Allarakha
K. Mansuri Vs. State of Gujarat [2002] Insc 78 (14 February 2002)
R.P.
Sethi & K.G. Balakrishnan Sethi,J.
The
appellant was charged for the offences punishable under Sections 302 and 504
read with Section 114 of the Indian Penal Code in Sessions Case No.57 of 1989
and after trial was acquitted by the learned Sessions Judge on 11.9.1990. The
appeal filed against the judgment of acquittal was allowed by the High Court
vide judgment impugned in this appeal holding the appellant guilty for the
commission of offence punishable under Section 302 of the Indian Penal Code and
sentencing him to undergo rigorous imprisonment for life and to pay a fine of
Rs.5,000/- In default of payment of fine, the appellant has to undergo further
rigorous imprisonment for three years.
The
facts of the case are that on 27th March, 1989
at about 7.30 p.m., the appellant along with Ramji Khamisa
Mansuri went to the Tea Stall of the deceased armed with Dharia. He inflicted
four blows to the deceased with that Dharia, as a result of which deceased
Abdul Karim Ali Mohamed sustained serious injuries on head and other portions
of his body. He was shifted to the Hospital but he succumbed to the injuries.
At about 7.45 p.m. a message was received at Police
Station Bhachau from the Medical Hospital stating that Abdul Karim Ali Mohamed who has been brought
to the Hospital had sustained serious injuries and was being shifted to Bhuj Civil Hospital. The intimation was recorded as
Crime Entry No.20 of 1989 in the Police Station diary. Thereafter the statement
of Ali Mohmed was recorded in the police station and the FIR registered which
was marked as Exhibit 30. On completion of the investigation, charge sheet was
filed against the accused persons. The prosecution examined 10 witnesses. Ali Mohdmed
Husein (PW4), complainant, Rajesh Velji (PW5), Shashikant (PW6) and Mamudo @ Abdulla
(PW9)were cited eye-witnesses. As Rajesh Velji (PW5) did not fully support the
case of the prosecution, he was declared hostile. The trial court discarded the
testimony of the eye-witnesses and acquitted the accused. It appears that the
trial court mainly relied upon the following aspects for acquitting the accused
persons:
"i)
That Exh.36, entry No.20/1989 in the police station diary which came to be
recorded on the information given by the medical officer of Bhachau Hospital is
the first information report under Section 154 of the Code and not the
complaint-FIR lodged by the complainant Ali Mohmed at exh.30.
ii)
That the time of death of the deceased Abdul is not established, hence,
prosecution story is doubtful.
iii)
Identity of the Muddamal articles is doubtful as the witnesses have not been
shown such items and have not identified;
iv)
Identity of one more witness Manudo is also doubtful and in his place somebody
is placed as Manudo in view of the evidence led by the accused persons.
v) The
investigation carried out by the investigating officer Mr.Makwana is not
truthful but is shaky and, therefore, it creates cloud of doubt.
vi)
Statement of some of the witnesses by the police under section 162 are recorded
late and, therefore, there was chance for manipulation.
vii)
Non-cognizable complaint lodged by A-1 and produced at exh.33 is not admissible
in evidence as it was given to the police officer-investigating officer during
the course of investigation;
viii) the
contradictions in the evidence of witnesses are also creating doubt on the
veracity of the prosecution case.
In
appeal, the High Court relied upon the testimony of the eye-witnesses and
convicted the appellant vide impugned judgment. The High Court held:
"We
have no hesitation in finding that the contradictions and the deficiencies and
discrepancies highlighted by the trial court in rejecting the evidence of 3 eye
witnesses supported by medical evidence and also F.S.L. report are in our
opinion quite at micro level and some of them are factually not correctly
stated and even if they are factually correct, would not in reality influence
or affect the evidence of 3 eye witnesses and other circumstances corroborating
the evidence of eye witnesses. The trial court has committed thus serious error
of law in placing unnecessary reliance on such insignificant, unsustainable and
micro level discrepancies and contradictions which as such do not affect the
main core of the prosecution story and has failed to rely on the evidence of 3
eye witnesses whose evidence has remained unimpeachable on the main story of
the prosecution that it was none else but only A-1 Allarakha who did commit
murder of deceased Abdul Karim by giving him successive blows with dhaia in a
public place near the tea stall of the deceased and that too for a motive for
pecuniary gain.
The
trial court has committed also serious error in giving benefit of doubt to the
appellant A-1 Allarakha. We may mention at this stage that benefit of doubt if
any arising from the record of the case on the main story of the prosecution
which is reasonable and just in the circumstances could be given to the accused
which is one of the fundamental principle of Criminal Jurisprudence. However,
it must be strictly noted that the benefit of doubt should be a reasonable
average person and not of a person who is afraid of legal consequences.
Before
we conclude, we should also like to highlight one more important aspect which
also significantly corroborates and supports the prosecution case and the
evidence of 3 eye witnesses and it is the recovery of Muddamal article No.9 dharia
from A-1. We have found while examining the impugned judgment that the trial
court has made certain observations and has raised certain conjuctures that the
accused in such a situation would not always carry incriminating dharia all the
time during the period of abscondance after the incident (it may be noted that
the accused persons were found from village Madi and came to be arrested and at
the time when the crime weapon article No.9-dharia was recovered in presence of
panches and the Muddamal dharia -article No.9 had human blood stains on the
blade portion of it). It is also supported by the report of the serologist. It
is clearly found by the expert in the serological examination that it did
contain the blood stains of human blood group "B" which was of the
deceased Abdul Karim as the clothes found from the dead body contained the same
blood group. The panchnama prepared in this behalf is also supporting the case
of the prosecution." On the basis of the evidence, the High Court found
that the appellant was the prime accused being responsible for the murder of
Abdul Karil Ali Mohmed. He gave four successive dharia blows on the vital
organs of the deceased which resulted in his death. The weapon of offence,
Article No.9 recovered from the appellant was stained with blood Group
"B" which was the blood group of the deceased. The statement of three
eye-witnesses, namely, Ali Mohmed Husein (PW4), Shashikant (PW6) and Mamdu @ Abdulla
(PW9) proved the version of the prosecution leading to the unerring conclusion
that it was the appellant alone who had committed the murder of the deceased by
inflicting four successive blows with the weapon of offence- Exh.9. The
evidence of the eye-witnesses stood corroborated by medical evidence of Dr.C.M.
Acharya (PW3) and Dr.N.R. Jadeja (PW2).
Learned
counsel for the appellant assailed the impugned judgment on the ground that
under Section 378 of the Code of Criminal Procedure the High Court could not
disturb the finding of fact of the trial court even if it was of the opinion
that the view taken by the trial court was not proper. It is submitted that
where two views are possible, the one favourable to the accused resulting in
his acquittal should be accepted and not interfered with lightly.
The
settled position of law regarding the powers to be exercised by the High Court
in an appeal against the order of acquittal is that though the High Court has
full powers to review the evidence upon which an order of acquittal is based,
it will not interfere with an order of acquittal because with the passing of an
order of acquittal the presumption of innocence in favour of the accused is
reinforced. The High Court should be slow in disturbing the finding of the fact
arrived at by the trial court. The golden thread which runs through the web of
administration of justice in criminal case is that if two view 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. In our country it is not a jurisdictional limitation on the appeal
court but a judge made guideline of circumspection. In Shivaji Sahebrao Bobade
& Anr. v. State of Maharashtra [AIR 1973 SC 2622] this Court held:
"This
Court had ever since its inception considered the correct principle to be
applied by the Court in an appeal against an order of acquittal and held that
the High Court has full powers to review at large the evidence upon which the
order of acquittal was founded and to reach the conclusion that upon that
evidence the order of acquittal should be reversed. The Privy Council in Sheo Swarup
v. King Emperor 61 Ind App. 398 = (AIR 1934 P.C. 227(2), negatived the legal
basis for the limitation which the several decisions of the High Courts had
placed on the right of the State to appeal under Section 417 of the Code. Lord Russel
delivering the judgment of the Board pointed out that there was "no
indication in the Code of any limitation or restriction on the High Court in
the exercise of its powers as an appellate tribunal," that no distinction
was drawn "between an appeal from an order of acquittal and an appeal from
a conviction," and that "no limitation should be placed upon that
power unless it be found expressly stated in the Code." He further pointed
out at p.404 that, "the High Court should an dwill always given proper
weight and consideration to such matters as
(1) the
views of the trial Judge as to the credibility of the witnesses,
(2) the
presumption of innocence in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at his trial,
(3) the
right of the accused to the benefit of any doubt, and
(4) the
slowness of an appellate court in disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the witnesses."
In
Sanwat Singh vs. State of Rajasthan (1961) 3 SCR 12- = (AIR 1961 SC 715) after
an exhaustive review of cases decided by the Privy Council as well as by this
Court, this Court considered the principles laid down in Sheo Swarup's case and
held that they afforded a correct guide for the appellate court's approach to a
case against an order of acquittal. It was again pointed out by Das Gupta, J.
delivering the judgment of five judges in Harbans Singh v. State of Punjab
(1962) suppl. 1 SCR 104 = (AIR 1962 SC 439).
"In
many cases, especially the earlier ones the Court has in laying down such
principles emphasised the necessity of interference with an order of acquittal
being based only on 'compelling and substantial reasons' and has expressed the
view that unless such reasons are present an Appeal Court should not interfere
with an order of acquittal (vide Suraj Pal Singh v. The State, (1952 SCR 193 =
(AIR 1952 SC 52) Ajmer Singh v. State of Punjab, (1953) SCR 418 = (AIR 1953 SC 76),
Puran v. State of Punjab, AIR 1953 SC, 459). The use of the
words 'compelling reasons' embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and difficulties occasionally
arose as to what this Court had meant by the words 'compelling reasons'. In
later years the Court has often avoided emphasis on 'compelling reasons' but
nonetheless adhered to the view expressed earlier that before interfering in
appeal with an order of acquittal a court must examine not only questions of
law and fact in all their aspects but must also closely and carefully examine
the reasons which impelled the lower courts to acquit the accused and should
interfere only if satisfied after such examination that the conclusion reached
by the lower court that the guilt of the person has not been proved is
unreasonable." The paramount consideration of the court should be to avoid
miscarriage of justice. A miscarriage of justice which may arise from the
acquittal of guilty is no less than from the conviction of an innocent. In a
case where the trial court has taken a view based upon conjectures and hypothesis
and not on the legal evidence, a duty is cast upon the High Court to
re-appreciate the evidence in acquittal appeal for the purposes of ascertaining
as to whether the accused has committed any offence or not. Probable view taken
by the trial court which may not be disturbed in the appeal is such a view
which is based upon legal and admissible evidence. Only because the accused has
been acquitted by the trial court, cannot be made a basis to urge that the High
Court under all circumstances should not disturb such a finding.
In the
instant case the trial court relied upon certain aspects of the case as noticed
earlier for passing an order of acquittal. Examined critically, none of the
aforesaid circumstances or aspects can be held to be based upon legal evidence.
Whether Exhibit 36 or Entry No.20/89 is the First Information Report would not
change the nature of the allegation made against the accused as no discrepancy
is pointed out in the aforesaid entries. Entry No.20 is recorded on the basis
of report received from the Hospital and Exhibit 36 is on the basis of
statement of the complainant Ali Mohmed. In the absence of any discrepancy in
the aforesaid two documents, the accused-appellant could not be acquitted. The
two entries did not make the so-called two versions possible. The only
inference of the two entries is that occurrence had taken place in which Abdul Karim
Ali Mohmed had died and the appellant had inflicted injuries. Similarly the
time of death in no way proves the appellant to be innocent. In presence of the
ocular testimony of eye-witnesses that occurrence had taken place on 27th
March, 1989 at about 7.30 p.m. in which the injuries found on the person of the
deceased were caused by the appellant, the time of death of the deceased ascertained
on the basis of opinion of the Doctor was in no way helpful to the appellant.
We also find that the trial court had no reason to hold that the identity of
the weapon of offence was doubtful or Mamudu @ Abdulla (PW9) was not the
prosecution witness whose statement had been recorded under Section 161 of the
Code of Criminal Procedure. The defects in the investigation holding it to be
shaky and creating doubts also appears to be the result of the imaginative
thought of the trial court. Otherwise also defective investigation by itself
cannot be made a ground for acquitting the accused. The trial court was also
not justified in holding that the statement of the witnesses under Section 161 Cr.P.C.
were recorded late by the police and that there was any chance of manipulation.
The FIR is proved to have been recorded within 15 minutes of the occurrence and
its copy furnished to the Magistrate within 24 hours, which rules out the
possibility of manipulation. The contradictions in the evidence of the
witnesses, referred to in the judgment of the trial court, are of very minor
nature which instead of discarding their testimony strengthens the case of the
prosecution of the witnesses being truthful as they were not shown to have made
parrot like statements. A critical examination of the judgment of the trial
court shows that the view taken by it was uncalled for, not based upon the
facts of the case or the legal evidence tendered in the case and was the result
of conjectures, imagination and hypothesis. The High Court rightly held that
the conclusions arrived at by the trial court were factually and legally
incorrect. The High Court was, therefore, justified in re-examining the whole
evidence produced in the case and to hold that the accused-appellant was proved
to have committed the offence of murder beyond all reasonable doubt. He has
rightly been convicted and sentenced for the commission of the aforesaid
offence. We do not find any illegality or error of jurisdiction in the judgment
of the High Court requiring our interference.
There
being no merit in this appeal, the same is dismissed.
............................J.
(R.P. Sethi)
............................J.
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