CR.A/865/1986 1/166 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 865 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ASAFAFKHAN KALANDARKHAN & 2 - Opponent(s) ========================================================= Appearance : MR KC SHAH, APP for Appellant(s) : 1, MS AMEE YAJNIK for Opponent(s) : 1, MR PS CHAMPANERI for Opponent(s) : 2, MR EE SAIYED for Opponent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 26/12/2006 CAV JUDGMENT CR.A/865/1986 2/166 JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. The present appeal is an appeal under Section 378 of the Code of Criminal Procedure, 1973 challenging the judgment and order of acquittal passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Narol dated 21.3.1986 in Sessions Case No.44 of 1985. 2. By the impugned judgment, learned trial Judge has acquitted all three accused from the charge of offence punishable under Sections 302, 120-B and 201 of Indian Penal Code and also from the charge of offence punishable under Section 25-A of the Indian Arms Act committing murder of deceased Firozbhai Abdul Latif by firing gun on the right side of his chest when he was in the motor car of accused No.3 and probably under the influence of alcohol in early hours on 21.2.1984. 3. Learned APP Mr.K.C.Shah has taken us through various grounds of challenge mentioned in para 4 of the memo of appeal as well as the judgment. In nutshell, the say of learned APP Mr.Shah is that CR.A/865/1986 3/166 JUDGMENT finding arrived at by the trial Court is based on erroneous appreciation of oral as well as documentary evidence available on record and some palpably wrong inferences have been drawn which can be said to be conjectures. The admissible and trustworthy evidence though available on record has been ignored conveniently by the learned trial Judge and while recording acquittal, the trial Court has mainly hammered on hypothesis of innocence of accused and even the learned trial Judge has held erroneously that the prosecution has not even proved that the death of deceased Firozbhai is homicidal death. It is wrongly observed that the death may be accidental. When it is not found proved beyond reasonable doubt that the death of deceased Firozbhai is homicidal death and not accidental death, it would not be legal for the trial Court to link all the accused with the crime punishable under Section 302 IPC or charge of criminal conspiracy. Mr.Shah has developed various points during his oral submissions and the arguments advanced by Mr.Shah have been responded by the learned counsel appearing for all three respondents (hereinafter referred as “original accused Nos.1, 2 and 3 respectively for short). Ms.Ami Yagnik has placed the case of accused No.1, Mr.Champaneri has CR.A/865/1986 4/166 JUDGMENT argued for accused No.2 and Mr.E.E.Saiyed made his submissions for accused No.3. 4. To appreciate the say and submissions made before us by the learned APP and the counsel appearing for the respondent accused persons, firstly, we would like to state the case of the prosecution in brief reflected from charge Exh.7. It is alleged that accused Nos.1 and 3 were knowing each other and they were friends of deceased Firozbhai and in the same way, accused No.3 was also knowing accused No.2 and accused Nos.1 and 3 had cordial and friendly relations with accused No.2. Deceased Firozbhai was dealing in the business of tyres of four wheelers and even motor-cycles and cycles. The accused No.3 was dealing in the business of sales and purchase of motor trucks and was also working as Broker in that field. The accused Nos.1 and 3 and mainly accused No.3 was helping deceased Firozbhai in his business of selling tyres and with the help and intervention or guarantee given by accused No.3, deceased Firozbhai was selling tyres to the traders and customers at Savarkundla, a town under the district Bhavnagar. The deceased was required to collect the dues from the customers as he was to pay CR.A/865/1986 5/166 JUDGMENT certain amounts to the supplier and so he was interested in early recovery of the amount due from the customers of Savarkundla. The accused nos.1 and 3 on 20.2.1984 had agreed to accompany deceased Firozbhai to Savarkundla sometime during afternoon hours. Deceased was keen to see that accused no.3, at least, accompanies him to Savarkundla to collect the dues from the customers as those tyres were sold on the request of or at the instance of accused no.3. It emerges from the evidence that tyres were sold at Savarkundla on credit and as per request of accused no.3 by taking some token amount in cash. The brother of deceased Firozbhai was serving with one cooperative bank and during the spare hours he was helping his brother deceased Firozbhai in his business. So, on the date of incident the deceased had told his brother Mohammed Usman his intention to go to Savarkundla with accused nos.1 and 3 for collecting dues from the customers and he had asked him not to go to the bank i.e., to his job on the next day so that he can attend the shop of his deceased brother Firoz. The shop of deceased Firozbhai was situated opposite New Cloth Market and at about 7.30 p.m., to 7.45 p.m., they closed the shop and deceased Firozbhai returned with his brother CR.A/865/1986 6/166 JUDGMENT Mohammed Usman to the residence. The residence of the deceased is in Navi Mohalat, Panch Kuva. In the evening, the deceased also informed his wife Banu Bibi about his intention and programme to go to Savarkundla and after taking meals, he left the home with the suitcase and as it was cold days, he had taken gloves and put on jacket. The deceased went to the shop of accused no.3 situated at Sarkhej road. The accused no.3 at that time, was found reluctant to go with the deceased but on the insistence of the deceased, accused nos.1 and 3 finally agreed and they started in fiat car of accused no.3. It is the say of the prosecution that the wife of the deceased initially requested the deceased not to go because of severe cold but she was asked not to worry because accused nos.1 and 3 were to accompany him and they were to go in the motor car. The deceased had left his residential house at about 8.30 p.m., or so. When the deceased had reached at the shop of accused no.3, accused no.1 was present there and at that time the proposal to proceed for Savarkundla placed by the deceased was not accepted. The accused no.3 tried to avoid the proposal but thereafter, all three i.e., deceased and accused nos.1 and 3 had left the shop in the car of accused no.3. The accused no.3 was driving CR.A/865/1986 7/166 JUDGMENT the car. When they were proceeding in this journey, on the way, they took petrol from the petrol pump of one Lalitkumar and then decided to proceed towards Bagodara. When they were on the way, it is alleged that suddenly the programme to go to Nal Sarovar was worked out and therefore, they had been to village Gangad and took accused no.2 with his muddamal gun. It was decided that, firstly, they will go for hunting at Nal Sarovar and then shall proceed to Savarkundla. They had waited and rested at the petrol pump and then they had started journey towards Nal Sarovar. On the way, when they were just near Nal Sarovar, deceased Firozbhai received gun shot injury from the muddamal gun. So, all three respondents – accused returned with injured Firozbhai as he was to be taken to the hospital. On the way, accused no.2 got down after giving some instructions to accused nos.1 and 3 with his muddamal gun. It is alleged that the accused persons, initially, had decided not to reveal true facts of the case. The accused nos.1 and 3 with the injured proceeded towards the V.S.Hospital and took the injured inside the hospital. It is the say of the prosecution that accused nos.1 and 3 had said to the hospital authority that some unknown persons have injured the deceased when they were CR.A/865/1986 8/166 JUDGMENT proceeding towards Savarkundla. The V.S.Hospital authority, therefore, informed the police personnel who is always there in the hospital known as “hospital duty police”. The hospital duty police in turn informed the Ellisbridge Police Station. The Ellisbridge Police Station immediately rushed to the V.S.Hospital and Investigation Branch of the Ellisbridge Police Station recorded the complaint of accused no.3. After the investigation, the police found that accused no.3 has given false information as to the place of incident. It was also found that the accused who had shot the deceased to death with gun was of accused no.2. The gun shot injury inflicted to the deceased was somewhere near Nal Sarovar. The complaint, therefore, was initially registered by the Ellisbridge Police Station and transferred to the Police Station having jurisdiction over the area indicated by respondent no.3 in his complaint. Mr.Kanpuri P.S.I., of Ellisbridge Police Station, before transferring the investigation to the concerned police station, visited V.S.Hospital as injured Firozbhai was declared dead. He held inquest panchanama and recovered muddamal articles which were with the deceased. The dead body, in turn, was handed over to the hospital for autopsy or postmortem CR.A/865/1986 9/166 JUDGMENT examination and during that time accused no.1 and 3, who were claiming to be the witnesses of the incident, had informed the close relatives of the deceased Firozbhai. The complaint has been registered by P.S.I. - Mr.Kanpuri. Mr.Kanpuri, P.S.I., took the car into surveillance, in the presence of panchas drew the panchnama, took out muddamal suitcase etc., from the motor car. He also sought for assistance from the F.S.L. The F.S.L., expert had reached the V.S.Hospital where the muddamal car was parked. The F.S.L., experts collected the sample in the presence of panchas. They also took chance-prints from the handle of the motor car. Other expert Mr.Thakore took the specimen of blood from the blood stained body of the motor car and thereafter, in the presence of panchas, hand-wash of accused nos.1 and 3 were taken by F.S.L., expert. From the deki of motor car, muddamal articles nos.17 to 31 were recovered. The clothes of the deceased were also recovered which were produced by the police constable. The samples collected from the motor car including hand-wash etc., were sent for analysis to the F.S.L. Thereafter, the offence was transferred to Umrala Police Station. P.S.I., Umrala Police Station found that the place of offence shown by accused no.3 CR.A/865/1986 10/166 JUDGMENT (complainant of the FIR written by Mr.Kanpuri) as well as vardhi given by accused nos.1 and 3 to the hospital authority and/or hospital duty police was false and in reality the incident has occurred near Nal Sarovar in district Ahmedabad (Rural). The investigation was thereafter, handed over to the State Crime Branch. On investigation, the State Crime Branch had reached to the tentative finding that the incident had occurred at Nal Sarovar and probably it was accidental fire. So, the police was preparing for filing of the charge sheet of the offence punishable under Section 304-A of Indian Penal Code. As the widow of the deceased Banu Bibi was worried about the investigation concerning to her husband's death, approached the higher-up by written application and the formal complaint immediately came to be registered. On the complaint received from Banu Bibi for the offence punishable under Sections 302, 201 and 120-B of the Indian Penal Code, the police immediately found that deceased Firozbhai was murdered and the accused persons have tried to play with the evidence and ultimately all three accused came to be charge sheeted for those offences in the Court of Chief Judicial Magistrate, Dholka having jurisdiction over the area where deceased Firozbhai CR.A/865/1986 11/166 JUDGMENT was inflicted with the gun shot injury. 5. To prove the charge, the prosecution has examined number of witnesses and has produced various documents including the opinion expressed by the expert and the medical evidence. The police has also collected certain evidence by drawing panchanama and collecting the documents from the government office so as to prove the occupancy and ownership of the motor car, the muddamal rifle and other transactions that had taken place between the deceased and accused nos.1 and 3 on different occasions. It has also come on record that on 20th February i.e., the day on which both accused nos.1 and 3 proceeded towards Savarkundla for recovery of the dues, accused no.1 and deceased Firozbhai had been to a bank from where accused no.1 had taken the loan against his fixed deposit amount and that loan amount was settled by paying some amount in cash. 6. The witnesses examined by the prosecution can be categorized in three parts, i.e.; (i) Expert witnesses or witnesses who have given opinion evidence; CR.A/865/1986 12/166 JUDGMENT (ii) Witnesses examined to prove the basic facts pressed by the prosecution. In this category, witnesses can be further divided in two parts, i.e., (a) who are capable of establishing some facts by leading their original substantive evidence and (b) Panch witnesses who have been examined to prove the panchnama drawn during the course of investigation; and (iii) The police witnesses. 7. In the judgment under challenge, learned trial Judge has referred 12 major circumstances and it is observed that the prosecution has not successfully established some of these 12 circumstances beyond doubt, which makes the case of the prosecution doubtful and proved circumstances are not capable to establish the link between the accused and the crime, because in the case based on eight circumstantial evidence, proved circumstances or circumstance should be sufficient to establish crime and it is also necessary to establish that they are inconsistent to the innocence of the accused. “May” CR.A/865/1986 13/166 JUDGMENT or “might be” cannot take the prosecution to any favourable end and suspicion however strong it may cannot take place of proof. So, when the prosecution has not proved about four circumstances out of 12 satisfactorily by leading cogent and legal evidence, the accused deserve benefit of doubt and it is likely that gun shot injury found on the person of the deceased may be accidental. Learned trial Judge has found that the prosecution has not even satisfactorily proved that the death of the deceased is homicidal beyond doubt. 8. The say of the learned APP is that this Court, while dealing with the appeal against the order of acquittal, can reappreciate the entire set of evidence available on record and can replace its own reasons even while confirming the acquittal or reversing the same. Considering the scheme of Sections 378 and 386 of the Code of Criminal Procedure (hereinafter referred to as `Code'), there is no embargo in reappreciating the evidence. As per the settled legal position, only for the sake of replacing other alternative probable view the Court, dealing with acquittal appeal, should not assign its own reasons. The Court can positively reach to the CR.A/865/1986 14/166 JUDGMENT conclusion that the view taken by the trial Court while acquitting the accused is erroneous and/or is based on palpably wrong appreciation of evidence. It is not possible for us to agree with the argument advanced on behalf of the respondents accused that while dealing with the appeal against the order of acquittal, this Court cannot and should not reappreciate the evidence and replace its own finding. 9. According to Mr.Shah very mistake has been committed by the learned trial Court in recording the finding in reference to four major circumstances out of 12 narrated in para 22 of the judgment under challenge. For the sake of convenience, we would like to state 12 circumstances canvassed before the Court. Of course, it was argued by the learned APP appearing in the matter that all these circumstances have been established beyond doubt. (A) Decision by accused no.1 and accused no.3 and late Firozbhai to proceed to Savarkundla for collecting the amounts due on credit sales effected by late Firozbhai to various customers of Savarkundla and nearby CR.A/865/1986 15/166 JUDGMENT areas through accused no.3. (B) Disclosure of intention by late Firozbhai to his family members Mahamad Usman and Banubibi to go to Savarkundla in the motor car owned by accused no.3. (C) The accused no.1, accused no.3 and late Firozbhai at night about 8.30 p.m., to 9.30 p.m., started from the shop of accused no.3 in the car of accused no.3. (D) At the petrol pump of Lalitkumar at Sarkhej the petrol was taken and the presence of accused no.1 and accused no.3 with deceased was there. (E) At Bagodara they took petrol from Bagodara petrol pump. (F) At village Meni near Nalsarovar, blood stained clay and control clay were taken. Empty case of used cartridge recovered from Kala Mera. (G) Motor car wheel mark and ownership of CR.A/865/1986 16/166 JUDGMENT motor car of accused no.3. (I) Presence of accused no.1 and 3 at V.S.hospital. (H) Rifle was owned by accused no.2 and its licence in his name. (J) Hand wash of accused nos.1 and 3 taken. (K) Nitrate was in handwash of accused no.1. (L) False vardhi-complaint of place of offence at Vallabhipur Dhasa road. 10. After appreciating the evidence of PW 2 – Exh.16 Banubibi Firozbhai who has proved the letter written by her and addressed to Shri Bhaya, senior most Police Officer, CID Crime Branch of State of Gujarat dated 14.8.1994, PW -3 Mohammad Usmanbhai Havavala, brother of the deceased who has also proved the documents pertaining to the sale of tyres at the intervention of accused No.3 Exh.20, 21 and 22 and PW 25 – Aiyub Allarakha Exh.68 who is the employee of CR.A/865/1986 17/166 JUDGMENT accused No.3 and PW 20 Fakruddin Lalumiya Exh.58, employee of deceased Firozbhai, learned trial Judge has held that the prosecution has proved circumstances “A” and “B” beyond doubt and the discussion has been made by the learned trial Judge in paras 23, 24 and 25 of the judgment. It is also observed by the learned trial Judge that it is also proved by the prosecution witnesses beyond doubt that deceased Firozbhai was to leave for Savarkundla on the night of 20th for collecting debts in respect of credit sale and he was to go in the company of accused Nos.1 and 3 in the car of accused No.3. He had started from his house with muddamal articles, briefcase and had put on muddamal bu-shirt, jacket recovered from the dead body, shoes and socks and had left about 8.00 p.m., and 8.30 p.m. The circumstances – “C” is also found established by the learned trial Judge whereby it has been held that accused No.1 and accused No.3 and late Firozbhai at any time about 8.30 p.m., to 9.00 p.m., had started from the shop of accused No.3 in the car of accused No.3. Learned trial Judge has found that the case of the prosecution has been strongly supported by PW 24 Salimbhai Rehmatkhan Exh.67 who was employed in one Travel Agency and PW 25 Aiyub Allarakha – employee of CR.A/865/1986 18/166 JUDGMENT accused No.3 (Exh.68). This witness Aiyub Allarakha is the son of sister of accused No.3 and also employee of accused No.3. This is not the reason for PW 25 – Aiyub Allarakha to implicate his own master or relative in a serious crime and that too help the family members of deceased Firozbhai. The accused No.3 is the maternal uncle of this witness and was getting salary of Rs.400/- per month. This witness has stated that he used to open shop of accused No.3 and he had been to shop of accused No.3 at about 8.00 a.m., and 8.15 a.m., on 20th for opening of shop. It is proved by this witness that fiat car of accused No.3 was required to be sent for repair to the mechanic. He and the mechanic had been to the City for testing the car and the plain reading of the evidence reveals that he was, at the relevant point of time i.e., about 7.30 p.m., onwards, at the shop. It is stated by this witness that accused No.3 had returned to the shop between 8.00 p.m., and 8.30 p.m. During this period, there was telephonic message from deceased Firozbhai and Firozbhai was telling him that they were to go to Savarkundla. At that time about 9.00 p.m., when this witness has stated without any material contradiction or without making any material improvement that deceased Firozbhai had started for CR.A/865/1986 19/166 JUDGMENT Savarkundla with accused Nos.1 and 3 in the fiat car of accused No.3 at about 9.45 p.m., his version was required to be accepted and according to us, it is rightly accepted by the learned trial Judge. On careful consideration of oral evidence of these witnesses, we are also of the view that in absence of any material contradiction vis-a-vis the police statements and in absence of any material improvements which can be said to be modulation, the finding of the learned trial Judge in reference to circumstance – “C” is legal and it is correct finding. 11. Circumstance “D” is held to be proved. Circumstance “E” is not established. Circumstance “F”, the prosecution failed to establish Circumstance “F” totally. Circumstance “G”, the prosecution has established Circumstance “G” partially. Circumstance “H” is established. Circumstance “I”, the prosecution has not established Circumstance “I” beyond reasonable doubt. Circumstance “J”, the prosecution has established Circumstance “J” beyond doubt that hand-wash of accused Nos.1 and 3 were taken and also that mudguard of the motor car was found with clay of the place of incident. CR.A/865/1986 20/166 JUDGMENT Circumstance “K”, the circumstance of the presence of nitrate is established so far as accused No.1 is concerned and the controlled clay taken from the place of village Meni was identical with clay found on mudguard of the motor car. Circumstance “L”, the prosecution has failed to establish Circumstance “L” that accused No.3 gave false vardhi information as per Exh.73 and gave false complaint Mark 12/2 and shown the place of offence as per Exh.77. Circumstance “L” is also not proved by the prosecution. 12. Learned trial Judge, after discussing the evidence oral as well as documentary, has held that the prosecution has satisfactorily established that at the petrol pump of Lalitkumar at Sarkhej, petrol was taken and the car was fueled and at that time, accused Nos.1 and 3 were there in the car with deceased. It is also held proved that one more important circumstance that accused No.3 is the owner of muddamal car and the deceased along with accused Nos.1 and 3 had left for Savarkundla in that car. However, learned trial Judge has observed that the prosecution has not proved that wheel marks of that car were there at the spot of the alleged incident or CR.A/865/1986 21/166 JUDGMENT area at village Meni, but the conflict in the evidence as to the photographs of the tyre marks found on the earth and the actual design of the tyre compared by the FSL Expert whether has been properly appreciated is the question posed before us in the present case and the question also requires to be addressed that what could be the ultimate effect of this conflict in the evidence qua tyre marks on the merit of the case. 13. Learned trial Judge has held that muddamal 12 bore gun was of the ownership of accused No.2 and he is also having