State Of Gujarat vs Shamesher S/O Jahidali ...
2022 Latest Caselaw 1321 Guj

     R/CR.MA/870/2022                           ORDER DATED: 07/02/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CRIMINAL MISC.APPLICATION NO. 870 of 2022
                   In R/CRIMINAL APPEAL NO. 79 of 2022
                                  With
                    R/CRIMINAL APPEAL NO. 79 of 2022
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                        STATE OF GUJARAT
                               Versus
              SHAMESHER S/O JAHIDALI JAMALUDDIN ANSARI
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Appearance:
MS CM SHAH APP for the Applicant(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 07/02/2022

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. Feeling aggrieved and dissatisfied with the judgment and order dated 28.9.2021 passed by the learned Sessions Judge, Court No.1, Ahmedabad City in Sessions Case No.49 of 2019 for the offences under section 302 of IPC, the applicant - State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 ("the Code" for short).

2. Briefly stated, it is the case of the prosecution that complainant was residing with his family at Ahmedabad and is running the garment shop viz., National Garment Shop and approximately 15 close acquaintances and relatives are working in the shop. It is the case of the complainant that out of some of the workers, the deceased and accused person were working in the shop and also staying at night in the same place together. It is the case of the complainant that prior to some days of the incident dated 21/01/2018, there was an

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untoward incident amongst the deceased and accused person with regard to the playing music in the shop. That on 22/01/2018, when the complainant went to shop, the shop was locked from outside and since the key was maintained / kept by other workers and after arrival of the worker, he had opened the lock of the shop and found the deceased lying on the floor and therefore, he filed the complaint against the accused person which came to be registered at CR No.I-12 of 2018 with Gomtipur Police Station for the offence punishable under Section 302 of the IPC.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence, drawn various Panchnamas and collected expert evidence from the FSL. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned Additional Chief Metropolitan Magistrate Court No.23, Ahmedabad. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Dhari as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court, Dhari, learned Sessions Judge framed charge at Exh.6 against the respondent accused for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried

5. In order to bring home charge, the prosecution has examined 14 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 4 of the impugned judgment and order.

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6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him to extort money from him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing. Learned APP took us through the depositions of PW No.6 to 10 so as to contend that there was animosity between the accused and deceased on account of playing of music and also deceased came to know about telephonic talk taking place between accused and PW No.10-Seemaben before whom the accused made extra-judicial confession. Learned APP also relied upon the Panchnama at Exh.24 and 25 drawn by the Investigating Agency at the time when accused was arrested on 25/02/2018 and the second key was recovered from his possession. Learned APP also relied upon the call details allegedly took place between PW 10 and accused vide Exh.50. In her submission, the learned trial Judge has ignored and discarded the said evidence which clearly establishes that the accused is the sole author of the injuries suffered by the deceased and therefore, the learned trial Judge ought to have

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recorded finding of conviction rather than acquittal.

8. Before re-assessing and re-analysis of the evidence duly referred to by the learned APP, we would like to reproduce the findings of the learned trial Judge, more particularly, recorded in paragraph 40 and 46 to 47 (free translation in English) which reads thus:

"(40) Discussing jointly the oral and documentary evidences produced within purview of provisions and elements of Sections - 299, 300 and 302 of I.P.C., the accused and the deceased had quarrelled two days before the incident. It appears from the evidence produced, i.e. the charge framed vide Exhibit-6 that, the animosity was due to playing a tape and having conversation with Seemaben, the witness of Exhibit-38 over a phone call. But, considering the above discussion and the whole oral evidence produced, the prosecution has not produced evidence of any eye- witness from among the witnesses of Exhibit-26, 27, 28, 36 and 46 working in National Garment Shop or any witnesses in the whole investigation of the Investigating Officer proving such animosity which resulted into the incident that took place from 22:00 hours at night on 21/01/2018 to 22/01/2018. Considering only the evidence produced, the facts of prosecution appears to be only that, both - the accused and the deceased were working together in the shop named National Garment and that, they were doing a cutting work and sleeping together on the lower floor of the shop. It appears that, after the incident, a door on the lower floor of the shop was locked and it was opened on the next day by the witness of Exhibit-

26 and that, one of the keys of the shop was being kept in the shop and the other key was being kept by the witness of Exhibit-26. Now, when the key of the shop was not found and the shop was locked from outside and both - the accused and the deceased used to sleep on the lower floor of the shop, a person standing outside naturally assumes or would have assumed that both of them may have gone away with the key and due to such reason, it was initially

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stated that they both went away with the key and when the witness of Exhibit-26 came and opened the shop, he found dead body of the deceased smeared with blood in dark and the accused was found missing and as they both used to sleep together, naturally, a suspicion was raised against the accused. It appears that, they both had a quarrel two days before the incident and the workers working in the shop had a knowledge about the quarrel and the accused caused death of the deceased due to the quarrel and therefore, the complaint of Exhibit-29 was registered. But, when the complaint of Exhibit-29 was registered on the basis of the facts and assumptions as discussed above, the first suspicion is raised and a presumption can be made against the accused only because of the fact that the deceased and the accused were last together. But, when the evidence on record does not corroborate such fact, whether the other evidence produced corroborate the fact that the accused caused death of the deceased by hitting a weight lying in the shop on his head or not? Considering the whole oral evidence along with the statements of Exhibit-30, 35 and 37 recorded as per Section- 164 of the Cr.P.C., the only facts stated in them are that, the incident took place during the period from 22:00 hours at night on 21/01/2018 to the morning on 22/01/2018 and the deceased was died. But, no evidence on record corroborates the facts as to how and due to what reason, the incident took place in any way.

                         xxx           xxx        xxx



  (46)             As during the Panchnamas of Physical Condition of the

accused, produced at Exhibit-23 and 24, one of the keys has been discovered from the accused, it is obvious that the accused in the present case had a direct quarrel with the deceased between 22:00 hours on 21/01/2018 and morning on 22/01/2018, wherein the accused hit the deceased with a weight block lying in the shop and caused his death. Thereafter, he locked the shop from outside and took the key with him. Such the incident can be said to have taken place. But, except the fact that during the panchnama of physical condition of the accused produced at Exhibit-24, the key was found

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from the accused, no other evidence has been produced by the prosecution which can prove the direct involvement of the accused that he caused the death of the deceased between 22:00 hours on 21/01/2018 and the morning on 22/01/2018.

(47) For the prosecution, the the Investigating Officer has been examined vide exhibit-48. Considering the entire Investigation Report, it does not appear that any investigation was done with regard to presence of all the workmen in the shop named M/s. National Garments and any investigation was done as to the accused and the deceased had slept together and while drawing the panchnama of place of offense, any lock and key had been recovered and the F.S.L. Officer had given instruction to recover such lock and key. Therefore, considering to the whole evidence of the Investigating Officer at Exhibit-48, it appears that, the investigating officer has neither investigated as to nor recorded any the statement of such an eye-witness who had witnessed the entire quarrel which took place between the two of them two days before the actual incident or such a witness who had meddled and resolved the dispute between them. The only evidence produced by the prosecution which can establish the direct involvement of the accused is the panchnama of the physical condition of the accused which is produced at Exhibit-24. As stated in the panchnama, an another key of the shop - M/s. National Garments has been recovered and the accused has not given any explanation in this regard. The prosecution has contended that there are two keys of the shop and the second key is kept at the shop. Under such circumstances, though the accused should have given an explanation as to why he was in possession of the second key, not any such explanation has been given by the accused. But, at the same time, with regard to the key recovered from the accused during the Panchnama of Physical Condition which is produced at Exhibit-24, the prosecution has not sent any such lock or key to F.S.L. and obtain its opinion consequent to the F.S.L. Analysis thereof."

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9. We have re-assessed and re-analyzed the evidence; both oral and documentary which are referred to and relied upon by the learned APP during the course of hearing. There are two motives attributed for the incident: (01) due to playing of music and (02) conversation of PW 10-Seemaben with accused over a telephone which deceased came to know and therefore, accused eliminated him.

10. It is noticed by us that there were 15 to 18 workers working in the National Garment Shop. However, no such statement of any witnesses are recorded by the Investigating Agency with respect to the dispute of playing of music. No doubt, both accused and deceased were working together in the shop viz., National Garment and they were sleeping together on the ground-floor of the shop. It appears that after the incident, door of the ground floor of the shop was locked and it was opened only on the next day by PW 26-

Musdikhussen Akhtarhusen Shaikh (cutting master). So it seems that incident took place between 20:00 hours on 21/01/2018 to 22:00 hours on 22/01/2018 when the shop was opened with the key produced by PW 26-Musdikhussen Akhtarhusen Shaikh. As per prosecution case, since there was two key of the shop; out of which one was in the shop and another was with PW 6 and therefore the prosecution case proceeds on the footing that accused and deceased took away the key with them and on account of aforesaid motive, accused eliminated the deceased and locked the shop from outside and took key with him. It also appears that on arrest of the accused on 25/02/2018, Panchnama is drawn at Exh.24 and 25 and the Investigating Agency called the complainant to open the lock and key was applied and it was found that it was

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the same key which is the second key kept inside the shop. Surprisingly, though the incident occurred on 22/01/2018, no any attempt was made to seize the lock though it was instructed by the FSL as per deposition of I.O. Even, there is no evidence that the lock which was carried by the complainant on 25/02/2018 was the same which can always be used to open with the key produced by PW 6-cutting master of the shop.

11. Now, coming to the deposition of PW 10-Seemaben, it appears that she has never met either accused or deceased any point of time. Not only that, as per her say, she by mistake talked with the accused over a phone and according to her deposition, accused informed her that the person who knew about their chat is done away / eliminated. In cross- examination, she has admitted that she was not knowing that the accused who is arrested is named as Shamsher; but only she came to know when Police arrested him and informed the name to her. She also admitted that she was not knowing the deceased nor she has ever talked with him and the name of the deceased was disclosed to her by Police. Surprisingly, the said witness neither knew the accused nor deceased nor she talked with them in person at any time. Though the Police produced call details at Exh.50; but no any iota of evidence as to in whose name the SIM Card is registered. Under the circumstances, the reliance placed by the learned APP on such piece of evidence and to contend that accused made extra- judicial confession before PW 10 can never be believed and therefore, rightly not accepted by the learned trial Judge and it is rightly done so. The so-called extra-judicial confession is not an evidence in the eye of law, more particularly, when there is

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no iota of evidence available on record connecting the accused with the alleged offence. Under the circumstances, the learned trial Judge has rightly acquitted the respondent accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the acquittal.

12. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

13. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

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14. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

15. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

16. In view of the above and for the reasons stated above, present application for leave to appeal fails and same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the application for leave to appeal, captioned Criminal Appeal also deserves to be dismissed and is accordingly dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) sompura