Saiyed Mushtakali @ Imranali ... vs State Of Gujarat
2022 Latest Caselaw 1322 Guj

     R/CR.A/1784/2021                                    ORDER DATED: 07/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1784 of 2021

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               SAIYED MUSHTAKALI @ IMRANALI ANWARMIYA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR IMRAN H PATHAN(3478) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2,3
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/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 by and dissatisfied with the judgment and order of acquittal dated 31.8.2019 passed by the learned Sessions Judge, Mehsana in Sessions Case No.93 of 2017, whereby the respondents accused came to be acquitted for the offences punishable u/s 394, 397, 427, 324, 325 of the IPC and u/s 135 of the G.P. Act, the appellant - original complainant has preferred present criminal appeal u/s 372 of the Code of Criminal Procedure, 1973 (for short "the Code").

2. Briefly stated, it is the case of the prosecution that there was some partnership dispute between prosecution witness No.8 Saiyed Salimmiya, who happens to be brother of the complainant and accused No.1 Saiyed Fakir Mohammad and as accused No.1 failed to pay the outstanding of complainant's brother, relation between them were not cordial. On 4.8.2016 at

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about 20:30 hrs., the complainant requested his brother i.e. prosecution witness No.8 to arrange a sum of Rs.40,000/- and after making arrangement of Rs.43,000/-, the complainant left in his car bearing registration No.GJ 2R 7900 and when he was on road leading from Mathasur to Alampur when he took turn, suddenly, one stone dashed on the glass of the car of the complainant and thus, he lost control over the steering. Immediately, both the accused opened the door of the car, snatched the complainant from the car and abused him and also gave kick and fist blows. Both the accused robbed money of Rs.43,000/- from the complainant's pocket and accused No.1 gave knife blow on his right shoulder. Thereafter, the complainant lodged the complaint with regard to the incident before Nandasan Police Station on 5.8.2016, which was registered as I - C.R. No.58 of 2016 for the aforesaid offences.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant documentary evidence for the purpose of proving the offence. After having found material against the respondents accused, charge-sheet came to be filed in the Court of learned JMFC, Kadi. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, mehsasna as provided under section 209 of the Code.

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

5. In order to bring home charge, the prosecution has examined 12 witnesses and also produced various documentary

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evidence before the learned trial Court, more particularly described in para 7 of the impugned judgment and order.

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

7. We have heard learned advocate Mr. Imran Pathan for the appellant - complainant and learned APP Ms. Shah appearing for the respondent State and have minutely examined the evidence read over to us by learned advocate for the appellant - complainant during the course of hearing.

8. We have further examined the findings of the learned trial judge and after scrutiny of evidence at his end, in para 19, 22, 24 of the impugned judgment (translated into English), the learned trial judge has recorded following findings:-

"(19) Thus, if the whole of the evidence produced by the prosecution is perused, the fact clearly emerges on record that, the prosecution in the present case could not prove beyond doubt the guilt of the accused. If the evidence of prosecution is taken into consideration, as per the prosecution's case as well as the events of the incident, the only eye-witness of the incident is the complainant himself, Mustakmiya who was caused injuries during the incident. As stated by him, on the day of

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incident, as his elder brother Salim Miya was in need of money, he took some money from home and withdrew some from his bank account through the A.T.M. at Chhatral. Thus, he was having total cash of Rs.43,000/-. He left in his Maruti Esteem car for his native place Alampur for giving the cash money to his brother. While he was driving his car, having registration number GJ-02-7900, on the way towards Mathasur from Alampur, at a distance of about half a kilometer, on the right side of the narrow passage, a stone collided on the main windshield of his car. Consequent to breaking of the windshield, he lost control of his car and his car fall into a dug square.

Thereafter, the accused persons opened the door of the car and began to beat him. The accused no.1 looted the cash from him. As stated by the witness, for saving himself from being further beaten by the accused persons, he ran away and reached the house of witness Vashrambhai Rabari, where he became unconscious after giving Vashrambhai his brother's mobile number and later, when he became conscious, he was at the Civil Hospital, Mahesana. Such are the facts of the complaint given by him and the same have been stated by him in his deposition before the court. With regard to the facts of the prosecution's case, if the evidence produced by the prosecution is taken into consideration, it was stated that, when the complainant's brother took him to Nandasan C.H.C. for treatment for the first time, as per the evidence of the Medical Officer, Dr. Romin Rameshchandra Patel, the complainant was conscious and he himself dictated the case history to the medical officer, wherein he has dictated that, while he was driving the car, an unknown person threw a stone on his car on Mathapsur - Alampur Road, at about half past eleven in the night on 04/08 and thereafter, unknown persons had beaten him. Such case history has been dictated by him. As per the evidence of this Medical Officer, when the complainant was brought to him, the complainant was conscious and he dictated the case history to him. Whereas, as per the evidence of the complainant who is the injured person in the case, it has been stated in his deposition that, he does not know exactly as to which hospital he was taken first and he could become conscious only after about two to two and a half hour and he does not know as to whether his brother Salim was with him or not at the hospital at Nandasan. He has further stated that he does not know as to who had dictated the case history before the doctor at Nandasan. The witness, who is the complainant as well as the injured, states regarding the case-history that he was unconscious. Whereas, as per the evidence of the Medical Officer, the witness himself had dictated the case-history. These facts appear to be contradicting. Further, if for a sake of believing only, the evidence of the Medical Officer is admitted, the witness has stated in the case-history that the persons who

R/CR.A/1784/2021 ORDER DATED: 07/02/2022

caused injuries were unknown to him. Whereas, as per the evidence of the prosecution, the fact has emerged on record that the accused persons and the complainant are acquainted with each other from beginning. The prosecution is absolutely silent as to why the complainant has not stated the names of the accused though he was conscious.

(22) Upon perusing the evidence produced by the prosecution, the complainant and his brother have accepted in their cross- examination under oath that, they had grudge with accused No.1 regarding the lending/borrowing of money. Further, it has been brought on record by the defense that, there was dispute between brother of the complainant and accused No.1 in regard with a settlement of accounts. The fact that there is old acquaintance between the complainant and the accused persons has also been accepted by the complainant. Despite that, immediately after the incident, when the complainant was being taken to the hospital, he has stated in the history before the Doctor that, he was beaten by the opponent, i.e, though the complainant was fully aware of the name and identity of the accused, then why he did not declare the names of the accused persons in the history before the doctor, the prosecution is completely silent about this fact.

(24) Upon perusing the evidences submitted by prosecution in this case, it is mentioned in the evidence submitted by the Medical Officer that the injury sustained by the complainant was very normal and a person would not get unconscious in such injury. Even if we believe that, then it is not corroborated by the evidence of Medical Officer because as per the Medical evidence, the complainant was conscious when he was brought to the Medical Officer and he has stated the history himself. In the history recorded before the Medical Officer, he has stated that the aforesaid act was committed by unknown person instead of stating their names, even though he was already acquainted with the accused persons. Moreover, he has not stated any detail regarding the loot. Thus, the case of prosecution is not corroborated by the Medical evidence. The case presented by the prosecution is fabricated such that, in connection to the aforesaid incident, the complainant went unconscious but when he was brought to the Doctor in 108 ambulance, the complainant himself stated the details of the incident in the history recorded before the Doctor. Thus, the prosecution is totally silent regarding how, when and where the complainant went unconscious and how he regained consciousness."

      R/CR.A/1784/2021                                            ORDER DATED: 07/02/2022




       Learned          advocate       Mr.    Pathan       for      the     appellant          -

complainant submitted that in order to commit robbery of cash amount, the respondents accused intercepted car of the complainant by pelting stones on the glass of the car and on account of which, the complainant lost control over the steering of the car. The complainant accounted the details as to which occurrence of the incident and role played by each accused. According to him, the learned trial judge though believed the occurrence of the incident and the injuries received by the complainant, but acquitted the accused persons on account of discrepancy and inconsistency in the evidence of the complainant - injured witness and medical history. According to him, the respondents accused were armed with deadly weapon, assaulted the complainant - appellant herein and thus, there was an intention either to kill him or to commit decoity. Learned advocate Mr. Pathan would further submit that the assault was made upon the appellant - complainant in respect of the demand made by the appellant and his brother about due amount and therefore, the prosecution case stands duly proved, more particularly, on the basis of appellant's evidence.

9. We have carefully examined the findings recorded by the learned trial judge and reassessed the evidence, more particularly in view of the appellant's deposition. The only eye witness of the incident is the appellant - complainant himself, who received injuries during the incident dated 4.8.2016 occurred at 20:30 hrs. According to the appellant - complainant, he left in his car for his native place Alampur for giving cash money to his brother i.e. PW 8. It appears that the accused persons and the appellant complainant are acquainted

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with each other since long and they have business transactions and also civil disputes were pending between the parties. Though, it is the case of the appellant - complainant that after the incident, he became unconscious, but the Medical Officer, who treated him at the first instance, deposed before the Court that when the appellant - complainant was brought before him at CHC, Nandasan, he was conscious and he himself gave history, wherein he disclosed that unknown persons threw stones on his car on Mathasur Alampur road and further unknown persons had beaten him. Though the complainant appellant herein gave such history to the Medical Officer at first point of time and that too in conscious state of mind, there was no reason on the part of the appellant complainant to state before the Court that after the incident, he became unconscious. Since the complainant and the accused side are acquainted and knowing with each other, there was no reason on the part of the complainant not to disclose the name of the assailants and more particularly, the respondents accused, who are known to him. It has also come on record and learned trial judge has also recorded in his findings that there was dispute between the appellant complainant's brother and accused No.1 with regard to the settlement of account and on account of previous enmity/grudge with regard to lending and borrowing of money, possibility of falsely framing the respondents accused cannot be ruled out and therefore, the prosecution case was not corroborated by the medical evidence. In view of such false evidence deposed by the appellant complainant before the Court on oath vis-a-vis the medical history provided by him immediately after the incident, the learned trial judge rightly took the view as to falsely framing of the respondents accused in the present offence on account of previous enmity/ grudge

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between the parties. Under the circumstances, the learned trial Judge has rightly acquitted the respondents 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.

10. 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.

11. 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

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order of acquittal."

12. 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.

13. 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 372 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

14. In view of the above and for the reasons stated above, present criminal appeal fails and same deserves to be dismissed and is according dismissed.

(S.H.VORA, J)

(SANDEEP N. BHATT,J) SHEKHAR P. BARVE