Gujarat High Court
State Of Gujarat vs Jakirhussain Alias Chelo Mahmadbhai ... on 16 September, 2025
NEUTRAL CITATION
R/CR.A/953/1999 JUDGMENT DATED: 16/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 953 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
JAKIRHUSSAIN ALIAS CHELO MAHMADBHAI JIDHRAN
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Appearance:
MS VRUNDA SHAH, ADDL PUBLIC PROSECUTOR for the Appellant
MR BC DAVE(245) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 16/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
1. The State has preferred this appeal challenging the
acquittal of the accused for the offences under Sections
354, 302 and 324 of the Indian Penal Code.
2. A crime was registered on 9.8.1998 at about 6.45 to
7.00 a.m., in which, it was alleged by Afzalbanu
(deceased) that she and her mother Sugnabibi were
sleeping in front of the house on their cots, and at about
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3.30 a.m. in the morning, Afzalbanu woke up when
somebody put hand on her body and she saw the accused
sitting on her cot. It was alleged that she raised a cry,
and this was restrained by the accused by putting his
hand on her mouth. It was further alleged that when she
tried to raise a cry, the accused got excited and inflicted
knife blows on the right side of her abdomen and near her
right eye, as a result of which, she started bleeding.
3. It was alleged that one Mirumiya Saidumila (PW-3)
and Lalmiya Amirmiya (PW-2) who were residing in the
vicinity came over the spot and tried to intervene to
rescue her, during the course of which PW-2 Lalmiya also
received a minor injury inflicted by the accused from his
knife. It was alleged that on the persons assembling at
the spot, the accused fled. It was thereafter stated that
complainant Afzalbanu was taken in a vehicle with the
help of the villagers to the police station wherein, her
statement was recorded.
4. The complaint reveals that thereafter Afzalbanu
(deceased) was taken to a hospital where she was
treated, but she was not ale to recover from the injuries
and ultimately succumbed to the same on the same day,
i.e. 9.8.1998, at about 6.45 p.m.
5. The police, thereafter, took up the investigation and
after recording the statements of the witnesses and after
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recovering the knife under a panchnama proceeded to file
a charge-sheet against the accused. A charge was
thereafter framed against the accused for the offences
under Section 302, 354 and 324 of the Indian Penal Code.
6. During the course of the trial, 12 witnesses were
examined, including the mother of deceased Afzalbanu,
i.e. Sugnabibi (PW-4), and two other eye witnesses, i.e.
Mirumiya Saidumila (PW-3) and Lalmiya Amirmiya (PW-
2).
7. The Sessions Court on consideration of the evidence
has come to the conclusion that on a conjoint reading of
the depositions of the mother of the deceased and two
neighbours who were supposed to have come to the place
of incident, the assertion that the accused inflicted two
knife blows on the deceased and and also against one of
the eye witnesses could not be accepted since there were
inherent contradictions.
8. The Sessions Court also refused to accept that the
complaint which was registered and which was stated to
be a dying declaration of the deceased could not be
accepted, basically because she was taken to the police
station about 3 hours after the incident and the medical
evidence indicated that was profuse bleeding and,
therefore, would have been unable to give the complaint.
The Sessions Court noticed that the evidence on record
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indicated that the contents of the complaint were
basically dictated by the mother of the deceased and the
thumb-mark of the deceased was affixed by the
complainant and, therefore, the said statement could not
be accepted as a dying declaration.
9. The Sessions Court also disbelieved the evidence of
Lalmiya Amirmiya (PW-2), who alleged that he was an eye
witness to the incident and when he tried to intervene
and stop the attack, because his allegation was that he
had suffered a knife blow, was not reflected in the
medical evidence adduced by the prosecution. The
Sessions Court noticed that PW-2 had only suffered a
contusion and there was nothing indicative of any assault
on him by the knife of the accused.
10. The Sessions Court refused to accept the evidence of
the eye witnesses on the ground that all of them stated
that they had asked Afzalbanu as to what had happened
and she had repeated to all of the three of them about the
assault, which according to the Sessions Court, could not
be believable since Afzalbanu had suffered serious blows
to her abdomen and near her right eye and the possibility
of her reiterating the incident to all the three witnesses
could not be possible.
11. The Sessions Court also noticed that the knife which
was said to have been used in the attack had been
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subjected to a forensic examination and it was found that
it did not have sufficient bloodstains to arrive at the
conclusion that it had been used in the attack against
Afzalbanu.
12. The Sessions Court ultimately found that the Cot on
which the assault was alleged to have taken place and
which was stated to be filled with blood of Afzalbanu was
not subjected to any forensic examination and the
allegation against the accused, regarding the commission
of an offence made out under Section 302 or under
Section 354 of the Indian Penal Code could not be
accepted.
13. It may be pertinent to state that the Sessions Court,
however, taking into consideration the evidence on
record that the accused was found with knife, came to the
conclusion that the accused was found with knife, was
guilty of the offence under Section 324 and convicted and
sentenced him for the said offence to suffer imprisonment
of 4 years.
14. Learned Additional Public Prosecutor appearing on
behalf of the State strenuously contended that in the light
of the evidence of the eye witnesses, the Sessions Court
could not have acquitted the accused for the offences
under Sections 302 and 354 of the Indian Penal Code.
She stated that the mother of the deceased was clear in
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her deposition, which even according to the Sessions
Court, was believable and, therefore, the acquittal was
improper. She also contended that the panch witnesses
supported the case of the prosecution so far as it relates
to recovery of the knife and, therefore, the acquittal was
not justified. In our view, the arguments of the learned
Additional Public Prosecutor do not merit merit
acceptance.
15. It is to be noticed here that the incident is supposed
to have occurred at 3.30 a.m. when Afzalbanu was
sleeping on her cot and she raised a hue and cry when
she was assaulted by the accused. This hue and cry is
supposed to have alerted her mother and two other
neighbours, who ran over to the spot and tried to
intervene and stop the assault. The incident, though
occurred at 3.30 a.m., ultimately resulted in registration
of the FIR only after about three hours.
16. The autopsy report on record indicates that
Afzalbanu had in fact six wounds on her body. One of the
doctors who had been examined and who had seen
Afzalbanu in the vehicle which took her to the police
station and thereafter to the hospital, stated that she was
profusely bleeding and there were two wounds on
Afzalbanu. The fact that the complaint itself indicated
that Afzalbanu was lying in a pool of blood on the cot and
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the doctor also confirmed this assertion three hours
thereafter indicates the extent of bleeding over a period
of three hours. The evidence, basically, indicates that
Afzalbanu had profuse bleeding, which started at about
3.30 a.m. and continued even when she was taken to the
police station at about 6.45 a.m.
17. The Sessions Court has refused to accept the
complaint as a dying declaration on two counts; viz. firstly
on the ground that the evidence indicated that the mother
had recorded the statement and deceased Afzalbanu had
merely affixed her thumb-mark of the deceased on the
said complaint and secondly on the ground that since
Afzal Banu was profusely bleeding, the possibility of
Afzalbanu recording her statement in front of the police
was not believable. In our view, the findings of the
Sessions Court regarding the veracity of the FIR and the
contents thereof cannot be found fault with given the
length and extent of bleeding that Afzalbanu had suffered
which would have rendered her being able to be
conscious and coherent enough to give a complaint,
improbable.
18. As far as the evidence of the mother and two eye
witnesses are concerned, it is to be stated here that the
mother contended that she had raised hue and cry when
the assault took place, as a result of which, the two
neighbours came running over to the place to prevent the
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assault. One of the neighbours, i.e. PW-2, stated that
when he tried to intervene, was also attacked with a
knife. The Sessions Court, however, on consideration of
the medical evidence has noticed that PW-2 had only
suffered contusion and his assertion that he saw the
accused inflicting the knife blows on Afzal Banu and he
was also attacked him when he went to the spot to
prevent the assault cannot be accepted since the action of
inflicting two knife blows on the deceased would have
taken a few moments and hue and cry would be raised
thereafter. The Sessions Court, in our view, was justified
in coming to the conclusion that the version of the
deceased would not be probable for PW-2 and PW-3 to
have noticed the assault by the accused on the deceased,
given the nature of injuries and knife blows inflicted on
her. Further, the say of PW-2 that he was attacked with
the same knife which was not corroborated by the
medical evidence cast a serious doubt about his veracity,
also justifies the finding of the Sessions Court that the
allegation against the accuses had been established
beyon all reasonable doubt.
19. As far as the evidence of the mother, it is to be
noticed that the Sessions Court has no doubt stated that
the deposition rendered by the mother was believable.
But, if the evidence of the mother was to be read in the
context of the evidence adduced by the other two eye
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witnesses, there were several inherent contradictions
regarding the manner in which the assault took place on
Afzalbanu. This has resulted in Sessions Court
disbelieving the evidence of the mother.
20. It would be pertinent to note that the Sessions Court
has taken note of the fact that though the mother of the
deceased stated that there were only two injuries on
Afzalbanu, but the medical evidence indicated that she
has suffered six injuries and this by itself cast a serious
doubt on her entire deposition which was to the effect
that Afzalbanu had only two knife blows. In our view, this
glaring contradiction regarding number of injuries and
the evidence narrated by the mother was by itself
sufficient to disbelieve her evidence and persuade it to
record an acquittal insofar as Sections 302 and 354 of the
Indian Penal Code.
21. This appreciation of the evidence of the mother of
Afzalbanu by the Sessions Court cannot be found fault
with since the narration of the event and her assertion
that Afzalbanu had two knife blows is an obvious
contradiction with the medical evidence on record which
indicates six wounds.
22. It is to be noted here that the knife which was
recovered three days after the incident was stated to
have been found by the side of the road in a hole filled
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with water and on being subjected to a forensic
examination did not have enough bloodstains so as to
establish that it contained the blood of Afzalbanu. This
crucial factor also supports the finding of the Sessions
Court that there was no acceptable evidence which could
establish that the accused was guilty of the alleged
offences.
23. It is to be noticed that the neither the mother nor
the other witnesses stated that there was any motive for
the accused to have committed the offence of assault on
the deceased. We are therefore, of the view that there is
no justifiable ground to entertain the appeal. The appeal
is therefore, DISMISSED.
Sd/-
(NSSG,J)
Sd/-
(UTKARSH THAKORBHAI DESAI, J)
OMKAR
