Therefore, judgment must be in a simple language. The conclusions recorded by the Court in the judgment on legal or factual issues must be supported by cogent reasons.
8. In light of the above, before we proceed to decide the appeals, it is appropriate to review the evidence presented by the prosecution in the case.
8.1 The prosecution has examined PW1 - Salimkhan Haroonkhan Pathan and the witness is the complainant Page 14 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined who has stated that he got married to Jiyakhan on 01.10.2003 and earlier Jiyaben was married to Narayanbhai Khimjibhai and they had taken a divorce. That Narayanbhai did not like that she had married him and on one occasion, he had come to the house of the complainant and abused him and the complainant had filed a police case about the incident. On 07.09.2005 between 01.30 am to 02.00 am, he and his wife were sitting in the office and as they were selling helmets, the sale was closed at around 01.00 am.
That they were sitting and counting money and at that time, the accused no. 1 and another thin person came into the shop and the accused no. 1 had a knife in his hand. The accused no. 1 assaulted the complainant with the knife on his shoulder at the back and he and his wife immediately stood up and at that time, the thin man pushed his wife. The thin man also had a knife and he cut the throat of his wife and she was injured on her under arm, hand and little finger. That when they tried to hit him on his stomach, he placed his left hand on the stomach and was injured on the left palm by the accused no. 1. That he was also injured on Page 15 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined his chest, back, thigh and right little finger. That he caught hold of the accused no. 1 but he managed to release himself and run away. He walked to Lokhat Hospital and his mother and others took his wife to Lokhat Hospital where they were admitted in the ICU and he filed the complaint which is produced at Exh. 17. During the cross examination, the witness has stated that he has not described the other person in the complaint and he does not know how the accused no. 2 was brought at the time of the Test Identification Parade. That no person from his street had caught hold of the accused and many people had gathered at the time of the incident. That his wife was taken to the hospital by others but he had walked to the Hospital. 8.2 The prosecution has examined PW2 - Jiya Salimkhan at Exh. 11 and the witness is the injured and wife of the complainant who has stated that on 07.09.2005, she was in the shop with her husband between 01.30 am and 02.00 am and while they were doing accounting tasks, two persons came from behind, out of that one was her ex- husband and assaulted her husband with a knife. That she Page 16 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined ran out of the shop and at that time, the other person assaulted her with a knife on her neck, hand and under arm. That she shouted and she sat outside of the shop and her husband was being assaulted by the accused no. 1. That she does not know what had happened thereafter, and she was taken to Lokhat General Hospital for treatment and admitted in the ICU. Her husband filed the complaint and during the cross-examination, the witness has stated that after she had married Salimkhan Haroonkhan, the accused no. 1 did not come to her house and once they had a fight in the Bahumali Court for custody of the children. That she did not want to handover the custody of her children and besides this, no other incident had taken place. That the accused would not do anything when she met him on the road and she had made her children accept Islam. That she was working as a teacher and in her statement, she has not mentioned the description of the accused no. 2. 8.3 The prosecution has examined PW3 - Salmaben Haroonbhai at Exh. 13 and the witness is the mother of the complainant who has stated that on 07.09.2005 at around Page 17 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined 02:30 am, she was at her house and suddenly she heard shouts and came down and saw that her daughter-in-law Jiya was bleeding from the neck and head and on inquiry from Jiya, she was told that her ex-husband and one tall man had come and assaulted her and her husband with a knife. That they were taken to Lokhat Hospital and she does not know the persons who had assaulted her son and daughter-in-law.
8.4 The prosecution has examined PW4 - Haroonkhan Yusufkhan Pathan at Exh. 14 and the witness is the father of the complainant who has stated that the incident had occurred on 07.09.2005 while he was at home and he rushed out of his house when he heard shouts and saw that his daughter-in-law was lying injured on the road and was bleeding from her neck.
8.5 The prosecution has examined PW5 - Dr. Tejas Sarlal Jariwala at Exh. 16 and the witness has stated that he was on duty as a Medical Practitioner at Lokhat Hospital on 07.09.2005 and Salimkhan Haroonkhan and Jiya Salimkhan Pathan were brought for treatment. Salimkhan, Page 18 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined had in the history, stated that he and his wife were counting money in Shop No. 1 at Rampura and at that time, one person came and attacked his wife with a sharp instrument. He tried to protect his wife and at that time, sustained many injuries over his body on 07.09.2005 at 02.00 am. On examination, patient Salimkhan Haroonkhan Pathan had sustained the following injuries:
1. 2 cm X 1 cm incised wound over occipital region.
2. 15 cm X 2 cm incised wound over the left shoulder with muscle cut.
3. 10 cm X 1 cm incised wound on the left side over left chest.
4. 5 cm X 2 cm incised wound on the left hand.
5. 5 cm X 1.5 cm incised wound on the left side of the back
6. 5 cm X 1 cm incised wound on the left knee.
The injuries could be caused by a sharp weapon like a knife or sword and were grievous on vital parts of the body and could cause the death of the patient in ordinary course. The injuries of Jiyaben Salimkhan Pathan were as follows:
1. 15 cm X 2 cm incised wound on the right side of the neck
2. 15 cm X 2 cm incised wound on the left side of the
3. 10 cm X 1 cm incised wound on the right cheek
4. 5 cm X 1 cm incised wound over parietal region Page 19 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined
5. 2 cm X 1 cm incised wound on the occipital region
6. 5 cm X 1 cm and 4 cm X 1 cm incised wound on left arm and 4 cm X 1 cm incised wound over left forearm
7. 20 cm X 3 cm incised wound on the right side of the upper back
8. 2 cm X 1 cm incised wound on the lower side of the left forearm
9. Crushed wound on the first finger, with a palpable fracture
10. 10 cm X 2 cm incised wound over upper part of right side over neck The injuries of Jiyaben could be caused by a sharp weapon like a knife or a sword and were grievous in nature and could cause death in ordinary course.
Both the injured were admitted as indoor patients in the Hospital from 07.09.2005 at 2:00 am to 16.09.2005. The witness has produced the medical certificates of Salimkhan and Jiyaben at Exh. 17 and Exh. 18 respectively.
During the cross examination, the witness has admitted that the description of the assailants was not provided in the medical history and the certificate did not specify whether the injuries were vertical or horizontal or if any veins were cut. The witness has admitted that the Page 20 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined injuries could have been caused by an iron sheet but multiple injuries simultaneously could not be caused by the iron sheet and the injuries were not deep and no additional surgery was required to stop the bleeding. Both victims were stable after two hours and the complainant was conscious and provided the medical history, indicating that they were injured by only one man but Jiyaben did not give the medical history herself.
8.6 The prosecution has examined PW6 - Yusufbhai Daudbhai Sheikh examined at Exh. 19 and PW7 - Ashokbhai Jamnadas Karanjia examined at Exh. 21 and both the witnesses are the panch witnesses of the Test Identification Parade panchanama produced at Exh. 20. Both the witnesses have not supported the case of the prosecution and have been declared hostile and have stated that they had only signed the prepared panchnama. The witnesses have been cross-examined by the learned APP but nothing to support the case of the prosecution has come on record.
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NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined 8.7 The prosecution has examined PW8 - Mohammed Sharif Gulam Mustafa Shaikh at Exh. 22 and the witness is the panch witness of the panchnama of the place of offence which is produced at Exh. 23. PW9 - Hetalbhai Keshavbhai Chauhan examined at Exh. 24, is the panch witness of the arrest panchnama of the accused produced at Exh. 25 by which the accused no. 2 had voluntarily produced the weapons used in the incident. PW10 - Ghulam Mohammed Shafi Mohammad Shaikh examined at Exh. 26 and PW11 - Mohammed Yunus Mohammad Yusuf Pathan examined at Exh. 28 are the panch witness of the panchnama produced at Exh. 27, whereby the clothes of the complainant and injured as well as the knife which was used by the accused no. 1 and snatched by the complainant was produced by one Mohammad Aslam Haroonkhan Pathan and seized by the Investigating Officer in the presence of the panch witnesses. All these panch witnesses have not supported the case of the prosecution and have been declared hostile and they all have stated that they had merely affixed their signatures on the panchnamas that were prepared on the Page 22 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined say of the police and they have not witnessed any seizure of clothes or the place of offence.
8.8 The prosecution has examined Laxmansinh Ratansinh Parmar at Exh.29 and the witness was working as the PSO in Chowk Bazar Police Station on 07.09.2005 and he had gone to Lokhat Hospital and recorded the complaint of the complainant. That as injured Jiyaben was serious, he had written the Yadi for recording her dying declaration and had seized the clothes worn by the complainant and injured at the time of the incident and also the knife which was used by the accused no. 1 and snatched by the complainant and produced by the complainant. The witness had also given the Yadi for the Test Identification Parade and had sent the muddamaal to the FSL. During the cross-examination, the witness has stated that the description of the accused was not given and no blood stains were found on any place except outside the shop and no weapons were discovered or recovered from the accused no. 1.
9. We have minutely dissected the evidence of the prosecution in light of the judgements mentioned above and Page 23 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined we find that in the instant case, the complainant - Salimkhan Haroonkhan Pathan and injured Jiya Salimkhan Pathan are the eyewitnesses to the incident. The accused no. 1 is the ex-husband of injured Jiya Salimkhan Pathan and the motive, as per the case of the prosecution, is that the accused no. 1 was unhappy with his children accepting Islam religion and there was a dispute of custody of children between injured Jiya Salimkhan Pathan and the accused no. 1. On perusal of the entire evidence. as there are no independent eye witnesses to the incident, the prosecution has to establish the motive but there is no document on record to show that there was any dispute between the parties. Injured Jiya Salimkhan Pathan has during the cross-examination admitted that from the time of her marriage to the complainant, the accused no. 1 did not come to her house and they had a quarrel only once at the Bahumali Court as the accused no. 1 wanted the custody of the children and she did not want to give their custody. That besides this, no other incident had taken place and she has denied that the accused no. 1 wanted the custody Page 24 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined of the children as they had accepted Islam religion. Moreover, it is admitted that the marriage of Jiya had taken place with the complainant after her divorce from the accused no. 1 and she has not filed any complaint against the accused no. 1, hence, the motive has not been proved by the prosecution beyond reasonable doubts. 9.1 From the evidence we find that in the complaint produced at Exh. 10, the complainant has merely stated that while he and his wife were attending to their accounting work in the shop, the accused came from behind, and along with the accused no. 1, there was a thin person and besides this, there is no other description of the clothes that were worn, the looks of the person, the approximate age of the person, the colour of the person, etc. and there is no evidence on record as to how the involvement of the accused no. 2 has come on record. The prosecution has examined both the panch witnesses of the Test Identification Parade and both the witnesses have not supported the case of the prosecution and the Test Identification Parade panchnama has not been proved Page 25 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined beyond reasonable doubts. The prosecution has not examined the Executive Magistrate who has conducted the Test Identification Parade and the prosecution has not proved that the Test Identification Parade was conducted in the proper manner following the settled procedure to be adopted while conducting the Test Identification Parade. 9.2 As per the case of the prosecution, immediately after the incident on 07.09.2005 at 02.00 am, the complainant - Salimkhan Haroonkhan Pathan and his wife Jiya Salimkhan Pathan were taken to the Haji AM Lokhat and Dr. A.M. Mulla Sarvajanik Hospital, Rampura, Baratwadi, Surat and they reached the hospital by 02.10 am. As per the case of the prosecution, the accused no. 1 was the ex- husband of injured Jiya Salimkhan Pathan and he was known to both the complainant and the injured but in the medical certificate produced that Exh. 17 and Exh. 18 of the complainant and injured Jiya respectively, they have not mentioned the name of the accused no. 1 and in the history before the Medical Officer, they have stated that while they were counting money in shop no. 1 Rampura, at that time, Page 26 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined one person came and attacked them with a sharp instrument and have not mentioned that the accused no. 2 also assaulted them. That if the complainant and injured knew the accused no. 1 very well from the past, they would have named him and an unknown person before the Medical Officer and it is not the case of the prosecution that the accused had their faces covered and their identity could not be made out at the time of the assault. 9.3 In the evidence of the prosecution, as per the panchnama produced at Exh. 25, both accused were arrested and the accused no. 2 produced the iron knife which was seized by the Investigating Officer. As far as the weapon used by the accused no. 1 is concerned, the weapon was seized by the panchnama produced at Exh. 27, wherein, Mohammed Aslam Haroonkhan Pathan had produced the clothes worn by the complainant and injured Jiya at the time of the incident and they were seized by the Investigating Officer and the witness also produced a black torn rexine cover which was 15½ inches long and 3 inches broad and inside the cover was an iron knife with an Page 27 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined aluminium handle which had blood stains on it, which was 2 inched broad at the back and 1½ inched broad in the front and was 4½ inches in length. The knife was rusted and dried blood stains were on the knife and as per the case of the prosecution, this weapon was the knife which was used by the accused no. 1 at the time of the incident. In the entire evidence of the complainant and the injured witness, who were present at the place of the incident, there is no evidence that the accused no. 1 left the knife along with the cover and fled from the scene and there is no explanation as to how the knife which was alleged to have been used by the accused no. 1 came into the custody of Mohammed Aslam Haroonkhan Pathan. The prosecution has not examined Mohammed Haroon Aslamkhan Pathan and hence, it has not come on record as to how the weapon came to his custody. Moreover, in the panchnama of the place of offence at Exh. 23, the knife is not found but blood stains were found outside the shop which was rubbed with cotton thread and the sample was taken and a mobile phone was Page 28 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined seized by the Investigating Officer at the time of the panchnama.
10. In light of the above discussions, the infirmities in the case of the prosecution have come on record and as discussed above, we find that the prosecution has not proved the case beyond reasonable doubts and the learned Trial Court has not considered the evidence in proper perspective and has not considered that even though the complainant and his wife injured Jiya knew the accused no. 1, they have not named him as the assailant before the Medical Officer. The description of the accused no. 2 is not given in the complaint or before the Medical Officer and it is merely stated that there was a thin person and there is no evidence as to how the involvement of the accused no. 2 has come on record. The learned Trial Court has not considered that the weapon that is alleged to have been used by the accused no. 1 is recovered from one Mohammad Aslam Haroonkhan Pathan who has not been examined before the learned Trial Court and there is no explanation as to how the weapon came to the possession of Mohammad Aslam Page 29 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025 NEUTRAL CITATION R/CR.A/3025/2008 JUDGMENT DATED: 31/01/2025 undefined Haroonkhan Pathan. We find that the learned Trial Court has not considered that the prosecution has not proved the case beyond reasonable doubts and consequently, Criminal Appeal No. 3025 of 2008 succeeds and is allowed.
11. The impugned judgement and order of conviction dated 28.11.2008 passed by the learned 5 th Additional Sessions Judge, Surat in Sessions Case No. 16 of 2006 is hereby quashed and set aside. The appellants are ordered to be released forthwith if not required in any other case.
12. In view of the above Criminal Appeal No. 132 of 2009 is hereby rejected.
13. Fine to be refunded after due verification. Record and Proceedings be sent back to the Trial Court forthwith.
14. Registry is directed to maintain the copy of this judgement in Criminal Appeal No. 132 of 2009.
Sd-
(ILESH J. VORA,J) Sd-
(S. V. PINTO,J) VASIM S. SAIYED Page 30 of 30 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jan 31 2025 Downloaded on : Mon Feb 03 22:08:47 IST 2025