State Of Gujarat vs Memon Iqubal Usmand And Ors
2023 Latest Caselaw 1639 Guj

     R/CR.A/747/1997                              JUDGMENT DATED: 17/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 747 of 1997

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ?

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                          STATE OF GUJARAT
                                Versus
                MEMON IQUBAL USMAND AND ORS & 3 other(s)
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Appearance:
MS JIRGA JHAVERI APP for the Appellant(s) No. 1
ABATED for the Respondent(s) No. 2
HCLS COMMITTEE(4998) for the Respondent(s) No. 1,3,4
MR. YOGENDRA THAKORE(3975) for the Respondent(s) No. 1,3,4
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                        Date : 17/02/2023
                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 22.05.1997 passed by the learned

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Additional Session Judge, Bhavnagar in Sessions Case No.149 of 1996 whereby the accused - respondents herein came to be acquitted from the charge of the offences punishable under Sections 498(A), 302, 114 etc. of the Indian Penal Code (for short "the IPC"), the appellant - State of Gujarat has preferred present criminal appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short "the Code").

2. Briefly stated, the complainant was washing the clothes at about 7.00 p.m. and her husband had gone for business purpose and brother of her husband namely Ikbal started to proceed with tin and thereupon she asked about the tin and he stated that there was a colour tin and, thereafter, she stated that this was petrol tin and Ikbal stated that he wanted to mix boiled water in the colour. Thereafter, the complainant boiled the water and also made a tea and she herself set behind the stove filtering the tea for Ikbal and suddenly Ikbal poured the chemical in the utensil and, therefore, she sustained burn injury and, thereafter, Ikbal ran away. The complainant came out in burn condition at that time Khushalbhai Sodawala poured the water on her and she fall down there and neighbours gathered there. Thereafter, the complainant took the hospital where she lodged the complaint before the concerned police officer.

During the pendency of the present appeal, respondent no.2 expired on 03.09.1997 and, therefore, the appeal qua respondent no.2 stands abated.

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3. Pursuant to the FIR lodged by the complainant, investigating agency carried out the investigation and recorded statements of the prosecution witnesses, drawn various panchanamas and collected relevant expert evidence for the purpose of proving the offence. After having found sufficient material against the respondents herein, charge-sheet came to be filed before the concerned Magistrate Court. Since the case was exclusively triable by Sessions Court, concerned Magistrate Court committed the case to the Sessions Court as provided under section 209 of the Code.

4. Upon committal of the case to the Sessions Court learned Sessions Judge framed charge at Exhibit 3 on 25.07.1996 against the accused - respondents herein for the aforesaid offence. The accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 21 prosecution witnesses and also produced documentary evidence before the learned Additional Sessions Judge, which is as under :-

Oral evidence:

Sr.No Name of witnesses                                                            Exhibit








   R/CR.A/747/1997                           JUDGMENT DATED: 17/02/2023
























Documentary Evidence:

Sr.No Documents                                                Exhibit













      R/CR.A/747/1997                                     JUDGMENT DATED: 17/02/2023

6. On conclusion of evidence on the part of the prosecution, the trial Court recorded further statements of respondents as provided under Section 313 of the Code, wherein, the respondents herein denied their involvement in the offence and stated that false case has been filed against them. After hearing both the sides and after appreciating evidence adduced by the prosecution, the learned Additional Judge acquitted the respondents herein from the charge of offence under Sections 498(A), 302, 114 etc. of the IPC.

7. We have heard Ms.Jirga Jhaveri, learned Additional Public Prosecutor for the appellant - State of Gujarat and Mr.Yogendra Thakor, learned advocate for respondents and minutely examined the oral as well as documentary evidence adduced before the Trial Court discussed at great length in the impugned judgment itself.

8. Learned Additional Public Prosecutor for the appellant - State of Gujarat has submitted that the prosecution has proved the homicidal death of the deceased by examining the doctor as well by documentary evidence in the nature of postmortem note beyond reasonable doubt. Learned Additional Public Prosecutor has submitted that the presence of accused no.1, who is brother- in-law of the deceased, is established at the time of incident beyond reasonable doubt as he also sustained burn injury on his body and the case of the prosecution is that he has sprinkle

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petrol on the deceased and thereby the deceased sustained burn injury. Learned Additional Public Prosecutor has committed an error while discarding and disbelieving the evidence of the prosecution witnesses while passing the impugned judgment and order of acquittal. Learned Additional Public Prosecutor has further submitted that the accused have committed serious offence with regard to the ill-treatment and torture to the deceased and, therefore, they are liable to punish under Section 498(A) of the IPC. Learned Additional Public Prosecutor has urged to hold the accused guilty and convict them for the alleged offence. Learned Additional Public Prosecutor has prayed to allow the present appeal and quash and set aside the impugned judgment and order of acquittal passed by the Trial Court.

9. Per contra, learned advocate appearing for the respondents

- accused has opposed the present appeal and submitted that the prosecution has failed to establish the motive and involvement of the accused and has not proved the allegations made against the accused beyond reasonable doubt and thus, the Trial Court has rightly passed the impugned order of acquittal after appreciating the oral as well as documentary evidence and the arguments advanced by the concerned parties. Learned advocate for the respondents has further submitted that the interested witnesses have deposed against the accused, however, the independent witnesses have not supported the case of the prosecution and, therefore, the Trial Court has rightly disbelieved the case beyond reasonable doubt. Learned

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advocate for the respondents has submitted that the appeal being meritless deserves to be dismissed.

10. We have carefully gone through the evidence led by the prosecution in detailed. Though the prosecution has proved the death of the deceased is a homicidal death examining P.W.13 - Doctor Nathabhai Premjibhai Kuhadiya at Exhibit 30 and P.W.14 - Doctor Ganibhai Kasambhai Saiyed at Exhibit 34 and through the postmortem note, but the respondents have not challenged the homicidal death of the deceased. So far as the involvement of the accused in the alleged crime is concerned, the allegations made against the respondents are not proved by the prosecution by producing cogent and valid evidence on record. The prosecution has examined the mother of the deceased, who has initially tried to involve the accused for the offence punishable under Sections 498(A) and 302 of the IPC. But in her cross- examination, while she was confronting with the police statement, she has admitted before the Trial Court that she has not stated anything at the time of recording of the statement under Section 161 of the Code and she was telling for the first time before the Court and considering the fact that the prosecution has tried to involve the accused on the basis of the evidence of the witnesses. The said version is not trustworthy and reliable and, therefore, the Trial Court has not committed any error while passing the impugned judgment and order of acquittal. We have examined the evidence of the doctor i.e. P.W.14 who has categorically stated that the deceased sustained

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more than nine burnt injuries on first to second degree and skin deep and for the palm finger and thumb were burnt and due to the burn injury, the deceased was not in a position to put even her finger, however, P.W.15 being Executive Magistrate has recorded dying declaration and P.W.17 has registered the FIR and both witnesses have taken the thumb impression on the dying declaration as well as on the complaint, which creates serious doubt as when the doctor has categorically stated before the Court below on oath that the skin of the palm, finger and thumb have completely burnt and, therefore, it is impossible to put the thumb impression on the FIR and/or dying declaration. It reveals that in what circumstances and how, the Executive Magistrate has taken the thumb impression on the dying declaration and the Police Constable has also taken the thumb impression on the FIR, which fact is completely destroyed the case of the prosecution and, therefore, the case of the prosecution creates serious doubt and therefore, it cannot be said that the prosecution has proved the case against the accused beyond reasonable doubt. Hence, the impugned judgment and order passed by the Trial Court is in consonance with the facts and law and there is no infirmity found in the impugned judgment and order of acquittal.

11. The prosecution is unable to explain the fact that the incident took place in the kitchen then how the furniture of the bedroom got burn and stress of the burn is also found from the bedroom. Even there is no case of the prosecution that the

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deceased ran inside the bedroom, on the contrary, after getting burn injury, the deceased rushed to the outside of the house where she tried to rescue by the neighbour by pouring water and/or by spreading clothes on the deceased since she was in burn condition. It appears from the record that the important witness i.e. husband who immediately took the deceased to the hospital was not examined by the prosecution nor any independent witness was examined. Considering all these aspects, the case of the prosecution does not inspire any confidence. On our re-assessment and re-appreciation of entire evidence, we do not find that there is any infirmity or irregularity in the findings of fact recorded by the Trial Court. Under the circumstances, the Trial Court has rightly acquitted the private opponents for the elaborate reasons stated in the impugned judgment and order and we also endorse the view/finding of the Trial Court 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,

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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 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

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trial Court, it might have taken a different view.

13. The relevant paragraph of the decision of the Hon'ble Supreme Court in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, reads as under:-

"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 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

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of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

14. It would be worthwhile to refer to the decision of the

Hon'ble Supreme Court in the case of Sharad Birdhichand

Sarda Vs. State of Maharashtra reported in (1984) 4 SCC

116 wherein the Hon'ble Supreme Court has held and observed

in paragraphs No.150, 151 and 153 as under:-

"150. The High Court has referred to some decisions of this Court and tried to apply the ratio of those cases to the present case which, as we shall show, are clearly distinguishable. The High Court was greatly impressed by the view taken by some Courts, including this Court, that a false defence or a false plea taken by an accused would be an additional link in the various chain of circumstantial evidence and seems to suggest that since the appellant had taken a false plea that would be conclusive, taken along with other circumstances, to prove the case. We might, however, mention at the outset that this is not what this Court has said. We shall elaborate this aspect of the matter a little later.

151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against

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an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade V/s. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri.) p. 1047]

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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.

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16. 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. The impugned judgment and order dated 22.05.1997 passed by the learned Additional Session Judge, Bhavnagar in Sessions Case No.149 of 1996 is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record and proceedings be transmitted back to the concerned Trial Court forthwith.

(VIPUL M. PANCHOLI, J)

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL