MAHAMADKHAN NATHEKHANversusSTATE OF GUJARAT

                     [2014) 7 S.C.R. 777


               MAHAMADKHAN NATHEKHAN                                 A
                               V.
                    STATE OF GUJARAT
             (Criminal Appeal No.162 OF 2007)

                   SEPTEMBER 10, 2014
                                                                     B
      [MADAN B. LOKUR AND C. NAGAPPAN, JJ.]

     Code of Criminal Procedure, 1973 - s. 378 - Appeal in
case of acquittal - Interference by the High Court - Scope of
- Held: High Court not expected to merely substitute its             C
opinion for that of the trial court only because it is permitted
to do so and because it has the power to do so.- High Court
has to correct an error of Jaw - It has to exercise its discretion
very cautiously, keeping in mind the acquittal of the accused
and the rights of the victim - On facts, the High Court convicted    D
the appellants u/ss. 302134, 3021114 and uls. 25(1)(a) of the
1959 Act and sentenced them accordingly, setting aside the
acquittal by the trial court - High Court misread the material
evidence and reversed the decision of the trial court - Thus,
order of conviction and sentence imposed by High Court set           E
aside and the judgment of acquittal rendered by the trail court
restored - Penal Code, 1860 - ss. 302134, 3021114 - Arms Act,
1959 - s. 25(1)(a).

     Allowing the appeals, the Court
                                                                     F
    HELD: 1.1 It is the obligation of the High Court to
consider and identify the error in the decision of the trial
court and then decide whether the error is gross enough
to warrant interference. The High Court is not expected
to merely substitute its opinion for that of the trial court         G
only because it is permitted to do so and because it has
the power to do so. It has to correct an error of law or
fact significant enough to necessitate overturning the
verdict of the trial court. The High Court has to exercise
                             777                                     H
    778      SUPREME COURT REPORTS             [2014] 7 S.C.R.


A its discretion very cautiously, keeping in mind the
  acquittal of the accused and the rights of the victim. (Para
  8) [783-G-H; 784-A]

      1.2 On facts, homicidal death has not been
  established. There was no motive for the occurrence.
8
  The High Court misread the material evidence and
  reversed the decision of the trial court by convicting the
  accused. The conviction and sentence imposed by the
  High Court on the appellants is set aside and the
C judgment of acquittal rendered by the trail court is
  restored. [Para 12, 13, 14) .£787-8, C, E, F]

         Sujit Biswas vs. State of Assam 2013 (3) SCR
    830:(2013) 12 sec 406 - referred to.

0        *Chandrappa vs. State of Karnataka 2007 (2) SCR
    $30:(2007) 4 sec 415 - relied on.

                        Case Law Reference:
          2007 (2) SCR 630      Relied on           Para 8
E         2013 (3) SCR 830      Referred to         Para 12

        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 162 of 2007

F       From the Judgment and Order dated 26.12.2006 and
    22.01.2007 of the High Court of Gujarat at Ahmedabad in
    Criminal Appeal No. 865/1986.

                              WITH

G Crl.A. Nos. 406 and 695 of 2007.

      Suhil Kumar, D.G. Karia, Aditya Kumar, Sanjay jain,
  Harpuneet Singh, Manisha T. Kariya, Sushi! Kr. Gupta, J.M
  Pathan, LR. Pathan, M. A.Sheikh, Kamal Mohan Gupta, for the
H Appellant.
   · MAHAMADKHAN NATHEKHAN. v. STATE, OF                 779
                 GUJARAT
    Hemantika Wahi, Pinky Behra, -Preeti Bhardwaj,' Swati      A-
Vaibhav for the Respondent.                · ·ol '
  - The Judgment of the Court was delivered by
  -, C. NAGAPPAN, J. 1. All three appeals are preferred.
against the judgment dated 26.12.2006 in Criminal Appeal B·
no.865 of.1986 passed by the High· Court of Gujarat at
Ahmadabad.

    _2. Accused no.1 A~af Afkhan Kalandarkhan, accused no.2
Mahamadkhan Nathekhan and accused-"no.3 Vora lsmailbhai c'
Daudbhai were tried for the -charge under Sections 302, 120(8)
and 201 of IPC and Section 25(A) of The Arms Act, 1959 for
committing the murder of Firozbhai Abdul Latif by firing gun shot
on the right side of his chest, when he was in the motor car of
accused no.3 in the early hours on 21.2.1984 in Sessions . D
Case no.44 of 1985 on the file of Additional Sessions Ju,dgei,
Ahmadabad (Rural) at Narol. The Trial Court acquitted the
accused from all the charges leveled against them. Challenging
the same the State of Gujarat preferred appeal in Criminal
Appeal no.865 of 1986 on the file of the High Court of Gujarat E'
at Ahmadabad and the High Court held that the charge of
criminal conspiracy aga_inst accused nos.1 to 3 has not been
proved by the prosecution and the offence under Section
25(1 )(a) of the Arms Act 'is not proved as against accused ·no.3
and acquitted them of the said charges. At the same time, the F
High Court found accused nos, 1 and 3 guilty of the offence
punishable under Section 302 read with Section 34 IPC and
accused no.2 guilty for the offence pu'nishable under Section
302 read with Section 114 IPC and further held accused nos.1
and 2 guilty of the offence punishable under Section 25(1 )(a)
of the Arms Act. Accordingly, the High Court sentenced all the G
three accused to undergo rigorous imprisonment for life for the
charge of murder and sentenced accused nos.1 and 2 to
undergo rigorous imprisonment for three years and to pay a fine;
of Rs.5000/-, in default, to undergo rigorous imprisonment for
six months for the offence under the Arms Act. Challenging their H
    780     SUPREME COURT REPORTS                   [2014] 7 S.C.R.

A conviction and sentence all the three accused have preferred
  three independent appeals before this Court.

        3. Briefly the prosecution case is as follows : Accused:
  nos.1 and 3 were friends of deceased Firozbhai and their
B relationship was cordial. Accused no.2 was also a common
  friend of them. Firozbhai was in the business of selling tyres of
  four wheelers and two wheelers and accused no.3 was in the
  busines.s of sale and purchase of motor trucks and was a broker
  in that field and he was helping Firozbhai to sell tyres to the
  traders at Savarkundla, a town under the district Bhavnagar.
C There were outstandings to be recovered from customers at
  Savarkundla and Firozbhai was interested in early recovery arid
  at his instance accused nos.1 and 3 on 20.2.1984 agreed to
  accompany Firozbhai to Savarkundla sometime during
  afternoon hours. Firozbhai sold the tyres at Savarkundla on
D credit basis at the instance of accused no.3 by taking only token
  amount and hence Firozbhai was keen that accused no.3
  should accompany him. The brother of deceased Firozbhai,
  Mohammed Usman was working in a cooperative bank in the
  same place and during the spare hours he was helping
E Firozbhai in his business. On 20.2.1984 Firozbhai told his
  brother Mohammed Usman of his plan to go to Savarkundla
  with accused nos.1 and 3 for collecting dues from his customers
  and requested him not to go to the bank on the next day so
  that he can attend.to the business at the shop. Both the brothers
F took dinner in the ·night and at that time Firozbhai informed his
  wife Banu Bibi about his programme to go to Savarkundla and
   further told her that he was to go in the car with accused nos.1
   and 3 and she need not worry because of severe cold. After
  dinner he left the home with a suitcase and went to the shop of
G accused no.3.
         4. Accuse.P no.3 at that time ~as reluctant to go with
    Fjrozbhai and finally accused nos.1 and 3 agreed and they
    started in the fiat car driven by accused no.3. On their way, they
    put petrol from the petrol pump of Lalitkumar and proceeded
H
    MAHAMADKHAN NATHEKHAN v. STATE OF                         781
         GUJARAT [C. NAGAPPAN, J.]
towards Bagodara. Suddenly, they decided to go to Nal A
Sarovar for hunting and they went to village Gangad and took
accused no.2 with his gun. It was decided that firstly they would
go for hunting at Nal Sarovar and then they would proceed to
Savarkundla. They took petrol from Bagodara petrol pump and
started their journey towards Nal Sarovar. When they were B
nearing Nal Sarovar Firozbhai received gunshot injury from the
gun and the accused returned towards city to take injured
Firozbhai to the hospital. On the way accused no.2 got down
with his gun. Accused nos.1 and 3 took injured Firozbhai to V.S.
Hospital and told the hospital authority that some unknown            c
persons injured Firozbhai when they were proceeding towards
Savarkundla. Firozbhai succumbed to the gunshot injury and
the police from Ellisbridge Police Station recorded the
complaint of accused no.3 and the case was registered. Inquest
was held and articles were recovered and the fiat car belonging D
to accused no.3 was seized in the presence of panchas under
a Mahazar. The body was sent to post-mortem.

     5. PW4 Dr. Pratima Mahendra Desai conducted autopsy
under the supervision of PW1 Dr. Kothari and they found the
following injuries:                                                   E

    "1. Wound on right side of chest just lateral and slightly
    below right nipple. Its margin just touching the areola. It was
    12 ems away from the midline of chest and 16 c.m. below
    right clavical. It was 3 ems x 2 ems x chest cavity deep.         F
    Margin was abraded as shown in diagram the lower border
    showing beveling and it was red and upper border is
    overlapping. The 4th, 5th right ribs were fractured. The
    direction was from right to left anteroposteriorly and below
    upwards. Margins inverted. No visible marks of burning,           G
    tattooing and blackening. Blood was coming out from this
    wound these injuries were antemortem."

     Exh. 15 is the post-mortem certificate issued by them and
the cause of death was due to shock and haemorrhage
resulting from fire-arm wound.                                        H
    782       SUPREME COURT REPORTS                 [2014) 7 S.C.R. •


A       6. The Forensic Science Laboratory experts collected the
  chance-prints on the handle of the motor car and took specimen
  of blood from the blood stains found in the car. They took hand-
  wash of accused Nos. 1 and 3. On investigation the police
  found that accused no. 3 has given false information and the
B case was transferred to Urnrala Police Station and thereafter
  t~e investigation was handed over to State Crime Branch. The
  witnesses were examined and on completion of investigation
  final report came to be filed· against the accused. During the
  trial the prosecution examined number of witnesses and
c marked documents. The Trial Court acquitted the accused of
  {he charges. However, on appeal by the State the High Court
  set aside the judgment of the Trial Court and convicted and
  sentenced the accused as stated supra. The accused have
  challenged the same in the present appeals.
D       7. The primary submission made on behalf of the
  appellants is that the High Court in the impugned judgment ha~
  merely substituted its view 'to the one taken by the Trial Court
  which is impermissible in law and it ought not to have interfered
  with the judgment of acquittal made by the Trial Court,
E particularly in a case of circumstantial evidence. Per contra, the
  learned counsel appearing for the respondent-State contended
  that the High Court has elaborately considered the evidence
  on record and came to the conclusion that the prosecution has
  proved the guilt of the accused persons and the conviction and
F sentence imposed on the appellants are sustainable.

        8. The crucial issue for consideratron, therefore, relates to
  interference by the High Court in an acquittal rendered by the
  Trial Court. The entire case law on.the subject was discussed
G by this Court in the decision in Chandrappa vs. State of
  Karnataka (2007) 4 SCC 415 wherein it was held as follows :

          "(1) An appellate court has full power to review,
          reappreciate and reconsider the evidence upon which the
          order of acquittal is founded. ·
H
   , MAHAMADKHAN NATHEKHAN v. STATE OF_                                 783
          GUJARAT [C. NAGAPPAN, J.]
          (2) The Code of Criminal Procedure, 1, 973 puts no                  A
  ~. 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
                                                                              8
      compelling reasons", "good and sufficient grounds", "very
      strong circumstances", "distorted conclusions", "glari.ng
      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                  C
      language" to emphasise 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.
   J'·~ .
                     :~-



      (4) An appellate court, however, must bear in mind that in              D
· ·case of acquittal, there is double presumption in favour of
                                                               1
,, ·the accused. Firstly, the presumption of innocence 1s
  ·.· 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                E
      of law. Secondly, the accused having secured his acquittal,
     ·the presumption of his innocence is further reinforced,
    . reaffirmed and strengthened by the trial court.
 . . IJ         I                           '            '   {"" ,_ 1   I




     i·(S) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not disturb             F,
the finding of acquittal recorded by the trial court." ' , ' ·
    . ..                                            .
  . It is the obligation ofJhe High Court to consider and identify
the error in the dects1on of the Trial Court and then decide
whether the error is gross enough to warrant interference. The                G
High Court is not expected to merely substitute its opinion for
that of the Trial Court only because of the first two.principles in
the decision referred above permit it to do so and because it
has the power to do so - it has to correct an error of law or fact
significant enough to necessitate overturning the verdict of the              H
    784     SUPREME COURT REPORTS                  [2014] 7 S.C.R.

A Trial Court. The High Court has to exerc;ise its discretion very
  cautiously, keeping in mind the acquittal of the accused and the
  rights of the victim.

        9. The case of the prosecution rests on circumstantial
  evidence. Though the appellants herein were charged for the
8
  offence of criminal conspiracy to commit the murder of
  Firozbhai the Trial Court as well as the High Court held that the
  said charge has not .been proved by the prosecution. In so far
  as the charge of murder is concerned, the High Court reversed
  the judgment of the acquittal of the Trial Court and found the
C appellants guilty and that is under challenge in these appeals.
  For better appreciation, in this judgment, the accused are
  referred to by their original rankings before the Trial Court.
  Firozbhai was in the business of selling ·tyres of four wheelers
  and two wheelers and accused no.3 was in the business of sale
D and purchase of motor trucks and he was helping Firozbhai to
  sell tyres to the tr~ders at Savarkundla. Accused no.1 also was
  a friend of Firozbhai and accused no.2 was a common friend
  to all of- them. At the instance of accused no.3, Firozbhai sold
  tyres to customers at Savarkundla on credit basis and there
E were outstandings to be recovered and on 20.2.1984 Firozbhai ·
      .
  asked the accused no.3 to accompany him to collect the dues.
  Accused no.3 was reluctant to proceed to Savarkundla in the
                                                               .
  night on 20.2.1984 because of the cold climate but on the
  compulsion of Firozbhai both accused nos.1 and 3 agreed to
F the trip. Firozbhai directed his younger brother to look after the
  business in the shop the next day and convinced his wife that
  he is proceeding in the car driven by accused no.3 and hence
  she need not worry about the cold climate. Accordingly, they
  left at about 10.00 p.m. on 20.2.1984 in the fiat car driven by
G accused no.3 and on the way they put petrol from the petrol
  pump of Lalit Kumar. Out of 12 circumstances enumerated by
  the Trial Court in its judgment the above constitute first four of
  it and the Trial Court found that the prosecution has satisfactorily
  established the same. In this context it has to be borne in mind
H that the relationship Firozbhai had with accused nos.1 and 3
             MAHAMADKHAN NATHEKHAN v. STATE OF                     785
                  GUJARAT [C. NAGAPPAN, J.]
    1
•       was very cordial. It is in evidence that accused no.3 would        A
        frequently visit the shop of Firozbhai and was helping Firozbhai
        in improving his tyre business. In fact, accused no.3 was
        reluctant to go to Savarkundla in the night on 20.2.1984 on
        account of cold climate and suggested to leave the next day
        morning. Firozbhai having come fully prepared for the trip with    B
        his suitcase, compelled accused nos.1 and 3 to leave the same
        night by car to Savarkundla.

        10. While proceeding to Bagodara they decided to go Nal
   Sarovar for hunting and they took accused no.2 with his gun             C
   and when they were nearing Nal Sarovar Firozbhai received
   the gunshot injury from the gun. Both the wife and younger
 · brother of Firozbhai have testified that Firozbhai was fond of
· hunting and on earlier occasion he had gone for hunting along
   with his friends. Hence, there is no surprise that they took a
   decision while midway to go for hunting at Nal Sarovar and then         D
   proceed to Savarkundla. Only for that purpose they picked up
   accused no.2, a common acquaintance, from his village. As per
   the prosecution case, accused no.3 was driving the fiat car and
   accused no.2 was seated at his left side in the front seat and
   Firozbhai and accused no.1 were seated on the back seat and             E
   the gun resting between them vertically. Exh.48 is the
   panchnama dated 19.5.1984 prepared during test and it states
   that the gun was placed on rear seat of the fiat car and the butt
   of gun moved towards the down side of the seat of the driver
        1




   at 14 inches below the seat and the person was made to sit              F
   on the left side of the rear seat looking at the pipe of the gun
   and the pipe remain at 5 inches from the chest. PW1 Dr.
   Kothari under whose supervision the autopsy was conducted
   has testified that he saw wound on the right side of chest slightly
   below right nipple and the direction was from right to left             G
   anteroposteriorly and below upwards. It is his further testimony
   that if deceased is sitting in motor car and if nosal of gun is
   within distance of 1ft. and it is in direction of injury and there is
   accidental firing the said injury is possible. The Ballistic expert
    PW7, in his testimony given on 10.12.1985 in the trial has             H
    786       SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A stated that it is possible that if there are jerks and the road is
  bumpy there is a possibility that the trigger could be pressed
  and the gun be fired accidently. He further categorically opined
  that the direction of the injury is from down to up and hence there
  is every possibility that the gun injury is due to an accident.
B
        11. Much reliance was placed by the High Court on the
  information of the FSL expert about the presence of nitrate in
  the hand-wash of accused no.1. In fact, the High Court in
  paragraph 24 of the judgment has observed thus :
c         .......... "The presence of nitrate in the hand-wash of this
          accused establishes that at the time of sustaining gunshot
          injury by deceased Firozbhai accused no.1 Ashrafkhan
          must be very close to him or he must be responsible for
          the injury." ............ .
D
        Accused no.1 was seated in the back seat along with
  Firozbhai when the gun fired. Prosecution witness no.7
  Jayprakash, Ballistic expert has testified that on the back seat
  of the car and on the doors of the left side glass pane nitrite
E was found. Having seated in the back seat it is but natural that
  nitrate was found in the hands of accused no.1 but from that
  no inference can be drawn that he used the gun and was
  responsible for injury.

        12. The High Court treated the statement of accused no.3
F given under Section 313 Cr.P.C. as evidence against him. This
  is clearly impermissible in law. This Court in the recent decision
  in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 held
  thus:-

G         "20 ..............The circumstances which are not put to the
          accused in his examination under Section 313 CrPC,
          cannot be used against him and must be excluded from
          consideration. The said statement cannot be treated as
          evidence within the meaning of Section 3 of the Evidence
H
     MAHAMADKHAN NATHEKHAN v. STATE OF                        787
          GUJARAT [C. NAGAPPAN, J.]
    Act, as .the accused cannot be cross-examined with                A
    reference to such statement."

     Firozbhai died of gunshot injury is established by the
medical evidence. The Trial Court elaborately considered the
evidence and held that there was possibility of accidental death
                                                                      B
rather than homicidal death. In our view the homicidal death has
not been established in the facts of the case.

     13. There was no motive for the occurrence. Though large
amounts are said to be due from the customers at Savarkundla,
there is no evidence of record in the form of books of accounts.      C
Practically, there is no evidence on this aspect. In fact,
according to PW3 Mohammed Usman as per Exh.19 a sum
of Rs.35,640/- was due from accused no.3 and a sum of
Rs.18,240/- was due from accused no.1. In the cross
examination he has stated that the said amount is due from the        D
clients of Savarkundla and not from accused no.3 lsmailbhai
and there are no dues from him. The law is well settled that
when the prosecution case rests purely on circumstantial
evidence, motive plays an important part in order to tilt the scale
against the accused. In our view the High Court misread the           E
material evidence and reversed the decision of the Trial Court
by convicting the accused. The conviction and sentence are
liable to be set aside.

     14. In the result all the appeals are allowed and the
 conviction and sentence imposed by the High Court on the
                                                                      F
 appellants in the impugned judgment are set aside and the
.judgment of acquittal rendered by the Trial Court is restored.

Nidhi Jain                                         Appeals allowed.