Gujarat High Court
State Of Gujarat vs Ibrahim @ Abu Daud Sudhaniya on 24 April, 2025
Author: Gita Gopi
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1046 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
IBRAHIM @ ABU DAUD SUDHANIYA & ANR.
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Appearance:
MR HARDIK SONI APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR PM LAKHANI(1326) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. Under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the appeal has been filed against the judgment and order of acquittal passed by the learned Sessions Court, Jamnagar in Sessions Case No.108 of 1996 dated 08.08.1997.
2. Two accused faced the trial and after completion of charge, the learned Sessions Judge came to the conclusion Page 1 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined that the accused No.2 - Razak @ Raju Bachu Bhagad had voluntarily caused hurt to Abbas Ibrahim (P.W.3) and therefore, he was convicted for the offence under Section 323 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), while was acquitted for the offence punishable under Section 504 of the IPC. The learned Sessions Court acquitted both the accused for the offence punishable under Section 302 read with Section 32/114 of the IPC. Further, accused No.2 was also acquitted for the offence punishable under Section 324 of the IPC.
3. On hearing the accused No.2 for the offence punishable under Sections 323 of the IPC, the learned Sessions Judge sentenced him to suffer simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default of payment of fine, accused No.2 to suffer simple imprisonment for a period of further two months. The learned Sessions Judge entitled accused No.2 to have set off for the period undergone by the investigation, inquiry, trial of the case against the sentence imposed, as provided under Section 428 of the Cr.P.C. Thus, accused No.1 was set at liberty.
4. The record shows that accused No.2 died on 22.05.2021 hence, the present appeal stood abated against him by an order dated 19.07.2022.
5. The facts of the case, as were noted by the learned Sessions Judge could be culled out on the basis of the allegations that on 11.11.1995 at about 11:15 a.m., in the area of Village Madhapur-Bhunga in the city of Jamnagar, accused Page 2 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined No.2 - Razak @ Raju Bachu Bhagad gave two to three slaps and fist blow to the complainant - Abbas Ibrahim and abusing him stated, as to why he was looking at him, and thereby, accused No.2 was alleged to have committed the offence punishable under Section 323 of the IPC for causing voluntary hurt to the complainant - Abbas Ibrahim and offence punishable under Section 504 of the IPC for having intentionally insulted the complainant with an intent to provoke the breach of peace.
6. As noted in the judgment, after the aforesaid incident, on the same date, at about 11:15 a.m., accused person in furtherance of their common intention to commit murder of the deceased - Gani Ibrahim, in connivance with each other, did commit the offence of murder of Gani Ibrahim intentionally by causing his death by inflicting knife blows on the left side of his chest. The allegation was that the knife blow was given by the accused No.1, while accused No.2 caught hold of the deceased and therefore, the offence punishable under Section 302 of the IPC read with Section 34/114 of the IPC were charged against them.
7. The charge dated 23.06.1997 at Exh.3 was read over to the accused, whereupon they denied the charge and claimed to be tried.
8. The prosecution story is to the effect that on 11.11.1995 at about 11:00 a.m., the complainant Abbas Ibrahim (PW3) was proceeding on his T.V.S. Moped towards Jamnagar for purchasing goods for his shop. He saw accused No.2 coming Page 3 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined from the opposite direction and, as the complainant looked at him, accused No.2 abused him in filthy language and asked him as to why he was looking at him. Thereupon, (PW3) stopped his Moped, so accused No.2 - Razak @ Raju Bachu Bhagad came near him and abused him and gave him two to three slaps and fist blows. By that time, one Ali Harun and Jaku came running, intervened and rescued him. Thereafter, immediately, the complainant - PW3 went back at his shop and stood there. The prosecution case further states that within 15 minutes thereafter, at about 11:15 a.m., the complainant's brother - Gani Ibrahim (deceased) came with his rickshaw from 'Bedi' side and on the opposite side of the road, both the accused were standing. Accused No.2 - Razak @ Raju Bachu Bhagad raised his hand and stopped the rickshaw, seeing so, the complainant proceeded there, while his brother alighted from the rickshaw. At that time, it is stated that accused No.2 - Razak @ Raju Bachu Bhagad caught hold of Gani Ibrahim and accused No.1 - Ibrahim @ Abhu Daud took out his knife and gave a blow on the left side of the chest. As a result, Gani Ibrahim fell down. Immediately, thereafter, PW4-Amnaben, mother of the deceased and PW8 - Ahmed Allarakha came running. Mother of the deceased - Amnaben raised alarm. Further, it is alleged that accused No.2 - Razak @ Raju Bachu Bhagad assaulted the complainant
- PW3 with his knife, but it stuck at the hand of the mother of the deceased, then, both the accused ran away from the place of the incident.
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9. Mr. Hardik Soni, learned APP, assailing the judgment and order, submitted that the judgment of acquittal, for the offence punishable under Section 302 of the IPC read with Section 34/114 of the IPC acquitting the accused, is against the law and evidence on record. Mr. Soni submitted that the learned Judge has failed to appreciate the evidence of the complainant who has fully supported the prosecution case and failed to appreciate the evidence of the mother of the deceased Amnaben who has stated about the injury sustained at the time of the incident. Mr. Soni submitted that the learned Judge has not appreciated the important evidence of the injured witness and has strangely convicted the accused No.2 for the offence under Section 323 of the IPC. The evidence of Ahmed Allarakha as PW8 has not been properly appreciated. The learned Judge has erred in observing that the accused had a right of self-defence and the observations with regard to the injury on the person of the accused No.1 are contrary to law and evidence on record, while the learned Judge has failed to appreciate the important aspect that both the accused were present at the time of the incident and therefore, the conclusion arrived at by the learned Sessions Judge with respect to self-defence of the accused is totally erroneous, illegal and against the evidence on record. Mr. Soni has submitted that the learned Judge has failed to appreciate the fact that none of the prosecution witnesses or the deceased were armed with any weapon at the time of the incident and it is not the case of the accused that the prosecution witnesses and the deceased were armed with any weapon at the time of the incident. The learned Judge has Page 5 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined failed to appreciate that even under Section 313 of the Cr.P.C., both the accused have not pleaded any right of self- defence before the learned Trial Court.
10. Mr. Soni has further stated that the learned Judge has failed to appreciate that, had the incident happened near the house of the accused, naturally, the family members of the accused persons would have tried to intervene at the time of the incident, but Mr. Soni submitted that the same is not the case of the prosecution. On the contrary, the prosecution case has been fully established by three eye-witnesses including the injured eye-witness.
11. Mr. Soni, learned APP has taken us through the evidence of all the witnesses and more particularly, the evidence of PW3, PW4 and PW8. PW3 is the injured complainant. The prosecution had also examined PW1 - Dr. Mangal who had conducted autopsy of the dead body of the deceased Gani Ibrahim and PW2 - Dr. Hariya had examined PW4 - Amnaben and issued certificate of injury Exh.18.
12. Dr. Hariya is also the person who had medically examined the sisters of accused No.2 - Shakinaben and Zubedaben. The evidence notes as per the history, that she sustained injuries of knife. One injury was in the right hand index finger and another was at the middle finger of the left hand and further, injury on the ring finger of the left hand and injury on the left lip. The Doctor, in his deposition, stated that as per the register, it appears that the police was not informed of the injuries sustained by both the sisters. The Page 6 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined Doctor was confronted with the OPD papers of Zubedaben, wherein he had identified his own handwriting and signature and stated that Zubedaben was given stitches to the injury and on 18.11.1995, those stitches were open. The OPD papers were put in evidence at Exh.23. In the cross-examination of PW9- Martaji Saluji Bidat, who was working as a PSO on 11.11.1995 at Jamnagar City "B" Division Police Station between 13:00 to 21:00 hrs., stated that on that day, Ranjitsinh Nagbha was having his duty at Irvin Hospital and he received one Yadi produced at Exh.32. The Yadi suggested that the Police Inspector, Shri B.K. Charan had taken the complaint and had sent the report for registration. He had, on the basis of the Yadi, recorded the entry. The witness identified handwriting of his entry and the signatures, true copy was produced at Exh.34. As per his deposition, further investigation was handed over to P.I. Shri Charan.
13. The witness in his evidence had stated that station diary entry No.13 in his handwriting was with regard to the injury suffered by Shakinaben by sword and knife and thereafter, entry No.27 is against Abbas Ibrahim and Mamad Ibrahim under CR No.474 of 1995 under Sections 354, 324, 114 of the IPC. He stated that after registering the offence, investigation was handed over to Shri Charan.
14. The learned Sessions Judge has noted that on the basis of the complaint taken by PW10 - Shri B.K. Charan, Police Inspector, City "B" Division Police Station, Jamnagar in Irvin Hospital, Jamnagar, the offence was registered against the accused persons and the investigation was carried out by Shri Page 7 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined Charan, who held the inquest and sent the dead body of Gani Ibrahim for autopsy. Thereafter, he went to the place of offence, collected blood sample, and prepared panchnama at Exh.29. He recorded the statements of the witnesses and discovered the knife used in commission of offence at the instance of the accused persons as per the Panchnama and on completion of the investigation, filed a charge-sheet against the accused persons in the Court of learned Chief Judicial Magistrate, Jamnagar. The case, then was committed to the learned Sessions Court, Jamnagar.
15. The learned Sessions Judge has considered the evidence of the witnesses, PW3 - Abbas Ibrahim, the complainant, PW4
- Amnaben Ibrahim, the injured and PW8 - Ahmed Allarakha. The learned Sessions Judge had noted that the prosecution case was in two parts. First part is in connection with the incident alleged to have taken place at 11:00 a.m. on 11.11.1995, when PW3- complainant - Abbas happened to be on road with TVS moped proceeding towards Jamnagar for purchase of goods for his shop. He has started from his house and when he reached at the place on the road going towards Jamnagar, he saw accused No.2-Razak @ Raju Bachu Bhagad coming from the opposite side. The prosecution case was that Raju questioned the complainant, as to why he was looking at him, so the complainant stopped his Moped and at that time, accused gave him two-three slaps and fist blows and at that time, son of the complainant, namely Jaku and one Ali Harun came there and rescued the complainant. Thereafter, the complainant - PW3 came back at his shop.
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16. The learned Judge noted that this incident at 11:00 a.m. is alleged to be the motive of the second incident. The second part of the prosecution case alleges that after fifteen minutes of the first incident, the brother of PW-3, complainant - Gani Ibrahim was coming with his rickshaw from 'Bedi' side and on the opposite side, both the accused were standing on the road. Accused No.2 stopped the rickshaw of Gani Ibrahim. The deceased came down from the rickshaw, at that time, it was stated that accused No.2 - Razak @ Raju Bachu Bhagad hold the deceased - Gani Ibrahim and accused No.1 took out his knife and gave blow forcefully on the left side of his chest. As a result, he fell down. It was at the time, when accused No.2 caught hold of the deceased - Gani Ibrahim that the complainant came running towards them.
17. The learned Judge has noted that all the three witnesses
- PW3, PW4 and PW8 are closely related to the deceased - Gani Ibrahim. As per the evidence of Shri Charan, Police Inspector, independent witnesses were available and the statements were recorded. However, none were examined by the prosecution. The learned Sessions Judge, thus, observed that the evidence of the close relatives of the deceased are required to be examined with great care and caution.
18. In Singh & Ors. v. State of Punjab, reported in AIR 1965 SC 328, it was observed that in a trial for the offence of murder, where the witness is a close relative of the victim and is shown to share the victim's hostility to his assailant, that makes it necessary for the criminal Courts to examine the Page 9 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts begin with the enquiry, as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If the offence has taken place in front of the house of the victim, the fact that on hearing his shouts, his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the eye witnesses cannot be properly characterised as unlikely. If the criminal Court is satisfied that the witness, who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. On principle, it is difficult to accept the plea that, if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. It cannot be held that such witnesses are no better than accomplices and that their evidence, as a matter of law, must receive corroboration before it is accepted.
19. The evidence of the complainant PW3 - Abbas Ibrahim was examined in context of the first incident, while he was proceeding towards Jamnagar and accused No.2 - Razak @ Raju Bachu Bhagad was coming from the opposite direction questioned him, as to why he was looking at him and when he stopped his vehicle, accused No.2 - Razak @ Raju Bachu Bhagad gave him two-three slaps on face and also fist blow on Page 10 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined abdomen. The evidence of this witness further states that one Ali Harun and Jaku came to rescue him and thereafter, he went to his shop. This evidence was cross-examined and the witness stated that at the time of the incident, he must have gone at the distance of 60-70 ft. from his shop and, as accused No.2 abused him, he got angry, so he stopped his vehicle, put it on the stand and then accused No.2 - Razak @ Raju Bachu Bhagad came near him and assaulted him, who thereafter went towards the house of the accused No.1. In the cross- examination, he further states that since he was beaten by accused No.2, he dropped the idea of going to Jamnagar to purchase goods. He returned to his shop and called his son Jaku, his brother Gani Ibrahim, the deceased and his mother - Amnaben, PW4 at his shop and informed them about the incident. In the cross-examination, he denied the suggestion that all of them had determined to reprimand accused No.2 - Razak @ Raju Bachu Bhagad and therefore, they started to go towards the house of Ibrahim with sword, pipes and knife. He also denied the suggestion put to him that on reaching the house of Ibrahim, his sister Shakina and Zubeda came out of the house and with folded hands, had asked them that "they should not assault them" to resist both of them raised hands, they sustained injures by means of weapons, which were with them.
20. The complainant - witness has denied all the suggestions put to him, while in the cross-examination, he stated that at the time of the incident, there was nobody on the road. The evidence of the witness - complainant, PW3 in respect of the Page 11 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined first incident gets fully corroborated by his statement in his FIR at Exh.42 and that fact of the first incident gets corroborated by the evidence of PW-8, who stated that at about 11:00 a.m, when the incident had taken place, he was at the Pan Shop of Abbas and was standing on the road and according to witness PW8 - Ahmed Allarakha, the complainant
- Abbas Ibrahim was on the road with his TVS Moped and accused No.2 - Razak @ Raju Bachu Bhagad had abused him and had given him two-three slaps and according to that witness, Ali Harun and Jaku Abbas had rescued him. The corroboration is with regard to abuse and the slap and fist blow however, the evidence finds a contradiction with that of the evidence of the complainant, who stated that at the time of the incident, there was nobody on the road. How and under what circumstances, Ali Harun and Jaku came there, is not explained by the complainant - PW3. The incident of slaps given by the accused No.2 - Razak @ Raju Bachu Bhagad to PW3, gets corroborated from the evidence of PW8, but further evidence of the witness becomes doubtful. The first incident, thus, stands proved and under that circumstances, the learned Judge had convicted the accused No.2 for the offence punishable under Section 323 of the IPC for having caused hurt to PW3 - Abbas Ibrahim and made him to suffer simple imprisonment for a period of six months and to pay fine of Rs.5,000/- and in default simple imprisonment for a period of two more months.
21. The learned Judge thereafter, has noted the evidence with regard to the second incident. The defence of the Page 12 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined accused was taken into consideration, where the accused had put up the case that after the alleged first incident, PW3 - Abbas, PW4 - Amnaben, PW8 - Ahmed, Jaku and others united to reprimand accused No.2 - Razak @ Raju Bachu Bhagad and they all proceeded armed with pipes, sword and knifes towards house of accused No.1, while accused No.2 was seen going at the house of Ibrahim by PW3 after the assault. The defence stated that PW3, reached the house of accused No.1, assaulted them and caused injuries to Shakina and Zubeda, sisters of accused No.1 and thus, accused No.1 inflicted knife blow in self-defence.
22. The learned Judge thereafter, analyzed the evidence of the prosecution in connection with the second incident. According to PW3 - Abbas, his brother Gani Ibrahim was coming with his rickshaw towards Madhapur-Bhunga, accused No.2 - Razak @ Raju Bachu Bhagad by raising his hands stopped the rickshaw as deceased - Gani Ibrahim halted his rickshaw, immediately, accused No.2 - Razak @ Raju Bachu Bhagad caught him and dragged him out of the rickshaw. At that time, PW3 rushed there, but prior to that, accused No.1 took out his knife and gave blow on the left side of chest of Gani Ibrahim. The witness stated that the knife blow was given on the road and on receiving the injuries by the knife blow, Gani Ibrahim fell down on tar road and thereafter, he fell in the creek. The case of the prosecution witness was that after giving the knife blow, accused No.1 fled away from the place of incident. The evidence of PW3 suggests that the incident of giving knife blow on the chest of the deceased -
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23. The evidence of PW3, thus, runs contrary to the prosecution case, since the first incident was alleged against accused No.2, while the complainant had never stated anything about accused No.1 being along with accused No.2. What was accused No.1 doing when accused No.2 gave alleged slap and fist blows at 11:00 a.m., PW3 - complainant had also made improvement in his evidence by stating that after the first incident, when he returned back at his shop, he had called Gani Ibrahim, the deceased and his mother PW 4 and Jaku. This very fact of calling Gani Ibrahim along with his mother and Jaku at his shop would run contrary and falsify the prosecution case that Gani Ibrahim was coming along with his rickshaw from 'Bedi' side and was stopped by accused No.2, while accused No.1 had given the knife blow. The presence of the PW4-Amnaben, mother of the deceased was found doubtful at the place of incident. The witness - PW3, the complainant, had denied the suggestion that his mother PW4 - Amnaben when had gone for medical treatment at Irvin Hospital, both the sisters of the accused No.1 were there for the treatment. The evidence of complainant, in the cross-
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24. The learned Sessions Judge has acquitted the accused under Section 302 of IPC materially on three grounds. The main ground, which weighed in the mind of the trial Court Judge is suppression of material facts and non-explanation of injuries caused to two sisters of accused No.1. The origin of incident i.e. the genesis of the prosecution case have found to be suppressed by them. Secondly, the learned Judge found that the place of offence was altered; and thirdly, the learned Judge found the probability of the injury inflicted by the accused No.1 to deceased Gani Ibrahim as a right of private defence.
25. The case of the prosecution was that the incident of murder took place on the tar road, from where the blood was traced. The witnesses, in order to improve the case, said that the sample of the blood stains, which were collected from the Page 15 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined creek was since Gani Ibrahim fell down on the tar road, as a result of knife blow in the chest thereafter, rolled down in the creek. If the evidence of the witnesses of the incident having taken place on the tar road is to be believed, then, there would be no possibility of sisters of accused No.1 - Shakina and Zubeda to have remain present there on the tar road. According to the prosecution witnesses, accused No.1 ran away inflicting single knife blow and accused No.2 also ran away after inflicting knife blow on Amnaben. If that fact is to be believed, then, the prosecution has failed to explain the injury caused to Shakina and Zubeda, which was proved by the deposition of Doctor - PW2 - Dr. Navivnchandra Hariya. The MLC paper of Shakinaben was numbered as 4502/95 and Zubedaben was numbered as No.4503/95, while MLC paper of the deceased Gani Ibrahim was numbered as No.4504/95 and that of Amnaben was numbered as No.4505/95. The prosecution could not explain the evidence of the Doctor regarding the incised wound to Shakina, where the history given to the Doctor was as an assault by sword. Zubedaben had also given the history of knife, she suffered incised wound on fingers. The statement of Police Constable-PW9 has also proved that the complaint was taken of Shakina at the hospital and on the basis of which, the offence under Sections 324, 354 and 111 of the IPC was registered against PW3 - Abbas Ibrahim and Mamad Ibrahim. The investigation was handed over to Mr. Charan - PW10, who was the Investigating Officer of both the matters.
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26. PW10 - Investigating Office - Shri Charan, in his evidence, stated that the Panchnama at Exh.17 was drawn of the place of offence in presence of Panchas and from that place, blood stain soil and controlled sample soil was seized. In the cross-examination, he admitted that in the incident, accused sisters - Shakinaben and Zubedaben were injured. However, in the whole prosecution case, the Investigating Officer has failed to show, as to how, when and where Shakina and Zubeda got injured, though he was entrusted with the complaint of Shakina. Shri Charan Police Inspector could not explain as to what had happened to the case registered against PW3 - Abbas and his brother - Mamad. This is the vital suppression of the material facts of the prosecution. Non- explanation of the injuries to both the sisters is vital and goes to the root of the cause, which has not been explained by the prosecution. The genesis of the offence has been suppressed. Thus, the learned trial court Judge gave benefit of doubt to the accused. The evidence of the PW3 clearly suggests that at the first incident, where accused No.2 - Razak @ Raju had given him slaps and fist blow at the abdomen, at that time, Ali Harun and his son Jaku had come there and rescued him and thereafter, he went towards his shop. Evidence suggests that Ali Harun and complainant's son - Jaku were there with him during the time of first incident. The witness - PW3 has also admitted that during the period between two incidents, his son Jaku and Ali were with him. He further clarifies that after he had gone to the shop, he called his brother Gani Ibrahim and his mother - Amnaben and that he had informed about the incident to all of them. So, when the deceased Gani Ibrahim Page 17 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined was at the shop along with him and others, the prosecution story of deceased Gani Ibrahim coming there on the road with his rickshaw becomes highly improbable.
27. The complainant witness states that, when he was at the scene of offence, the rickshaw of Gani Ibrahim was at a distance of 700-800 ft. He had seen both the accused on the road. He further clarified that according to him, from the time he was abused and slapped, both the accused were standing there and he saw the same from his shop for about 15 minutes. Thus, this evidence runs contrary to the prosecution case that after the first incident, accused No.2 - Razak @ Raju proceeded to go to accused No.1 Ibrahim's house. The witness stated that the second incident was because of the first incident, which had occurred with him. He further stated that Ibrahim - accused No.1, after giving blow, ran away from the place, while Raju waited there. He further stated that Raju had not given any blow to Gani Ibrahim. He stated that Raju thereafter, assaulted him and as his mother intervened, she got injured. The complainant was confronted in the cross- examination and he stated that if one approach from Jamnagar route, house of accused - Ibrahim Daud would be on southern side. He further clarified that the house was not adjacent to the road, but was at a distance of 100 ft. in the creek. He denied that the incident has taken place in the creek and also denied the suggestion of the blood stains found from the creek. He stated that the police had collected blood from the road as well as the creek, but denied the suggestion that the police has collected blood at a distance from 45 ft.
Page 18 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined from the accused's house. He stated clarifying that there was slope on the southern side of the road and Gani Ibrahim had fallen down from the slope in the creek.
28. The mother - Amnaben - PW4 stated that she was at the street when she came to know about the incident between accused No.2 and the complainant. Therefore, she went to the bus stand from where she saw Gani Ibrahim coming in the rickshaw. At that time, she saw both the accused standing there. When she saw accused No.2 Raju dragging Gani Ibrahim out from the rickshaw and accused No.1 giving the knife blow to Gani Ibrahim, she shouted and asked Abbasbhai to run. Corroborating the evidence of the complainant, who is her son, she stated that thereafter, Abbu ran away and Raju went forward to give blow to Abbas, she intervened, and therefore, she received knife blow at the left hand. In the cross-examination, the witness stated that her son had not informed her about the earlier incident, but she met her son at the shop to advise him, as to why he was raising quarrel. She stated that at the shop, they were Abbas, Mamad, she herself and brother-in-law Ahmed Allarakha. This evidence proves, corroborated with the evidence of Abbas, that prior to the murder of Gani Ibrahim, all of these people had gathered at the shop of Abbas. She denied the suggestion that from the road, Gani Ibrahim was picked up and put in rickshaw. She stated that Gani Ibrahim had fallen down from the slope in the creek. She affirmed that place of incident is near to accused - Abbas's house and far from Abbas's shop. She further clarified affirming that she had not informed police that on the day of Page 19 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined the incident, she was standing at the bus stand for purchase of goods.
29. The evidence of the witness mother with that of the complainant who is the son proves the fact that they had gathered at the shop of Abbas, while the incident had taken place near the house of accused no.1. Blood stain was even collected from the creek. This fact proves that the witnesses are hiding the material facts. There is some fact, which is different from what has been put forward by the prosecution. The Investigating Officer - Shri Charan was having the knowledge of that fact which the witnesses were trying to suppress from the Court. Investigating Officer - Shri Charan was entrusted with the investigation of both the complaints. The complaint of Shakina had not found any clarification from the prosecution witnesses regarding the injuries suffered by the sisters of the accused no.1. It appear that the deliberate attempt has been made to suppress the true fact. The reason behind the incident has been suppressed.
30. In the case of Bhagwan Sahai and Anr. Vs State of Rajasthan, (2016) 13 SCC 171, it was held as under:-
"8. .. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants."
31. The facts, as could be noticed from the evidence of the complainant and the mother - PW4 and PW8 - Ahmed Allarakha, who is the cousin of the complainant. All have created a turmoil in Page 20 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined their evidence. They could not clarify why Ali Harun and Jaku Abbas were present at the time of first incident and though accused No.2 - Raju, after the incident proceeded towards the house of accused No.1 - Ibrahim, while at that time, complainant, complainant's mother (PW4) and Ali Harun and Jaku Abbas and Mamad were at the shop of the complainant - Abbas. The story of the deceased falling down in the creek from the tar road does not get corroborated from the alleged place of the tar place. How and when the deceased went down in the creek has not been explained by any of the witnesses, coupled with the fact that the creek is near to the place of accused No.1's house in addition to the fact that prosecution witnesses failed to explain the injuries sustained by the sisters of accused No.1.
32. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs State of Maharashtra, (2010) 13 SCC 657, the Hon'ble Supreme Court has held as under:
"37. ........ Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
38. It is a well-established principle of law, consistently re- iterated and followed by this Court is that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching Page 21 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined the demeanour of the witnesses is the best judge of the credibility of the witnesses.
39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.
40. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. "
33. The trial Court Judge rightly observed that the genesis of case has been suppressed. There is vital suppression of material facts. There is no explanation coming forth about the injures suffered by both of the sisters of the accused. Shakina had incised wound on her left hand, who had given history of assault by sword. Zubeda had given history of injuries by knife. She had incised wound above middle finger of right hand and middle finger of left hand and also over ring finger of left hand. There is no clarification of blood sample collected from the creek near to the house of accused No.1. The place of offence does not appear to be at the tar road. The evidence on record suggests that the place of offence is not the one, as portrayed by the prosecution witnesses. Thus, the conclusion Page 22 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined of learned Judge to that effect is proper. No stronger evidence could be shown to take a different view from that of the trial court. It appears that prosecution deliberately and intentionally changed the place of actual incident from creek to road, so as to show that the complainant party had not gone with the weapons, as alleged by the defence to make assault on the accused No.2 at the house of accused No.1, thus, on that ground too, the prosecution case becomes doubtful.
34. According to the prosecution, the first incident was the motive behind the second incident in which Gani was done to death while according to the defence, after the first incident, (PW-3) the complainant, (PW-4) Amnaben, (PW-8) Ahmed - son of the complaint Jaku, had united to reprimand accused No.2 Raju, so they all proceeded with arms like sword, pipes, knife towards the house of accused No.1. The defence put up was that all of them had assaulted and caused injuries to Shakina and Zubeda, the Sisters of accused No.1. A blink attempt has been made to show that accused number one had inflicted the knife blow in self-defence. These facts are also given by accused in their statement under Section 313 of Cr.P.C. Now let us examine, whether benefit of self-defence can be given to accused No.1 for the injuries sustained by his sisters.
35. In the case of Darshan Singh Vs. State of Punjab & Anr., reported in (2010) 1 S.C.R. 642, held as under:
"In order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether, the apprehension was reasonable or not is a question of fact depending upon the facts Page 23 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not? [Para 23] The right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit of lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property. [Para 29] The following principles of right to private defence emerge on scrutiny of the relevant judgments:
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) Even if the accused does not plead self-defence, it is Page 24 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The IPC confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. [Para 58]"
36. Dr Harimohan Mangal's evidence (PW-1) regarding the postmortem of deceased Gani, refers to one stab wound of 10x4.5 c.m. on the left side of the chest, entered the heart upto 4 c.m. The evidence on record proves that Gani died as a result of the injury caused by accused No.1 by means of knife. Such injury is defended, as caused by way of self- defence. It is the case of accused that the referred witnesses and deceased along with others armed with weapons had come at the house of accused No.1 in the creek. Both the sisters of accused No.1 suffered incise wounds and thus, on apprehension of death accused No.1 inflicted knife blow on Gani, which turned fatal.
37. Section 97 of the IPC gives every person right subject to the restrictions contained in Section 99 to defend his own body and the body of any other person against any offence affecting the human body.
38. It is noted in the case of Yogendra Morarji versus State of Gujarat, reported in (1980) 2 SCC 218 that the right of private defence are governed by certain principles in Page 25 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined the Code such as the right of self-defence is not available against an act, which is not an offence within the code. This right commences immediately on apprehension of danger, this is a defensive right, which is neither retributive nor punitive , this extents up to killing of actual aggression only, it extends whether there is no other safety, this is purely a defensive right.
39. As laid in the case of Darshan Singh (Supra), right of private defence is available only to one, who is suddenly confronted with the necessity of averting an impending danger and not of self creation. A reasonable apprehension is enough to put the right of self-defence into operation. If the accused apprehended that such offence is contemplated and is likely to be committed, if the right of private defence is not exercised. It has been observed in the judgment that even if accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. The accused need not prove the existence of right of private defence beyond reasonable doubt.
40. If the prosecution story of incident taking place on the tar road is to be believed, then there would not be any possibility of injuries to Sakina and Zubeda, as prosecution case does not say about the presence of both sisters there. While it comes on record that after the first incident accused No. 2 - Raju had gone towards house of accused No.1. Further, it has also come on record that the complainant, his son Jaku, the complainant's mother and Aali Haroon and Page 26 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined (PW8) Amad Allah Rakha had gathered at complainant's shop. The bloodstains were collected from the creek, from the place which was near to the house of accused No 1.These all facts are proved on record. It is noted in the case of Darshan Singh (Supra) that even if the plea of self-defence is not raised, the court is empowered to consider such a plea if the same arises from the facts and evidence on record. The learned trial court judge found probable the defence theory that the complainant party had come at the house of the accused No.1, where Abbas had seen accused No.1 running away after the incident of beating him. The people, who gathered at the shop were all relatives and with sword, pipes and knife had gone to the house of accused No.1, two ladies came out of the house and requested them not to make assault and they sustained injuries. This appears to be quite probable. The admitted fact of deceased Gani taken in a rickshaw from the route to the Hospital was considered by the trial Court in the aspect that Gani must have been brought up on the road from the creek in order to carry him in a rickshaw, while bringing him up on the road and putting him in rickshaw they must have put Ghani in injured condition on the road and therefore, blood must have been found on the road. Dr Mangal in the last line in his evidence, in cross examination, says that there would be profuse bleeding immediately on receiving such a blow. Learned Judge considered this evidence to be clear to suggest that Gani after receiving knife injury must have fallen down, as said by the witnesses and the blood was therefore, found in the creek where he must have fallen down. Thus, learned Judge came to Page 27 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025 NEUTRAL CITATION R/CR.A/1046/1997 JUDGMENT DATED: 24/04/2025 undefined the conclusion that the prosecution appears to have deliberately and intentionally change the place of actual incident from the creek to road so as to show that the complainant party had not gone with the weapons, as alleged by the defence to make assault on the accused at the house of accused No. 1.
41. Reasoning given by the learned trial Court judge is consistent to the evidence on record, there is no infirmity in the analysis of the evidence, the evidence has been appreciated in accordance to the principles of law propounded by the Hon'ble Supreme Court. We do not find any reason to upset the judgment of the trial Court . The appeal fails merits.
42. In the result the present appeal is dismissed. Record & Proceedings be sent back to the concerned Trial Court forthwith.
(A. S. SUPEHIA, J) (GITA GOPI,J) PankajMaulik Page 28 of 28 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Apr 30 2025 Downloaded on : Wed Apr 30 21:52:39 IST 2025