State Of Gujarat vs Jakir @ Ayubbhai Umarbhai Makrani
2022 Latest Caselaw 8073 Guj

    R/CR.A/271/1999                                 CAV JUDGMENT DATED: 16/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 271 of 1999


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== STATE OF GUJARAT Versus JAKIR @ AYUBBHAI UMARBHAI MAKRANI ========================================================== Appearance:

MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR. SOEB R. BHOHARIA(2205) for the Opponent(s)/Respondent(s) No. 1 VALIMOHAMMED PATHAN(6383) for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE S.H.VORA and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 16/09/2022

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)

R/CR.A/271/1999 CAV JUDGMENT DATED: 16/09/2022

1. Present Criminal Appeal has been preferred by the appellant

- State of Gujarat under Section 378 of the Criminal Procedure

Code, 1973 against the judgment and order dated 05/07/1994

passed by the learned Additional Sessions Judge, Banaskantha

at Palanpur in Sessions Case No.7 of 1998 acquitting the

respondent - original accused from the charges leveled against

him for the offence punishable under sections 302 of Indian

Penal Code and Section 135 of the Bombay Police Act.

2. Facts of the case, in brief, are as under:-

The deceased Akbar Hussain Rangrej was engaged in the

business of T. V. Repair and Cable dish connection. As per the

FIR dated 25.04.1997 filed by Mehboobkhan Padiyar, brother -

in - law of the deceased, one Jakir @ Ayub Umar Makrani

came to the shop of the decesed at about 1 o'clock and asked

the deceased to go with him to his house to repair his T.V.

The deceased and the accused started to leave and at that time

the complainant also decided to join the deceased. On the way

complainant stopped for a moment to talk to his sister - in -

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law and quitcly follwed the deceased and the accused. He

witnessed the accused giving stab wounds to the deceased from

a little distance and hence upon seeing such incident, rushed

to his rescue. Thereupon, the accused ran and the deceased

collapsed on the ground, people immediately gathered.

Thereafter, the complainant carried the body of the deceased

and on way met Saffrunissa and both of them took the

deceased to Civil Hospital. In the Civil Hospital, the deceased

has given history to the doctor regarding stab wounds by Ayub

Umar Makrani. Thereafter, immediately the FIR was registered.

The accused is said to have presented himself to the police

station and produced the knife used in commission of offence.

3. On the basis of the said complaint, investigation was started

and after thorough investigation, as there was sufficient

evidence against the respondent - accused, Chargesheet was

filed before the trial Court and the case was comitted to the

Court of Sessions, which has been numbered as Sessions Case

No.7 of 1998. Thereafter, Charge was framed against the

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accused for the offence punishable under sections 302 of Indian

Penal Code and Section 135 of the Bombay Police Act. The

accused pleaded not guilty to the Charges and claimed to be

tried. The prosecution, therefore, laid evidence, oral as well as

documentary. At the conclusion of the trial, the learned

Sessions Judge was pleased to acquit the accused from the

charges levelled against him. Hence, the appellant has

preferred the present Criminal Appeal challenging the

judgement and order of acquittal.

4. Heard Ms.C.M. Shah, learned APP for the appellant - State.

Learned advocate Mr. S. R. Boharia appearing for the

respondent - original accused is not present, though matter

was callled out. As the appeal is of the year 1999, the same is

heard on merits and considering the record and proceedings, it

is decided forthwith.

5. Ms.C.M. Shah, learned APP for the appellant State has

vehemently argued that the judgment of the Sessions Court is

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quite erroneous on the facts as well as on law. The learned

Sessions Judge has committed a grave error in not believing

the deposition of the witnesses examined by the prosecution

and evidence adduced by the prosecution. It is further

submitted that the Sessions Judge has erred in acquitting the

respondent - accused from the charges levelled against him. It

is further argued that the FIR was lodged within one hour of

the incident and the names of the witnesses were disclosed and

the Court has held that the complainant has not clearly

identified the accused. The Court has also not believed that the

motive was clearly established. It is also submitted that the

trial Court has not believed the discovery Panchnama and

erred in holding that conduct of the accused in arriving at

police station after committing crime is not natural. It is

further submitted that the trial Court has also not believed the

evidence of the Medical Officer, which is in support of the

witnesses. The trial Court has erred in giving findings that the

complainant is not an eyewitness. It is further argued that the

Sessions Judge has erred in not believing the evidence of the

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investigating officer and complainant who had no reason to

implicate the respondent falsely in the case. It is also

submitted that the trial Court has not believed the arguments

advanced by the prosectuion and drawn inference in favour of

the accused. It is further argued that the Sessions Court has

erroneously held that the prosecution has failed to prove the

case beyond reasonable doubt and has requested to allow the

present appeal.

6. As stated above, learned advocate Mr. Bohariya for the

respondent, though called out not present. The Court is resting

upon the record and proceedings of the trial Court and

judgment and order of the trial Court.

7. Heard leaned APP at length and perused the impugned

judgement and order of acquittal passed by the trial court as

well as the entire record and proceedings.

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8. It would be worthwhile to refer to the scope in Acquittal

Appeals. It is well settled by is catena of decisions that an

appellate Court has full Power to review, reappreciate and

consider the Evidence upon which the Order of Acquittal is

founded. However, the Appellate Court must bear in mind that

in case of Acquittal, there is prejudice in favour of the

Accused, firstly, the presumption of innocence is available to

him under the Fundamental Principle of Criminal Jurisprudence

that every person shall be presumed to be innocent unless he

is proved guilty by a competent Court of Law. Secondly, the

Accused having secured his Acquittal, the presumption of his

innocence is further reaffirmed and strengthened by the trial

Court.

9. We have gone through the entire record and proceedings.

We have re-appreciated the evidence on record. On re-

appreciation of the evidence, it appears that the complainant

has lodged the complaint for the murder of his deceased

brother - in - law. The alleged incident has happened at

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about 13:15 hrs on 25.04.1997 and the FIR was lodged at

14:25 hrs on the same day. Therefore, it cannot be said that

there is delay in lodging the FIR. The complainant has stated

in the FIR that he is an eyewitness to the incident, which had

occured in broad day light in crowded area as per the case of

the prosecution. As per the complaint lodged by the

complainant, deceased has told him that accused had given a

T.V. for repairing and picture tube of such T.V. has gone away

and whenever he go to Ahmedabad, he may get the picture

tube. This was the talk by the deceased brother in law at 1

o'clock and accused came to shop and took deceased with

him. So he followed both of them and accused has given knife

blow to the deceased on chest and abdomen. He has further

stated in the complaint that he rushed to rescue the deceased

and took him to the Civil Hospital, Palanpur, where he

succumbed to his injuries. As per the complainant motive

behind the incident is that picture tube of the T.V. of the

accused has been blown away and deceased had told him to

get new picture tube. This is the only talk between both of

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them. However, no iota of evidence is brought on record

regarding any dispute or quarral or some altercation between

accused and the deceased and as a result of which accused

took deceased with him. So there is no evidence regarding any

enimity between accused and the deceased, because of which

accused took such step. Thus, prosecution has failed to prove

the motive for commission of crime by the accused.

10. It is the cardinal principle of law that the prosecution has

to establish the charge beyond reasonable doubt and the onus

lies affirmatively on the prosecution to prove the case beyond

reasonable doubt and it cannot derive any benefit from the

weakness of the defence version. Only the accused if then

explain the increminating circumstances against him i.e.

statement under Section 313 of the Code of Criminal Procedure

but if accused remain silent in his statement under Section 313

of the Code that does not culminate the prosecution case into

a success.

R/CR.A/271/1999 CAV JUDGMENT DATED: 16/09/2022

11. While reappreciating the case, evidence of the main

witness PW No.2 Mehboobkhan, who has lodged an FIR is to

be seen. He has reitterated the facts as per the complaint

lodged by him, but it has come on record in his examination

in chief that accused was coming and going to the shop of the

deceased but he is not knowing him. This statement shows

that accused was not known to him. This is also admitted in

the cross examination that before the incident he was only

knowing the accused as he was coming to see the deceased

many a times. Considering the deposition of this so called eye

witness, there are contradictions in his evidence which is not

mentioned in the complaint anywhere. It is on record that

there is curve near Ambar Kuva street and the accused and the

deceased had entered the street after the curv and he was

standing at the distance of 40 feet from the curve. It is also

stated that when he was following both of them for which no

reason is coming out, since there is no allegation regarding

quarrel at the shop of deceased, as complainant was following

the deceased and the accused, he met his sister in law

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Saffrunissa and that from the place where he was talking with

Safrunissa, the place of incident cannot be seen. So from the

evidence of the witness, it clearly comes on record and rightly

believed by the trial Court that the evidence of this witness

cannot be said to be an evidence of eye witness.

11.1 Considering the cross - examination of witness

Mehboobkhan, there are many contradictions. It is also

pertinent to note that as per the evidence of prosecution

witness Mehboobkhan, he immediately went to the place of

incident and lifted the deceased and he himself and Saffrunissa

took the deceased to the Civil Hospital. Considering this

aspect, while lifting the deceased on his shoulders, clothes of

complainant must be stained with blood of the deceased, but

no such clothes were recovered by the Investigating Officer.

Even as per the say of the complainant, he and his sister in

law both were there in the rickshaw with the deceased.

Therefore, clothes of Sarfunissa must be stained with blood of

the deceased. However, her clothes were also not recovered by

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the Investigating Officer. Moreover, when complainant has

stated that he was not knowing the name of the accused, TI

parade should have been arranged by the Investigating Officer,

but the same is not arranged in this case. As such, the

evidence of the complainant, as rightly held by the trial Court

is not trustworthy, cogent and convencing evidence.

12. As regards the second main witness Saffrunisha PW No.4,

who is sister in law of the complainant and the deceased at

Exh.22, it has come on record that she is having a grocery

shop near the house. When complainant was following the

accused and the deceased, Saffrunisha has told him to take

lunch and then go. At that time she was standing near the

shop. When she has heard that deceased has been injured by

the accused, she rushed to the place of incident and saw that

complainant was coming lifting the deceased at the distance of

about 50 feet from her house. From there, she joined the

complainant and took the deceased to the hospital. As per her

say in examination in chief, she has stated that on asking by

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the doctor, deceased has told that Jakir Umar has assaulted

him

12.1 In her cross - examination, many contradictions have

come on record. She has admitted in cross examination that

some boys on the street were shouting that Jakir has assaulted

Akbar. As she went near the place of incident, deceased was

laying there and crowd of 10-15 people surrounded him. As

such evidence of Saffrunissa clearly shows that she is not an

eye witness, but she is only a hearsay witness and it is rightly

observed by the trial Court that such contradictory evidence

cannot be believed.

13. As per the evidence of PW No.1 Medical Officer

Dr.Rasbihari Amrutlal Bapna at Exh.9, deceased was brought to

the hospital by his neighbours and as per the say of the

complainant and Saffrunissa, they have taken the deceased to

the hospital. It is main contradiction as regards taking

deceased to the hospital. As per the say of both Mehboobkhan

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and Saffrunissa, there was a crowd of 15 people when the

deceased was brought. One more aspect which comes on

record is that the deceased has clearly stated on asking by the

Medical Officer that Ayub Umar has assaulted him with knife,

whereas as per the statement in her examination in cheif

Saffrunissa has stated that deceased has told the Doctor that

Jakir Umar has assaulted him. Nothing has come on record

that Jakir was known as Ayub in the locality. As regarding

identity of the accused - Jakir or Ayub is concerned, the

complainant has wrongly tried to prove that Ayub is allias

name of Jakir and both are the same person. The investigating

Officer would have investigated the same, this aspect from

recording statements of persons from the locality that Jakir is

also known as Ayub but Investigating Officer has not

investigated this aspect and has only relied upon the words of

complainant.

14. The evidence of PW No.9 Jorabhai Jivabhai Desai,

Investigating Officer, is recorded at Exh.46, wherein it is stated

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that father of the deceased Babukhan Lalmohmad has never

told that Ayub and Jakir are two real brothers. This also

reflects the wrongful conduct of the complainant as it has

come on record through the evidence of this witness that on

04.05.1997, statement of Babukhan Lalmohmad was recorded

and it was disclosed that Jakir and Ayub are two brothers. It

is also on record from the evidence of the Investigating Officer

that Jakir and Ayub are the same person, is not stated by any

of the witnesses, whose statements are recorded by him. As

complainant has stated that Jakir @ Ayub has assaulted the

decesead, he has arrested Jakir. It is also admitted by the

Investigating Officer that upon recording the statement of the

father of the deceased, sister in law and brother in law of the

deceased, nobody says that Jakir and Ayub is one person.

Considering the evidence of the Investigating officer, comparing

with the evidence of the complainant it is apparent on record

that the complainant is having no support as to how Jakir and

Ayub are the same person. It is also pertinent to note that this

dispute of identity of the accused is raised in the further

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statement of the accused and he has clearly mentioned in his

further statement that his name is Jakir Umarbhai and his

brother's name is Ayub Umarbhai. As such when the identity

of the accused is disputed, it is the duty of the prosecution to

prove with cogent and reliable evidence that Jakir is also

known as Ayub in the entire vicinity. As such no iota of

evidence is produced on record by the prosecution. This lapse

in investigation has been rightly appreciated by the trial Court.

15. As regards appreciation of evidence pertaining to the

Panchnama is concerned, the panch witness who is examined

by the prosecution is PW No.6 Niyajmahmad Amirmahmad

Shaikh at Exh.24, who is relative of father of the deceased.

Panchnama does not mentioned that the clothes of the accused

were taken off and were seized along with knife from the pant

of the accused. As such the trial Court has rightly given a

finding to the effect that the Panch witness has tried to

support the case of prosecution due to the relation with the

father of the deceased, which cannot be relied upon.

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16. Considering the entire evidence on record no other

witnesses have supported except Mehboobkhan and Saffrunissa,

whose evidence has been appreciated to be concocted evidence

or not trustworthy by the trial Court. Other independent

witnesses are not brought on reocrd though there is evidence

on record that many persons have been gathered at the place

of incident. There must be some eye witness, because it is a

crowded place having shops and residential premises. As such

no independent witness has been taken on record. Considering

the evidence of Investigating Officer also the identity of the

accused having an alias name has not been established and

overall evidence which is brought on record before the trial

Court, the trial Court has considered each and every aspect

and rightly appreciated the evidence before it and has given

the correct findings to that effect and so no apprent error on

the face of record is found. The judgement does not suffer any

material defect or cannot be said to be contrary to the

evidence recorded.

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17. It may be noted that as per the settled legal position,

when two views are possible, the judgment and order of

acquittal passed by the trial Court should not be interfered

with by the Appellate Court unless for the special reasons. A

beneficial reference of the decision of the Supreme Court in

the case of State of Rajasthan versus Ram Niwas reported in

(2010) 15 SCC 463 be made in this regard. In the said case, it

has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P.,

(2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour

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and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the

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scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

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28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

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"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

18. 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.

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19. Scope of appeal against acquittal is well laid down in case

of Chandrappa and ors. vs. State of Karnataka reported in

(2007) 4 SCC 415, it was observed:

"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal

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against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

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19. 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.

20. In view of the above and for the reasons stated above,

present Criminal Appeal deserve to be dismissed and is

accordingly dismissed.

(S.H.VORA, J)

(RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA