CR.A/268/1997 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 268 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT - Appellant(s) Versus JAKIRHUSAIN SAMSUDDIN SHAIKH - Opponent(s) ====================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, MR AR SHAIKH for Opponent(s) : 1, (MR RAVI R TRIPATHI) for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 11/03/2008 ORAL JUDGMENT By preferring this appeal under section 378 of the Code of CR.A/268/1997 2/12 JUDGMENT Criminal Procedure, 1973 [for short 'the Code'] the appellant – State of Gujarat has challenged the legality and validity of impugned judgment and order passed by the learned Judicial Magistrate First Class, Dehgam [for short 'the learned Magistrate'] om 13/1/1997 in Criminal Case No. 1473 of 1994. The learned Magistrate was pleased to acquit respondent – accused for the offence punishable under section 324 of the Indian Penal Code [IPC]. 2. The prosecution case, in nut-shell, is as under :- 2.1. It is the case of the prosecution that the incident occurred at about 13 hours on 23/8/1994 in the premises of industry called 'Bharat Agro Industries', situated near Pathikashram in Dehgam. That at the relevant time injured Yusufbhai Samsuddin was there in his chamber at the industry. At that time the accused came inside the industry and went inside the chamber of Yusufbhai carrying sword in his hand. The accused inflicted a blow with the sword on the glass panel of the chamber of Yusufbhai and caused damage to the glass panel. Thereafter, the accused inflicted one blow of the sword which caused injury on the left side of the face of Yusufbhai, which injury extended upto neck and chest. When the accused was about to inflict second blow with the sword, Yusufbhai caught the sword and thereby Yusufbhai sustained injury on his right palm. That thereupon, the complainant Fajalbhai Samsuddin immediately went to the place of offence to save Yusufbhai and the complainant Fajalbhai tried to snatch away the sword from the hands of the accused and while doing so, the complainant Fajalbhai sustained injury on his left palm. Both the injured persons i.e., the complainant Fajalbhai and injured Yusufbhai went to the private clinic of Dr. Kiran Parikh for treatment. In the FIR it is stated that the motive behind this offence was that Yusufbhai CR.A/268/1997 3/12 JUDGMENT is facing a criminal trial regarding the offence of beating his wife and keeping that enmity in mind, the accused caused injuries to Yusufbhai and the complainant Fajalbhai. In connection with this office, complainant Fajalbhai lodged FIR before the police. The police registered the FIR and started investigation. Statements of witnesses were recorded and in presence of panchas, panchnama of the scene of offence was drawn and the weapon sword was recovered. After receiving the injury certificate issued by Dr. Parikh, the police filed charge-sheet against the accused for the offences punishable under sections 326 and 324 of the IPC and under section 135 of the Bombay Police Act. 2.2. The learned Magistrate framed charge against the accused for the offence punishable under sections 326 and 324 of the IPC and under section 135 of the Bombay Police Act. Since accused did not plead guilty, the prosecution adduced its oral and documentary evidence. The prosecution examined the complainant Fajal Samsuddin at exh. 17. In his deposition the FIR was produced at exh. 18. The deposition of injured witnessYusufbhai Samsuddin was recorded at exh. 19. The prosecution examined panch witnesses Manugiri Prabhatgiri at exh. 21, Himatbhai Mansukhbhai at exh. 26 and Yusufbhai Abdul at exh. 31 in connection with the panchnama of scene of offence exh. 22 and the recovery of weapon sword respectively. The deposition of Dr. Kiran Parikh was recorded at exh. 33 and in his deposition doctor produced the injury certificates of the complainant Fajalbhai and injured witness Yusufbhai at exhs. 34 and 35 respectively. The deposition of Investigating Officer [IO] PSI Pochabhai Patel was recorded at exh. 39. No more witnesses were examined by the prosecution. 2.3. After the conclusion of the evidence adduced by the CR.A/268/1997 4/12 JUDGMENT prosecution, the learned Magistrate recorded further statements of the accused under section 313 of the Code, wherein, in short the accused denied all the allegations levelled against him by the prosecution. After considering oral and documentary evidence on record and after hearing arguments advanced on behalf of both the parties, the learned Magistrate delivered the impugned judgment and order whereby the learned Magistrate was pleased to acquit the accused from the charges levelled against him. 3. On behalf of the appellant State, learned APP Mr. Mengde submitted that the impugned judgment and order delivered by the learned Magistrate is contrary to law and facts on record. That considering the depositions of complainant Fajalbhai and the injured witness Yusufbhai, it becomes crystal clear that the accused had caused injuries to both these witnesses with the help of weapon sword and that the offence took place in a private premises which was chamber of Yusufbhai in the industry called 'Bharat Agro Industries'. That therefore, except two injured witnesses, there was no scope for availability of any independent witness. That in the impugned judgment, the learned Magistrate observed that prima-facie it can be said that the prosecution proved its case. That despite such observation, upon flimsy ground the learned Magistrate recorded the order of acquittal of the respondent – accused. That as a matter of fact, the evidence adduced by both the injured witnesses is supported by the medical evidence in the form of deposition of Dr. Parikh and the injury certificates That there was no reason whatsoever to discard the testimonies of two injured witnesses. That learned Magistrate erred in holding that the act on the part of the injured witnesses to take treatment in private hospital of Dr. Parikh was suspicious; merely because they took CR.A/268/1997 5/12 JUDGMENT treatment in private hospital that itself cannot be said to be any doubtful action on their part. That the reasoning assigned by the learned Magistrate in the impugned judgment are improper, perverse and unwarranted to the facts of the present case. Therefore, it is submitted that the impugned judgment and order passed by the learned Magistrate be set aside and the respondent – accused be convicted for the offences punishable under sections 326 and 324 of the IPC and under section 135 of the Bombay Police Act and be sentenced appropriately for the offences in accordance with law by allowing this appeal. 3.1. None appeared for the respondent – accused. 4. Before the evidence adduced in this case by the prosecution is appreciated or re-appreciated by this Court, it would be necessary to consider the following principles established by the Hon'ble Supreme Court in the case of Chandrappa V/s. State of Karnataka reported in (2007) 4 SCC 415 :- “(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”, “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 emphasise 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. CR.A/268/1997 6/12 JUDGMENT (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 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 reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 5. Keeping in mind the above principles established by the Hon'ble the Supreme Court, if the oral and documentary evidence adduced by the prosecution in this case is re-appreciated, then it is clear that as per the case of the prosecution the incident took place at about 13 hours on 23/8/1994. However, the learned Magistrate in the impugned judgment observed that in connection with this offence, complainant Fajalbhai Samsuddin lodged the FIR at 22-00 hours before the police. The learned Magistrate observed that thus after the occurrence of the alleged offence, the complaint came to be filed after delay of about 9 hours. In this connection, considering the deposition of complainant Fajalbhai exh. 17 in his cross-examination on behalf of the accused he admitted that the police station is just near the premises of the industries wherein the offence took place and it takes about 5 to 10 minutes to reach to the police station from the industries. The learned Magistrate observed that despite the fact that the police station was so near from the place of so-called offence, the complaint was delayed by 9 hours. The complainant in his deposition exh.17 nowhere explained the delay caused CR.A/268/1997 7/12 JUDGMENT for filing delayed complaint. However, in the FIR exh.18, it is stated that soon after sustaining injuries, both the injured witnesses complainant – Fajalbhai and Yusufbhai went to the hospital of Dr. Parikh for taking treatment and thereafter the FIR was filed. There cannot be dispute about the fact that soon after sustaining injury, if the injured person instead of going to police station, decides to take medical treatment and first in point of time if he takes medical treatment, and thereafter he informs the police about any offence, such action on the part of the injured person cannot be said to be posing any suspicion or doubtful situation, and in that case, it can be said that even delay, if any in lodging FIR can be said to have been properly explained. But, in the present case, the thing is not simple as it appears. Both the injured persons in their depositions say that first they opted to go to the hospital of Dr. Parikh for medical treatment. However, in this connection, if the deposition of Dr. Kiran Parikh exh.33 is considered, Dr. Parikh stated that both Yusufbhai and Fajalbhai came to his hospital for medical treatment, he treated both the injured persons and issued injury certificates. However, Dr. Kiran Parikh says that about the incident, he telephonically informed the police. In his cross- examination on behalf of the accused, again Dr. Parikh stated that he had informed the police that both the patients had come to his hospital. However, he stated that he did not inquire as to whether police had noted down his telephonic message. Now in this connection, considering the deposition of I.O. PSI Patel exh.39, he nowhere stated in his deposition about any telephonic message received by him in his police station. PSI Patel totally keeps silence about this aspect of the matter. As against this, Dr. Kiran Parikh deposed on oath that he informed the police about the incident telephonically. As stated above, on the part of police machinery, CR.A/268/1997 8/12 JUDGMENT there is no specific denial about this aspect of the matter in the deposition of PSI Patel. When such is the situation, the learned Magistrate rightly observed in the impugned judgment that not only the FIR was delayed by 9 hours, but, even the delay cannot be said to have been satisfactorily explained. CR.A/268/1997 9/12 JUDGMENT 6. Both the injured witnesses in their deposition stated that they sustained injuries by the weapon – sword on different parts of their body. Considering the deposition of Dr. Parikh together with injury certificates exhs.34 & 35, it clearly transpires that both the injured persons sustained simple injuries and even Dr. Parikh admitted this fact in his deposition. Both the injured witnesses stated that they were admitted in the hospital of Dr. Parikh. Considering the deposition of Dr. Parikh exh.33, both the injured were treated by him as outdoor patients. They were not admitted in his hospital. Dr. Parikh admitted that none of the injuries sustained by any of the injured persons caused any fracture. The learned Magistrate int the impugned judgment observed that despite this, the police filed charge- sheet against the accused wherein one of the offences alleged was punishable under section 326 of the IPC. That none of the injured witnesses sustained any grievous injury as defined under section 320 of the IPC. The learned Magistrate observed that considering this aspect of the matter along with the fact that there was suspicious delay is filing the FIR, the combined effect of both these aspects would lead to suggest that the prosecution failed to prove its case beyond any reasonable doubt. In the result, in para – 14 of the impugned judgment, the learned Magistrate observed that the charge against the accused for the offence punishable under section 326 of the IPC even requires to be dropped. Similarly, about the charge framed against the accused for the offence punishable under section 135 of the Bombay Police Act is concerned, the learned Magistrate observed that the prosecution failed to prove its case that at the relevant time, covering the place of offence, any proclamation was issued prohibiting any arms or weapons. Neither the I.O. PSI Patel in his deposition stated that any such proclamation was issued nor copy of any CR.A/268/1997 10/12 JUDGMENT such order is produced by him. Over and above this, even as per the case of the prosecution, the so-called offence took place in a private factory premises. Under such circumstances, the learned Magistrate rightly observed that even the charge framed against the accused for the offence punishable under section 135 of the Bombay Police Act deserves to be dropped. As per the case of the prosecution, at the time of incident, accused caused injuries to the complainant Fajalbhai and witness Yusufbhai by the sword. As per the case of the prosecution, the weapon – sword was produced before the police by the accused in presence of panchas Himmatbhai Mansukhbhai and Yusufbhai Abdulbhai as per panchnama exh.27. Now, in this connection, considering the depositions of panchas Himmatbhai Mansukhbhai and Yusufbhai Abdulbhai, both of them were declared hostile witnesses by the prosecution. They did not support the contents of the panchnama exh.27. Even considering the deposition of I.O. PSI Patel exh.29, nowhere he stated that the weapon sword was recovered from the accused in presence of panchas by panchnama exh.27. Furthermore in the impugned judgment, the learned Magistrate observed that when there was specific allegation against the accused that he caused injury with the help of a weapon like sword, it was the duty of the prosecution to show said weapon – sword to Dr. Kiran Parikh when the deposition of Dr. Parikh was recorded in the Court of learned Magistrate. Considering the deposition of Dr. Parikh exh.33, nowhere it transpires that he was shown muddamal weapon – sword during the course of his deposition and any opinion was tried to be obtained from him regarding the injuries sustained by both the witnesses as to whether those injuries were possible by muddamal sword or not. Nothing whatsoever was done CR.A/268/1997 11/12 JUDGMENT on the part of the prosecution. Thus, the factum of recovery of the weapon – sword cannot be said to have been established nor any opinion was obtained from Dr. Parikh by showing the weapon – sword to him during the course of his deposition about the possibility of such injuries being caused with the help of said sword. 7. Considering the evidence on record, it transpires that respondent – accused Zakirhussain Shamsuddin, complainant Fajalbhai Shamsuddin and injured Yusufbhai Shamsuddin are three brothers. Considering the depositions of complainant Fajalbhai and injured Yusufbhai, it transpires that before about a year or so from the date of this incident, the wife of injured witness Yusufbhai was beaten. As per the deposition of complainant Fajalbhai exh.17 and FIR exh.18, Yusufbhai's wife was beaten by Yusufbhai and in that connection criminal case was filed against Yusufbhai. Whereas, considering the deposition of Yusufbhai exh.19, he stated that his wife was beaten by the accused and in that connection the criminal case was filed against the accused, and keeping this in mind, the accused assaulted Yusufbhai and complainant Fajalbhai. Thus, about the motive, there is no consistent evidence, in the sense that the motive behind this incident is alleged to be some another incident, which took place about one year back regarding beating of wife of Yusufbhai. Whether the wife of Yusufbhai was beaten by her husband Yusufbhai or by accused, there is contradictory version. In this background, in the impugned judgment the learned Magistrate rightly observed that even about the motive, behind this incident, a reasonable doubt is created during the course of evidence. 8. In light of the above discussions, it cannot be said that the findings arrived at by the learned Magistrate that the prosecution failed to CR.A/268/1997 12/12 JUDGMENT prove its case beyond reasonable doubt can be said to be erroneous, illegal or incorrect. In this background, considering the principles established by the Hon'ble Supreme Court in the case of Chandrappa Vs. State of Karnataka (supra) , this appeal deserves to be dismissed. 9. The appeal is therefore dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.