Gujarat High Court
State Of Gujarat vs Muman Selia Abdulbhai Ibrahimbhai on 16 May, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 848 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MUMAN SELIA ABDULBHAI IBRAHIMBHAI
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Appearance:
MS SHRUTI PATHAK, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MRS REKHA H KAPADIA(2246) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 16/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 22.06.1998 passed by the learned Sessions Judge, Banaskantha @ Palanpur in Sessions Case No.125 of 1990, whereby the respondents accused came to be acquitted for the offences under section 307 read with section Page 1 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined 135 of Bombay Police Act, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. Brief facts of the case are that the complainant namely Bhikhaji Mulaji, R/o Chhapi, lodged a complaint with the police on 15/11/1989. According to the complaint, when he was standing in front of his home in the afternoon on that day, upon hearing the outcry near Mumans' houses at about 02:30 hours, he rushed there. He saw that his son, namely Mohan, was lying there smeared in blood. He sustained injuries in his left side, and was bleeding. Harijan Moti Nanji, R/o Majadar was lying beside him in blood-smeared condition. He sustained injuries in his private part. The complainant's son, namely Mohan, told him at that time that Muman's son stabbed him and ran away in the Mumanvas. Thereafter, Moti Dhuda and Godadji Mulaji, etc. rushed there, and took him to the hospital. Patel Dalsang Kanji sustained stone injury at that time, and subsequently, they registered the complaint with Chhapi Police Station.
3. In pursuance of the complaint lodged by the complainant with the Chhapi Police Station for the offence under sections 307 of IPC and section 135 of Bombay Police Act, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC Page 2 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined concerned. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Banaskantha at Palanpur as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Banaskantha at Palanpur, learned Sessions Judge framed charge at Exh.5 against the respondent accused for the aforesaid offences. The respondent accused pleaded not guilty and claimed to be tried. The respondent accused pleaded not guilty and claimed to be tried. During the course of trial, the prosecution has examined in all 13 witnesses. The details of the aforesaid evidence led by the prosecution is reproduced in the tabular form as under :-
~:: Oral Evidence ::~ Sr. no. Particular Exh.
1. Bhikabhai Mulabhai -PW-1 9 2. Mohanbhai Bhikabhai - PW-2 11 3. Hamidaben Ishmailbhai - PW-3 12 4. Hamsadben Abudlbhai- PW-4 13 5. Lalabhai Ratanbhai - PW-5 16 6. Godagji Mulaji -PW-6 18 7. Motibhai Parma - PW-7 19 8. Babudan Gadhvi - PW-8 20 9. Kishan Solanki - PW-9 22 10. Gudabhai Ranchodbhai PW-10 29 11 Karsanbhai Jilabhai - PW-11 33 12 Bhavanji Rabari - PW-12 38 13 Dr. Kusamchandra Purohit - PW -13 51 Page 3 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined ~:: Documentary Evidence ::~ Sr. no. Particular Exh. 1. Complaint 10 2. Panchanama of place of incident 15 3. Map of scene of offence 21 4. Medical certificate 24 5 FIR 31 6 Letter of FSL and report 43 7 Notification of DM, Banaskantha 44
5. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondents accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them.
6. We have heard learned APP Ms. Shruti Pathak for the appellant - State and minutely examined oral and documentary evidence adduced before the learned Sessions Court.
7. Learned APP Ms.Shruti Pathak for the appellant - State would submit that learned Sessions Court committed error in acquitting the respondents. In support of her submission, Page 4 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined learned APP has relied on deposition of Hamidaben at Exh.12, deposition of Lalabhai at Exh.16, deposition of Motibhai at Exh.18. Learned APP also relied on panchnama drawn at Exh.15 and FSL report at Exh.43. It is submitted that learned Competent Court has committed error in not considering deposition of prosecution witnesses and documentary evidence produced on record. It is further submitted that the prosecution witnesses have fully supported the case of the prosecution and they have narrated role of the accused person. She has further submitted that learned Trial Judge has committed error in disbelieving and discarding the evidence of these witnesses and therefore, impugned judgment and order of acquittal may be quashed and set aside.
8. Heard learned APP for the appellant - State and we have considered the deposition of witnesses as also documentary evidence placed on record. We have considered deposition of Dr. Kishan Solanki at Exh.22. As per his deposition, injured was brought to hospital for treatment; he further states that there was wound of stabbing below armpit on the left side of chest and as per deposition of another Doctor viz. Dr.Kumudchand Purhohit at Exh.51, injured was wounded by sharp long weapon at the lower part of left side of chest. On reading the said deposition, it appears that the wound was not below armpit.
Thus, two Doctors have given different version regarding injury of wound of particular person. Hence, injury on injured becomes doubt. We have also considered the statement made by the panch witness, Karshan Zala. In his deposition under Exhibit No. 33, he was called upon at the scene of the incident Page 5 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined on the day of the day of incident at 09:00 pm to act as a panch; and as per his statement, Hamidaben produced a knife and a shirt. As per his statement, he was called to act as a panch at the scene of incident, Mumanvas, at 06:30 am the next day. The earlier panch, namely Dhanrajbhai, was there as another panch. The scene of the offence was shown by Dharmiben, who has not been examined as the witness in this case. The panchnama has been drawn of the scene as indicated by Dharmiben, who is not an eye-witness to the incident. The panch witnesses of both the panchnama are the same. In view of the said circumstances, the depositions of the panch witnesses cannot be considered valid. The inquiry officer of the offence, while drawing the panchnama of the scene of incident and the seizure of muddamal viz. clothes and knife included the same witnesses. Therefore, his investigation proceeding also becomes suspicious. Further, as per the statements of both the injured witnesses, particularly, Dharmiben was present there. As per the statement of the witness, namely Godad Mula, who is a complainant's brother, and Bhikha Mula, who is a complainant, Dharmiben informed them about the incident. However, Dharmiben has not appeared and therefore, she has not been examined. In these circumstances, when she is not an eye-witness to the incident, there remains no importance of her evidences, when the panchnama was drawn of the scene shown by her, including the same witnesses. Furthermore, the other panch in this case, namely Dhanrajbhai Virajibhai, has not been examined. Therefore, the evidence of the witness, namely Karshan Zala, cannot be termed trustworthy under the above circumstances. It appears that the police has not conducted fair investigation. It creates suspicion over the investigation.
Page 6 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined
9. It appears that Muddamal clothes, knife, etc. in this case have been sent to the F.S.L. for investigation; report of which has been produced at Exhibit No. 43. As per the report, the open shirt, pants was having blood group 'O'. However, it has not been proved that the clothes belong to the accused. Further, the prosecution has also not proved that the blood with the said blood group was of the injured. No blood stain was found on muddamal knife. In view of this fact, prosecution has failed to prove case against the accused. Prosecution has produced Notification of Prohibition of Arms, issued by the District Magistrate at Exhibit No. 44 and said notification was in force at the time of incident. However, it is not proved that the accused made a public appearance with a knife. In such circumstances, it is not proved that the accused in this case attempted to murder the injured, namely Mohan Bhikha and Moti Nanji, by causing serious injuries through stabbing with an intention to kill them. In totality case of the prosecution is not believed by learned Sessions Court.
10. To arrive at final conclusion, we deem it proper to reproduce para 10 to 12 of the impugned judgment, which reads as under (it is in Gujarati language, for better understanding it is translated in English) :-
"10. Dr. Kishan Ramjibhai Solanki from Palanpur is examined in this case under Exhibit No. 22. As per his deposition, when he was discharging the duties as a Medical Officer at the Civil Hospital, Palanpur on 15/11/1989, Mohan Bhikha was brought in for the treatment along with the yaadi of the P.S.O., Chhapi; he was stabbed in the left side. The said police yaadi is Page 7 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined submitted under Exhibit No. 23. Upon examining him, the doctor says that there was a wound of stabbing below the armpit on the left side of the chest near the center line. As per the deposition of the doctor from Ahmedabad, namely Kumudchand Purohit, under Exhibit No. 51, the same witness was given further treatment at Ahmedabad. According to him, Mohan Bhikha was wounded by a sharp, long weapon at the lower part of the left side of the chest; beneath the ninth rib. This implies that the wound was not below the armpit. Thus, two doctors are giving different evidences regarding injury of a wound of a particular person. Hence, Mohan Bhikha's injury also becomes suspicious. That is, the suspicion may arise as to whether the said injury was suffered at the time of performing the treatment of operation. The witness, Dr. Kishan Rajmibhai Solanki, further stated that he also examined Moti Nanji. As per his statement, his mouth was stinking like alcohol. This fact supports the deposition of Asamadben, the wife of the accused. Because, as per her statement, persons under the influence of alcohol were grabbing her burqa. Therefore, it is possible that Mohanbhai, Motibhai and Lalabhai were roaming around under the influence of alcohol, and some Muman might have seen the incident of grabbing Asamadben's burqa, which resulted into stabbing. However, based on this reasoning, it cannot be implied from other evidences that the accused stabbed the victim. The deposition of the witness- doctor, supports the fact that both the injured had sustained injuries. However, it cannot be made clear from the doctor's deposition as to who caused these injuries.
11. As per the deposition of the witness, Dhudabhai Ranchhodbhai, P.S.O., under Exhibit No. 29; Mr. B.D. Rabari, P.S.I. instructed to register the complaint. Hence, he registered the complaint and took cognizance of the offence. He does not know anything more. As per the facts of the complaint, there is no evidence against the accused.
12. As per the statement made by the panch witness, Karshan Zala, in his deposition under Exhibit No. 33, he was called upon at the scene of the incident on the day of the day of incident at 09:00 pm to act as a panch; and as per his statement, Hamidaben produced a knife and a Page 8 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined shirt. As per his statement, he was called to act as a panch at the scene of incident, Mumanvas, at 06:30 am the next day. The earlier panch, namely Dhanrajbhai, was there as another panch. The scene of the offence was shown by Dharmiben, who has not been examined as the witness in this case. The panchnama has been drawn of the scene as indicated by Dharmiben, who is not an eye-witness to the incident. The panch witnesses of both the panchnama are the same. The evidence of the injured witnesses of the prosecution is wrong. In view of the said circumstances, the depositions of the panch witnesses cannot be considered valid. Moreover, the inquiry officer of the offence, while drawing the panchnama of the scene of incident and that of the seizure of muddamal clothes and knife included the same witnesses. Therefore, his investigation proceeding also becomes suspicious. Further, as per the statements of both the injured witnesses, particularly, Dharmiben was present there. As per the statement of the witness, namely Godad Mula, who is a complainant's brother, and Bhikha Mula, who is a complainant, Dharmiben informed them about the incident. However, Dharmiben has not appeared for providing the evidence. She has not been examined. In these circumstances, when she is not an eye-witness to the incident, there remains no importance of her evidences, when the panchnama was drawn of the scene shown by her, including the same witnesses. Furthermore, the other panch in this case, namely Dhanrajbhai Virajibhai, has not been examined. Therefore, the evidence of the witness, namely Karshan Zala, cannot be termed trustworthy under the above circumstances. Had the police wished for conducting fair investigation, they would have managed to have other neutral panchas for the scene of incident. The Mumanvas is adjacent; and the vicinity includes Bhilvas, Patelvas, and grocery shops. This also creates suspicion over the investigation.
13. Muddamal clothes, knife, etc. in this case have been sent to the F.S.L. for investigation; report of which has been submitted under Exhibit No. 43. As per the report, the open shirt, pants, and shirt bear the human blood with blood group 'O'. However, it has not been proved that the clothes belong to the accused. Moreover, the Prosecution Page 9 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined has also not proved that the blood with the said blood group was of the injured. Further, no blood was found on muddamal knife. In view of this fact, F.S.L. evidence also cannot be said to be against the accused. The inquiry officer of the offence has submitted a Notification of Prohibition of Arms, issued by the District Magistrate, under Exhibit No. 44. On perusal of it, it appears that the said notification was in force at the time of incident. However, it is not proved that the accused made a public appearance being armed with a knife. Hence, it cannot be believed that the knife was borne in public. Therefore, in view of such circumstances, it is not proved that the accused in this case attempted to murder the injured, namely Mohan Bhikha and Moti Nanji, by causing serious injuries through stabbing with an intention to kill them. Moreover, it is also not proved that they violated the Notification of Prohibition of Arms, issued by the District Magistrate. Hence, I hold Point No. 1 in the Negative."
11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. In the instant case, the learned APP for the applicant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
12. In the case of Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat [2024 INSC 295], Hon'ble Supreme Court has held as under :-
"6. It is true that while deciding an appeal against Page 10 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025 NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.Page 11 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025
NEUTRAL CITATION R/CR.A/848/1998 JUDGMENT DATED: 16/05/2025 undefined
13. It is to be observed that 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.
14. 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.
15. In view of the above and for the reasons stated above, present Criminal Appeal deserves to be dismissed and is accordingly dismissed.
(VAIBHAVI D. NANAVATI,J) (R. T. VACHHANI, J) SATISH Page 12 of 12 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jun 10 2025 Downloaded on : Fri Jun 13 21:52:50 IST 2025