Gujarat High Court
Naranbhai @ Naniyo Khimjibhai Vadher vs State Of Gujarat on 31 January, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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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
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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
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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.
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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
4 4 Haroonkhan Yusufkhan Pathan
Shaikh
Shaikh
Pathan
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2.4 The prosecution produced the following documents in
support of their case :
Sr. Description of Document Exh.
No.
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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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,
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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
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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
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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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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
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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
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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
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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
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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,
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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
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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
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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
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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
