Gujarat High Court
State Of Gujarat vs Mehbub Bhikhabhai Qureshi on 20 October, 2022
Author: S.H.Vora
Bench: S.H.Vora, Rajendra M. Sareen
R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 390 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================
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 or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
MEHBUB BHIKHABHAI QURESHI
==========================================================
Appearance:
MS CM SHAH APP for the Appellant(s) No. 1
MS SHUBHA B TRIPATHI(5597) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 20/10/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN) Page 1 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022
1. Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 28/01/1997 passed by the learned Sessions Judge, Vadodara in Sessions Case No.54 of 1996 acquitting the respondent original accused from the offence punishable under section 302 of Indian Penal Code.
2. The crux of the case of the prosecution is as under:-
Complainant Ahmed-Hussain Bhikhumiya Malek, resident of Kalyannagar, Kamatibaug, Vadodara is working as a watchman in Jyoti Limited Company. He has six sons and two daughters out of which marriage of elder daughter - Abeda was performed before four years with Maheboobmiya Bhikhumiya Kureshi, resident of Village Gorva. Maheboobmiya has one earlier wife also. Prior to two years from the date of incident, daughter of the complainant Abeda and her husband were residing in a hut near their house in Kalyannagar Tekara. Out of the wedlock of the daughter of the complainant and Maheboobmiya, one daughter has born whose name is Taslim. Since the Abeda has not delivered son child, Maheboobmiya frequently quarrel with her and was taunting and in drunken condition, he was also beating his daughter Abeda.
It is alleged that on the day of the incident at 8 O'clock Page 2 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 at night, the complainant was present at his house with his family members and at that time, her daughter Abeda had come rushing to his house in naked condition and with severe burns on her body and was shouting that where is her Munni and hence she was made to sleep in the house. After sometime, elder brother of the complainant - took the Abeda in SSG Hospital and during that time, on inquiry, Abeda informed him that her husband in drunken condition was quarreling with her saying that she is not delivering boy child and he was abusing her and hence, she poured kerosene on her body and threatened to set at fire herself and at that time, her husband - accused herein lighted the match-box and throw it on her and hence she has sustained burn injuries. Therefore, the complainant lodged the complaint ion 1/12/1994.
3. On the basis of the said complaint, investigation was started, statement of witnesses were recorded, inquest panchnama was carried out, panchnama of scene of offence was carried out, postmortem report was obtained and after through investigation, as there was sufficient evidence against the respondent - accused, Chargesheet was filed in the court of learned Chief Judicial Magistrate. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the Page 3 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 case was transferred and placed for trial in the court of learned Sessions Judge, which has been numbered as Sessions Case No.54 of 1996. Thereafter, Charge was framed against the accused for the offence punishable under section 302 of Indian Penal Code. The accused pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. After the evidence was over, Further Statement of the accused were recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned Sessions Judge was pleased to acquit the accused for the charge levelled against him. Hence, the appellant - State of Gujarat has preferred the present Criminal Appeal challenging the judgement and order of acquittal.
4. Heard Ms.C.M. Shah, learned APP for the State and Ms.Shubha Tripathi, learned advocate for the surviving respondent accused.
5. Mr.C.M. Shah, learned APP has vehemently submitted that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. She has further submitted that the Sessions Court has erred in acquitting the respondent - accused from the charges levelled against him. She has further argued that the prosecution has proved that the respondent has Page 4 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 committed offence under section 302 of Indian Penal Code. She has further argued that Sessions Court has acquitted the respondent merely on some minor contradictions and omissions in the evidence of the witnesses. She has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. She has further argued that the offence punishable under section 302 of Indian Penal Code, is made out against the respondent, however, the same is not believed by the Sessions Court. She has further argued that though the prosecution witness has supported the case of the prosecution, the trial court not believed their evidence and acquitted the respondent - accused erroneously. She has requested to allow the present appeal.
5. Ms.Shubha Tripathi, learned advocate for the respondent - original accused has submitted that there is hardly any substance in the submissions of learned APP. There is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the respondent No.1 beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the Page 5 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 present appeal.
6. Heard advocates for the respective parties and perused the impugned judgement and order of acquittal and re- appreciated the entire evidence on record.
7. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.
8. On re-appreciation of the evidence on record, it appears that the case of the prosecution rests on dying declarations, oral as well as written. The complainant has lodged the complaint Ex.32 making allegation that her daughter had come to her house in naked and burnt condition and she said that her husband has burnt her.
Page 6 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 However, the complainant has not supported the case of the prosecution. Even other witnesses have also not supported their statement recorded by the police. Thus, the oral dying declaration of the deceased is not proved by the prosecution.
9. As per the case of the prosecution, written dying declaration of the deceased has been recorded twice and one which is recorded by the Doctor Naranbhai Parmar of Sayaji Hospital - Ex.18 wherein the deceased has stated that she has burnt herself. Another written dying declaration is recorded by the Executive Magistrate - Ex.29, however, the Executive Magistrate in his cross-examination has admitted that he had not inquired from the doctor whether the patient is conscious or not and there is no such endorsement in the dying declaration Ex.29. Thus, the certificate to the effect that the deceased being conscious was not obtained and therefore, the same cannot be relied upon.
10. Prior to lodgement of the complainant, the deceased was admitted in Sayaji Hospital where the duty constable was informed about the incident and same was sent to the Sayaji-Ganj Police Station, which is produced at Ex.24, wherein the deceased has stated that due to dispute with her husband, in aggression she poured kerosene on herself and set herself at fire and one Mr.Safi Mohammad Page 7 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 Ahmedmiya Malek has took her for treatment but the said Mr.Safi Mohammad Ahmedmiya Malek is not examined in this case. Thus, it is clear that the deceased herself has set herself at fire. Meaning thereby the deceased has committed suicide. Had there been the offence as alleged, that the husband of the deceased had set the deceased at fire, the deceased could have stated so in the Vardhi Ex.24. In short, the incident is of suicide.
11. It is cardinal principle of law that when a case solely rests upon the dying declaration and if the dying declaration is found to be voluntary and free from the shadow of doubt and supported by the independent witnesses, conviction can be based solely upon the dying declaration of the deceased also.
Here in this case, there are three dying declarations made by the deceased. One at the first instance when the deceased was taken to hospital by her father. The deceased in the history recorded before the doctor has stated regarding self-immolation.
It is also pertinent to note that the deceased was taken by her father and there was an oral declaration before her father prior to taking her in the hospital. So, there was no any kind of manipulation in the history before the Doctor.
The first oral declaration before the father is not proved as the father who is complainant has turned hostile and has specifically stated that there was no harassment to Page 8 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 his daughter by the accused and the marriage life was cordial. As such the oral declaration before the complainant and declaration by the deceased herself before the Doctor are contradictory to each other and thereafter, after sometime, she has stated facts against the present respondent - accused in the dying declaration recorded by the Executive Magistrate, which is contrary to the history given before the Doctor.
As stated above, the Executive Magistrate has not recorded any kind of endorsement regarding consciousness of the patient and mental status of the patient before recording the dying declaration.
As such, dying declaration recorded by the Executive Magistrate cannot be solely relied upon as there are inconsistency, one before the father and second before the Doctor. The entire version of the prosecution comes under the shadow of doubt. And thirdly, as stated above, the Vardhi which was sent by the Police Constable from Sayaji Hospital also reveals self-immolation by the deceased. Under the circumstances, the dying declaration though can be the sole criteria for the conviction, are doubtful, not reliable and inconsistent with each other and not supported by any independent witness, and hence the same are not free from the shadow of doubt.
12. The law settled by the Hon'ble Supreme Court on the issue of dying declaration is as under :-
Page 9 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Mannu Raja Vs. State of U.P. reported in AIR 1976 SC 2199).
(ii) If the Court is satisfied that dying declaration is true and voluntary, it can base conviction on it without corroboration (State of UP Vs. Ram Sagar Yadav, AIR 1985 SC 416, Ramavati Devi Vs. State of Bihar, AIR 1983 SC 164).
(iii) Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, promoting or imagination.
The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration (Ram Chandra Reddy vs. Public Prosecutor, AIR 1976 SC 1994).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg Vs. State of Madhya Pradesh, 1974 S.C. (4) 264).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath Vs. State of UP 1981 SC (Cri) 581).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to Page 10 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 be rejected (State of Maharashtra Vs. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).
(viii) Equally merely because it is a brief statement, it is not to be discarded. On the contrary the shortness of the statement itself guarantees truth (Surajdeo Ozaa vs. State of Bihar, AIR 1979 SC.1505).
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look upto the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail (Nanahau Ram Vs. State, AIR 1988 S.C. 912).
(x) where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon (State of UP Vs. Madan Mohan AIR 1989 SC 1519).
(xi) Where there are more than one statemenet in the nature of dying declaration, one first in point of time must be preferred (Mohanbhai Vs. State of Maharashtra, AIR 1982 SC 839).
(xii) If the court is satisfied about the truth of the statement, without any corroboration, the sole declaraetiion may form the basis of conviction, even if the same is not question and answer form in Page 11 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 proper cases, conviction may rest on it (Padmaben Shamalbhai Patel Vs. State of Gujarat XXXII (I) GLR
557).
(xiii) Necessity of admitting a dying declaratiion reasons for relying upon it Rule of prudence and not rule of law requires that the Court must be satisfied thaet the statement should be relied upon (Smt. Paniben Vs. State of Gujarat XXXIV (2) GLR 985).
13. In the case of Ajit Kumar Somnath Pandya Versus State of Gujarat in 1992 GLH 515, it is observed and held as under :-
"While appreciating the evidence of the witnesses in any criminal trial, no Court can ever offerd to ignore taking into consideration the other equally important side of the picture, if it is so clearly probablised in cross examination of the witnesses and brought on record. If under such circumstances, when the evidence of any such witness is ultimately found to be susceptible to two reasonable inference, the baffling question that would obviously arise is to where lies the truth. Does it lie in the allegation levelled by the complainant against the appellant ? or Does it lie in the allegation probabalised by the appellant against the complainant ? Thus, when the court finds itself on borns of dilemma or at cross roads and feels embarrassed as to find out the way where Page 12 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 lies the truth, the rough and ready and obvious manage given by the criminal jurisprudence as to abandon the exercise in futility in search of truth and better give the benefit of doubt to the accused by way of abundant caution."
14. As per settled legal position, where there are two reasonable or probable conclusions, one consistent with the innocence of the accused and the other with his guilt, the one that is consistent with his innocence should be adopted.
15. The Hon'ble Supreme Court in the case of Sharad Birdhichand Sharda Versus State of Maharashtra, reported in AIR SC 1984 page 1622 has observed and held as under :-
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and other which benefit an accused, the accused is undoubtedly entitled to the benefit of doubt."
16. Considering the entire evidence on record oral as well as documentary, we are of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgement delivered by the Sessions Judge is sound on the aspect of law and facts.
Page 13 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.
17. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court.Page 14 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022
R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if 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. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of Page 15 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
Page 16 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 "Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in Page 17 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 law."
18. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
19. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;Page 18 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022
R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 (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', 'very strong circumstances', '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 emphasize 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.
(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 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 Page 19 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022 R/CR.A/390/1997 CAV JUDGMENT DATED: 20/10/2022 trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
20. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
21. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed.
(S.H.VORA, J) (RAJENDRA M. SAREEN,J) R.H. PARMAR Page 20 of 20 Downloaded on : Thu Oct 20 20:54:27 IST 2022