CR.A/152/1997 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 152 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 NIYAZ AHEMAD @ PUTYTUSAUD AHMAD SHAIKH & 2 - Opponent(s) ========================================= Appearance : MR MR MENGDE, APP for Appellant(s) : 1, MR IM MUNSHI for Opponent(s) : 1 - 3. ========================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 20/02/2008 ORAL JUDGMENT Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Metropolitan Magistrate, Ahmedabad [for short 'learned Magistrate'] dated 30/10/1996 in Criminal CR.A/152/1997 2/9 JUDGMENT Case No. 1140 of 1993, the State of Gujarat has preferred this appeal under section 378 of the Code of Criminal Procedure [for short 'Cr. P.C.']. By virtue of the impugned judgment and order, the learned Magistrate was pleased to acquit the present three respondents – accused as well as the 4th accused – Muzahid Imatiulla Asari for the offences punishable under sections 25(1)(a) and 27 of the Arms Act and under section 135(1) of the Bombay Police Act. 2. The case of the prosecution, in nut shell, is as under :- 2.1. Original complainant before the police, one Bhimsinh Gumansinh was on protection duty on 13/6/1993 near Archana Estate on Soma Textile Road, in the area called Rakhial in the city of Ahmedabad. At about 5.00 p m Bhimsinh saw four persons wandering near the estate. These four persons were the present three respondents – accused as well as Muzahid Imatiulla Asari. Their conduct appeared to be doubtful to said Bhimsinh and thereupon search of said persons was made and at that time from the possession of respondent accused no. 1 – Niyaj Ahmed, one country made revolver and from the possession of respondent – accused no. 2 – Khalikhan Abid Pathan two cartridges and from the possession of respondent accused no. 3 – Afrojkhan Moinkhan Pathan two cartridges were recovered. Verifying the country made revolver, one cartridge from its chamber was recovered. It was the case of the prosecution that the 4th CR.A/152/1997 3/9 JUDGMENT accused – Muzahid Imatiulla ran away. Bhimsinh informed the Police Station Officer of Rakhial Police Station telephonically. Police sent mobil van and in the said mobile van the complainant and accused were taken to the police station. Bhimsinh lodged FIR at the police station and Investigating Officer commenced investigation. After receiving FSL report and the sanction for launching prosecution from the competent authority, the police filed charge-sheet against the four accused persons including three respondents – accused. Since respondents – accused did not plead guilty, the prosecution adduced its oral and documentary evidence. 2.2. The testimony of panch witness Gaurang Patel was recorded at exh. 5. Testimony of second panch Mukesh Mahavirbhai Patel was recorded at exh. 8-A. The deposition of complainant Bhimsinh was recorded at exh. 7 and the Investigating Officer PSI Keshavlal Kodarlal Patel was examined at exh. 9. The prosecution produced relevant documentary evidence like FIR, seizure panchnama, FSL report and the sanction order. After prosecution concluded its evidence, the learned Magistrate was pleased to record further statements of present three respondents – accused wherein they generally denied all the allegations levelled against them. After considering the evidence on record and after hearing arguments advanced on behalf of both the parties, the learned CR.A/152/1997 4/9 JUDGMENT Magistrate delivered the impugned judgment and order acquitting present three respondents – accused. 3. On behalf of the appellant – State, learned APP Mr. Mengde vehemently argued that the learned Magistrate committed serious illegalities in not properly appreciating the evidence on record. The testimony of the complainant Bhimsinh Gumansinh is supported by the depositions of panch witnesses. It has come in evidence that five cartridges and one country made revolver were recovered from the accused persons. As per the FSL report, the country made revolver was in working condition. The learned Magistrate erred in not appreciating the testimony of panch witness Gaurang Patel. The offences alleged against the accused are serious offences and the learned Magistrate should not have lightly brushed aside the evidence adduced by the prosecution. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order passed by the learned Magistrate be set aside and the respondents – accused be appropriately punished for the offences punishable under sections 25 (1)(a) and 27 of the Arms Act and under section 135(1) of the Bombay Police Act in accordance with law. 3.1. On behalf of the respondents – accused, learned counsel Mr. IM Munshi, during the course of arguments, fully supported the impugned judgment and order passed by the learned Magistrate. It was CR.A/152/1997 5/9 JUDGMENT submitted that the learned Magistrate did not commit any error in appreciating the evidence on record. That considering the evidence adduced by the prosecution and the reasons assigned in the impugned judgment by the learned Magistrate while appreciating said evidence, it becomes crystal clear that there are major contradictions and lacuna in the case of the prosecution. That the power of appellate Court as contemplated under section 378 of the Cr. P.C is very limited and circumscribed. Therefore, it is submitted that the appeal be dismissed. 4. It is now well settled that though the appellate Court under section 378 of the Cr. P.C., can reappreciate and re-evaluate the evidence adduced by the prosecution. However, it is further well settled that the appellate Court would not interfere with the order of acquittal unless it is found that the judgment of the trial Court is perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. It is further to be considered that even when two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 5. In the aforesaid background, if the testimony of complainant Bhimsinh Gumansinh, exh. 7 is considered, then according to him, on 13/6/1993 he was deployed on protection duty near Archana Estate in the CR.A/152/1997 6/9 JUDGMENT area called Rakhial in the city of Ahmedabad and at about 5.00 p m respondents – accused were found wandering on the road. Their conduct appeared to be doubtful and upon search, he found one country made revolver containing one cartridge in its chamber from the respondent – accused no. 1 and from the possession of respondents nos. 2 and 3, two cartridges from each of them were found. He telephonically informed the Police Station Officer, Rakhial Police Station. Police sent mobile van and in the said mobile van he himself accompanied by three respondents – accused went to Rakhial Police Station and he lodged FIR in the police station. The deposition of panch witness Gaurang Patel is recorded at exh. 5. According to his deposition, on 13/6/1993 he was called at Rakhial Police Station. The protection people handed over a revolver to PSI. They also handed-over four cartridges to the PSI. Police had drawn panchnama and cartridges were recovered and he signed said panchnama. Considering his deposition, no-where he referred the presence of all or any of the accused persons at the time of preparation of panchanam. The second panch of the panchnama, Mitesh was examined at exh. 8-A and according to his deposition, he was called near Archana Estate and one revolver and five cartridges were in the possession of one policeman. However, he stated that one Police Inspector and accused were present. In this connection, if the panchnama exh. 6 is considered, it transpires that CR.A/152/1997 7/9 JUDGMENT the panchnama was drawn near Archana Estate in the area called Rakhial. There is nothing in the panchnama that it was prepared at Rakhial Police Station as deposed by panch witness Gaurang Patel. Further more, again considering testimony of complainant Bhimsinh, in his entire deposition he no-where stated about preparation of panchnama and where it was prepared. According to him, after he found out the offensive Muddamal, he telephoned to Police Station Officer, Rakhial Police Station and police sent mobile and in the said mobile he himself and three respondents accused went to the Rakhial Police Station and in police station he lodged FIR. Coming back to the panchnama exh. 6, as stated above, it is stated therein that it was drawn at Archana Estate, Rakhial. Further more, in the panchnama, the crime register number, etc., are mentioned; meaning thereby that the panchnama was prepared after the complainant Bhimsinh lodged the FIR and after the registration of said FIR, the panchnama must have been prepared. If the panchnama was prepared before the registration of the FIR, then the crime register number would not have been there in the panchnama. Therefore, the sum and substance is that whether the panchnama was prepared at the scene of offence or in Rakhial Police Station is not certain. Moreover, whether the panchnama was prepared before complainant lodged FIR or afterwards is also not certain and this creates doubt about the case of the prosecution. In the CR.A/152/1997 8/9 JUDGMENT panchnama exh. 6 it is stated that the panchnama was prepared in presence of PSI, Rakhial Police Station. 5.1. The deposition of Investigating Officer PI - Keshavlal Patel was recorded at exh. 9. In his deposition he no-where clarified as to the place where recovery panchnama was prepared and who was the PSI of his police station in whose presence the panchnama was prepared. In his deposition he stated that he received sanction order for launching the criminal prosecution against the accused persons from the Deputy Police Commissioner. The sanction order is at exh. 13. Considering the sanction order, it clearly transpires that the only fact narrated in the sanction order is that the sanction was given for launching prosecution against the accused persons, who were arrested. Their names are also not mentioned in the sanction order and no brief details regarding the papers, the sanctioning authority perused before according the sanction, are mentioned in the sanction order exh. 13. Moreover, considering the oral depositions of the witnesses examined by the prosecution and the documentary evidence produced by the prosecution before the trial Court, no-where any evidence, either oral or documentary, is produced by the prosecution proving its case for offence punishable under section 135(1) of the Bombay Police Act. CR.A/152/1997 9/9 JUDGMENT 6. In light of the above discussions, it becomes clear that considering the reasons assigned by the learned Magistrate in the impugned judgment as well as in light of the discussions made by this Court in this judgment, there is no reason whatsoever to interfere with the impugned judgment and order delivered by the learned Magistrate, wherein the learned Magistrate was pleased to acquit the accused persons. Therefore, the appeal deserves to be dismissed. In the result, the appeal is hereby dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.