Gujarat High Court

State Of Gujarat vs Alimamad @ Aliyo Taiyab Shetha on 25 June, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                             R/CR.A/582/2002                                  JUDGMENT DATED: 25/06/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 582 of 2002


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                        and
                        HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI

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                                     Approved for Reporting                  Yes           No

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                                                      STATE OF GUJARAT
                                                            Versus
                                                ALIMAMAD @ ALIYO TAIYAB SHETHA
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                        Appearance:
                        MS.JIRGA JHAVERI, APP for the Appellant(s) No. 1
                        MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 1
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                          CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                                and
                                HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
                                DESAI

                                                         Date : 25/06/2025

                                              ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)

1. Heard Ms.Jirga Jhaveri the learned APP for the

appellant and Mr.Mrudul Barot the learned

advocate appearing for the respondent.

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2. The present appeal is directed against the

impugned order of acquittal passed by learned

Sessions Court in Sessions Case No.116 of 2001

dated 13.03.2002, wherein, the accused were

arraigned under Section 307 of the Indian Penal

Code, Sections 25(1)(AC) and 25(1)(AA) of the

Arms Act and Section 135(1) of the Bombay

Police Act.

3. Briefly stated, the case of the prosecution is that

accused Alimamad @ Aliyo Taiyab Shetha was

undergoing life imprisonment and was on parole.

After being so released, he did not surrender.

He was also wanted in an offence registered vide

C.R. No.143 of 2000. Upon information received

by the police that the accused was living with

one Roshanben @ Hasli, daughter of Noor

Mohammed Sidi Hingolja, on 19.04.2001 at

about 4:00 a.m., the police reached

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village:Devalia and surrounded the house of

Noor Mohammed Sidi Hingolja. The accused

was conversant about the arrival of police,

hence, he came out of the house and fired a shot

at the complainant - P.S.I. Shri Parmar, PW-11.

The accused also fired a shot at police constable

Dhawalsinh Kalubha - PW-12, however, both of

them escaped unhurt. The police fired a shot

from the rifle whereby, the accused was injured.

He was taken for treatment, first at the hospital

at Medical Care Center at Bhanvad and then was

shifted to G.G.Hospital, Jamnagar. Prior to the

firing by the police, the accused was warned,

however, he did not accede to such warning. On

the aforesaid facts, the complaint was filed by

PSI Parmar below Exh.38 and upon completion

of investigation, charge-sheet came to be filed.

The accused pleaded not guilty to the charge and

came to be tried. The prosecution therefore led

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evidence and on conclusion of the trial, the

learned Sessions Court passed the order of

acquittal in Sessions Case No.116 of 2001 on

13.03.2003. During the course of trial, the

prosecution had examined in all 31 witnesses.

The details of the aforesaid witnesses examined

as part of the evidence by the prosecution is

reproduced as under :-

(1) Dr. Ukabhai Dhanabhai Chandrawadiya

Exhibit-9

(2) Dr. Khalid Amin Kureshi Exhibit-14

(3) Jagdish Premji Exhibit-16

(4) Rajendrasinh Kalubha Jadeja Exhibit-18

(5) Roshanben Nurmamad Exhibit-19

(6) Nurmohammad Sidi Exhibit-20

(7) Rameshbhai Mangalbhai Exhibit-21

(8) Ishaq Nurmohammad Exhibit-24

(9) Gajubha Nathubha Sodha Exhibit-25

(10) Ashwin Chhagan Chauhan Exhibit-26

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(11) Hareshkumar Ghanshyamsinh Parmar

Exhibit-37

(12) Navalsinh Kalubha Chavda Exhibit-39

(13) Bharatkumar Madhavjibhai Mesvaniya

Exhibit-40

(14) Kaabhai Nathabhai Exhibit-41

(15) CPI Chaitanya Prasad Gajanand Rawal,

Investigating Officer Exhibit-43

(16) Arunkumar Ramaniklal Vyas,

Jailor. Exhibit-56

Furthermore, the following documentary

evidences were submitted along with the

testimony of the above-mentioned witnesses:

(1) Treatment case papers of the accused from

Bhanvad CHC. Exhibit-10

(2) Injury certificate of the accused from C.H.C.,

Bhanvad Exhibit-11

(3) Report submitted by the investigating officer for

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blood sample collection from the accused

Exhibit-12

(4) Acknowledgment letter regarding collection of

blood sample of the accused Exhibit-13

(5) Injury certificate of the accused admitted in G.G.

Hospital Exhibit-15

(6) Panchnama of the site of offence Exhibit-17

(7) Permission granted under the Arms Act for filing

charge-sheet Exhibit-16

(8) Notification regarding Prohibition from keeping

arms / weapons Exhibit-23

(9) Entry of handing over of the service revolver to

PSI Shri Parmar Exhibit-27

(10) Copy of order of the District Police Officer

regarding issuance of cartridges and service

revolver Exhibit-28

(11) Entry for issuance of Cartridge Exhibit-29

(12) Report of P.S.I. for filing of the complaint.

Exhibit-30

(13) Panchnama of pistol and knife produced by the

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complainant. Exhibit-31

(14) Panchnama for seizing the fired cartridge shells

submitted Exhibit-32

(15) Panchnama of ₹5975/- submitted by Police

Constable Pratap Singh Exhibit-33

(16) Panchnama for seizing blood-stained clothes of

the accused Exhibit-34

(17) Panchnama of the location where the accused

was arrested Exhibit-35

(18) Arrest Panchnama of the accused Exhibit-38

(19) Complaint along with FIR Exhibit-40

(20) Report for inclusion into the FIR (portion of the

complainant) Exhibit-42

(21) Entry of the offence registered in Station Diary

Exhibit-43

(22) Note sent by the investigating officer for the

purpose of analysis Exhibit-44

(23) Certificate of authority for collection

Exhibit-45

(24) Letter of the FSL Ballistic Department

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Exhibit-46

(25) Ballistics report Exhibit-47

(26) Letter written to the FSL, Junagadh

Exhibit-48

(27) Certificate of authority Exhibit-49

(28) Acknowledgment for receipt of sample

Exhibit-50

(29) Report from F.S.L., Junagadh Exhibit-51

(30) Report from F.S.L., Ahmedabad Exhibit-52

(31) FIR of the office registered against the accused.

Exhibits-53

Exhibit-54

Exhibit-55

(32) Copy of High Court order releasing the accused

on parole. Exhibit-57

(33) Entry from the Gate register Exhibit-58

(34) Copy of the High Court order Exhibit-59

(35) Wireless message stating that the accused did

not produce himself in Jail Exhibit-60

(36) Letter written by Rajkot Jail Exhibit-61

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(37) Letter written to the Jail by PSI, Bhanvad

Exhibit-62

4. On conclusion of evidence on part of the

prosecution, the trial Court recorded further

statement of the accused as provided u/s 313 of

the Code, wherein, the accused herein denied his

involvement in the offence and stated that, false

case had been filed against him. After hearing

both the sides and after appreciating evidence

adduced by the prosecution, the learned Trial

Judge acquitted the accused herein, from the

charge of offence under Sections 307 of IPC,

read with Section 25(1)(ac) and Section 25(1)(aa)

of the Arms Act and Section 135(1) of the

Bombay Police Act.

5. Ms.Jirga Jhaveri learned APP appearing on behalf

of the appellant-State relied on the averments

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made in the appeal and submitted that the

impugned judgement, whereby, the accused is

acquitted on 13.03.2002, by giving him benefit of

doubt is required to be interfered with, and that,

the impugned judgement should be quashed and

set aside.

6. Mr.Mrudul Barot the learned advocate appearing

for the sole respondent-accused submits that the

independent witnesses who have deposed below

Exhibits 5, 6 and 8 have not supported the case

of the prosecution. The impugned panchnama

below Exh.31 is not supporting the case of the

prosecution though, the accused had fired at the

place of incident, no bullet was found and the

competent Court had ordered acquittal which is

just and proper. After firing by police constable

Navalsinh and P.I. Shri Parmar, the cartridges

retained by them were not found at the place of

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incident and in view thereof, the competent

Court had rightly held that, the aforesaid was

done with an intent to save themselves from the

incident that had occurred. Panchas who were

examined below Exh.17 have turned hostile.

Reliance is placed on the ratio laid down by

Hon'ble Apex Court in case of Sanjeev v. State

of Himachal Pradesh reported in 2022 (6)

SCC 294. Mr.Barot thus submitted that, the

appeal may be dismissed.

7. Having heard the learned advocates appearing

for the respective the parties and having

considered the evidence on record and the

depositions of the prosecution witnesses, in our

opinion, the following emerges:

7.1 As per the charge framed by the prosecution

below Exh.4 which is duly produced at page 47,

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accused Alimamad @ Aliyo Taiyab Shetha was

released on parole in an offense wherein he was

convicted of life imprisonment and at 4:00 a.m.

On 19.04.2001 at the house of Noormahmad Sidi

where the accused was hiding after having

jumped his parole, did not surrender before the

respondent authority. The accused had fired

from a 7mm pistol on the complainant i.e. PSI

Shri Parmar - the police personnel with an

intention to kill him, thereby, committing an

offense under Section 307 of the Indian Penal

Code though there was a notification issued by

the District Magistrate which was in force i.e.

not to use knife and pistol resulting in offense

under Section 135(1) of the Bombay Police Act.

The accused was in possession of country-made

revolver and live cartridges without license, and

had fired rounds using the same resulting in an

offense punishable under Sections 25(1)(AC) and

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25(1)(AA) of the Arms Act.

7.2 In the aforesaid set of facts, having

examined the dispute threadbare, it emerges

from the perusal of the depositions of PW-1

Dr.Ukabhai Chandravadia - Medical Officer at

Bhanvad Primary Health Center, wherein, the

accused was given primary treatment and PW-2

Dr.Khalid Qureshi - Medical Officer at

G.G.Hospital, Jamnagar, it was the accused who

was injured by firearm. The injury certificates

are also produced on record at page 95 and 96.

The deposition of the doctor Dr.Khalid is placed

on record below Exh.14. The medical certificate

issued by Dr.Khalid is below Exh.15. It emerges

that, the accused was admitted as an indoor

patient on 19.04.2001 and was discharged on

07.06.2001.

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7.3 The prosecution witnesses namely, PW-5

Roshanben below Exh.19. Noormahmad Sidi -

father of Roshan below Exh.20 and PW-8-Ishak

Noormahamad below Exh.24 are independent

witnesses who had not supported the prosecution

case. The aforesaid witnesses are declared

hostile.

7.4 It is the case of the prosecution that the said

witnesses had deposed against the evidences in

view of a compromise arrived in an offense under

Section 376 of the Indian Penal Code, which, as

such, is not credible in view of the fact that, if

the accused had inflicted blow on Roshanben's

heel with a knife, then under such

circumstances, there was no blood found on the

knife. Further, the accused's fingerprints could

also have been found on the knife but, no such

comparison was undertaken by the prosecution.

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7.5 It is not in dispute that, when the incident

occurred at 4:00 a.m., Noor Mohammad, Roshan

and Ishak were asleep outside their houses. It

was further deposed by Roshanben that, she was

not raped by the accused. She was asleep

outside the house wherein, her father and

brother were also present and that, she was also

not injured by knife. It further emerges that, the

accused had allegedly fired two cartridges at the

time of incident, which the police had left at the

place of offense which were duly seized during

the panchnama of the place of offense. There

was no other unused cartridge in the pistol and

no unused cartridge was found from the pocket

of the accused. In view thereof, the empty

cartridge found from the place of offense could

not be compared. After firing by the accused and

by the police authorities upon the accused, the

accused received injuries, PSI Shri Parmar

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seized the muddamal pistol and knife in his

custody with the help of his handkerchief and

produced the same before the Investigating

Officer Shri C.P.Raval. In our opinion, the police

authorities could have compared the fingerprints

of the accused on the pistol and knife by taking

separate fingerprints from the accused and could

have compared both through the FSL. However,

the prosecution had failed to follow said

procedure.

7.6 Further, the complainant i.e. PSI Parmar

and Navalsinh opened fire at the accused herein.

However, they thought it fit to collect the said

cartridges and had retained them. The

competent Court had arrived at a finding of fact

that from the aforesaid action, it can be inferred

that such an act was undertaken by the police

officers to save their skin.

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7.7 The Investigating Officer has shown that the

pistol seized from the accused was a 9 mm pistol

whereas, as per the ballistic report the said pistol

was actually of 3/7.62 caliber which indicates

that, the Investigating Officer was unaware of

the pistol's actual caliber. He also stated in his

evidence that, no fingerprint marks were found

on the pistol and therefore, they were not sent

for fingerprint analysis.

7.8 Shri Parmar though having filed the

complaint below Exh.38 had not mentioned the

names of the independent witnesses Roshanben,

Noor Mohammad and Ishak in his complaint who

were present near the house. Moreover, they

were aware that the present accused could have

been apprehended from Roshanben's house with

their help. Additionally, the fact that the accused

pushed Roshanben forward and opened the door,

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though is mentioned in Roshanben's complaint

below Exh.54, the same is not stated in the

complaint below Exh.38 filed by Shri Parmar.

7.9 The scene of offence panchnama does not

support the prosecution wherein the panch

witnesses turned hostile.

8. In light of the aforesaid, in our opinion, the

prosecution has failed to bring the act of the

accused within the ambit of Section 307 of the

Indian Penal Code, whereby while examining

whether a case is that of commission of the

offense under Section 307 of the IPC, the Court

is required to see whether the act, irrespective of

result was done with the intention or not and and

the circumstances mentioned in the section in

view of the following.

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(a) The intention of knowledge of accused must

be such as necessary to constitute murder.

Without such ingredient being established, there

can be no offense of attempt to murder.

(b) In the facts of the case, the prosecution has

failed to prove beyond reasonable doubt that the

accused intended to cause death. Further there

is inconsistency in evidence as discussed herein

above. The Muddamal weapon i.e. pistol having

not been sent to FSL for comparing the cartridge

used by accused at the time of firing and no

other cartridge having been found from

accused's pocket and the knife which was used

by the accused as per the prosecution which had

no blood smears.

9. At this stage, it is appropriate to refer to the

ratio laid down by the Hon'ble Supreme Court in

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case of Sivamani and another v. State

represented by Inspector of Police reported

in 2023 SCC OnLine SC 1581. Paragraph No.9

of the judgement read as under:

"9. In State of Madhya Pradesh v Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that '...The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.' The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-

threatening injury was not necessary to maintain a conviction under Section 307, IPC, 'The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows

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inflicted can be considered to infer intent.'

10.At this stage, it is absolutely apt to refer to the

decision in case of Bhupatbhai Bachubhai

Chavda and another reported in [2024] 4

S.C.R. 322. Relevant paragraphs of the

judgement read as under:

"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further

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strengthens the presumption of innocence of the 326 [2024] 4 S.C.R. Digital Supreme Court Reports accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.

7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.

...

11. Therefore, the appeal must succeed. We set aside the judgment and order dated 14th December 2018 of the High Court and set aside the conviction of the appellants. The

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judgment and order dated 5th July 1997 of the Trial Court is restored. The appeal is, accordingly, allowed. The bail bonds of the appellant no.2 are cancelled. The appellant no.1 shall be forthwith set at liberty unless he is required to be detained in connection with any other case."

11. It is also a settled legal position that in acquittal

appeals, the appellate court is not required to re-

write the judgement or to give fresh reasonings,

when the reasons assigned by the Court below

are found to be just and proper. Such principle is

laid down by the Hon'ble Apex Court in the case

of State of Karnataka Vs. Hemareddy,

reported in AIR 1981 SC 1417 wherein it is

held as under:

"... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal,

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will ordinarily suffice."

11.1 Thus, in case the appellate court agrees

with the reasons and the opinion given by the

competent court below, then the discussion of

evidence at length is not necessary.

12. Further, once the muddamal weapon i.e. the

revolver having been used in the offense is not

proved, the question of committing offense under

Sections 25(1)(AC) and 25(1)(AA) of the Arms

Act read with Section 135 of the Bombay Police

Act also does not arise.

13. We have appreciated, re-appreciated and re-

evaluated the evidence on the touchstone of