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2007 DIGILAW 219 (GUJ)

MAHENDRAKUMAR KANTILAL VYAS v. STATE OF GUJARAT

2007-04-03

A.L.DAVE, SHARAD D.DAVE

body2007
A. L. DAVE, J. ( 1 ) THE appellant came to be tried by City Civil and Sessions Court, Ahmedabad in Sessions Case No. 32 of 1999 for murder of Ketankumar Rasiklal Patel allegedly committed by him on 08th September, 1998 around 9. 15 a. m. at Siddheshwar Mahadev Chawl, Jubilee Mill Compound, Ahmedabad by inflicting dagger blows. The Trial Court recorded conviction by judgment and order dated 28th September, 1999 and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 250/-, in default, to undergo further imprisonment for a period of 15 days. The Trial Court, however, found him not guilty of the charge for the offence punishable under Section 135 of Bombay Police Act and recorded his acquittal. ( 2 ) THE prosecution case, in nutshell, is that the appellant Mahendra Kantilal Vyas was in service of deceased Ketankumar Rasiklal Patel. The deceased had arranged for purchase of a television set for the accused from Rajdeep Electronics, Ahmedabad and had arranged for a loan by virtue of which the appellant was supposed to pay a monthly instalment of Rs. 109/ -. The instalments were recovered by deceased Ketankumar from the remuneration payable to the appellant for some time. However, after some time, the appellant left the job with deceased Ketankumar and discontinued paying the instalments. On this count, the deceased used to remind him off and on and used to make demand. This ultimately led to a strained relationship between the two. 2. 1 It is the case of the prosecution further that on 7th September, 1998, the appellant telephoned the deceased and asked him to collect his dues in the next morning. That phone call was made by the appellant from the house of Mahesh Balkrishna (p. w. 3) (Exh. 8) and was received by father of the deceased - Rasiklal Kantilal (p. w. 6) (Exh. 13 ). Accordingly, when the deceased went to collect his dues from the appellant on 8th September, 1998, the appellant allegedly attacked him with a dagger and caused several injuries which ultimately proved to be fatal. 2. 2 After the incident, the appellant rushed to the police station and lodged F.. R. on the basis of which offence was registered and investigation started. 2. 3 On basis of the information received from the appellant, the police arrested the appellant and started investigation. 2. 2 After the incident, the appellant rushed to the police station and lodged F.. R. on the basis of which offence was registered and investigation started. 2. 3 On basis of the information received from the appellant, the police arrested the appellant and started investigation. Panchnama of the place of the incident was drawn so also the inquest panchnama and the dead body was sent for post-mortem. The clothes of the accused were recovered and at the behest of the accused, a dagger was discovered from a place near a burial ground within hours of the incident. The dagger and the clothes of the appellant were sent to F. S. L. for examination alongwith other Muddamal articles. The F. S. L. Report indicated that the clothes of the appellant, the dagger and the soil from where the dagger was discovered contained blood of the group of the deceased. The police, therefore, filed chargesheet in the court of Metropolitan Magistrate who, in turn, committed the case to the City Sessions Court and Sessions Case No. 32 of 1999 came to be registered. The Trial Court recorded conviction of the appellant as stated above and hence, this appeal. ( 3 ) LEARNED advocate Mr. Buddhbhatti for the appellant submitted that although the incident has occurred in a thickly populated area, the prosecution has not examined any independent witness. Mr. Buddhbhatti also submitted that as per the prosecution case, the Muddamal dagger contained fingerprint of the accused which is a chance fingerprint only of the ring finger. Mr. Buddhbhatti submitted that the possibility of this fingerprint having been imprinted at the time of discovery cannot be ruled out. He also submitted that find of only one fingerprint and that too of ring finger would rule out the possibility of the dagger having been handled by the accused for the purpose of causing fatal injuries. There should have been more fingerprints in respect of at least the thumb and/or other fingerprints of the palm. Mr. Buddhbhatti, therefore, submitted that when the case hangs on such circumstantial evidence, this link gets significance. Mr. Buddhbhatti submitted further that motive is not properly established. For an instalment of Rs. 109/- a month, a person would not commit a murder and, therefore, this motive is too futile to accept as a motive for committing murder. Mr. Mr. Buddhbhatti, therefore, submitted that when the case hangs on such circumstantial evidence, this link gets significance. Mr. Buddhbhatti submitted further that motive is not properly established. For an instalment of Rs. 109/- a month, a person would not commit a murder and, therefore, this motive is too futile to accept as a motive for committing murder. Mr. Buddhbhatti, therefore, submitted that in absence of any eye-witness and in light of the fact that chain of circumstance is not complete, the appeal may be allowed and the judgment and sentence rendered by the Trial Court may be set aside. ( 4 ) MS. Patel, learned APP, on the other hand, has submitted that the chain of circumstances is properly established by the prosecution. She submitted that the fact that a loan was taken for purchase of a T. V. for the appellant is proved through evidence of Dharmesh Navinchandra and statement of MAS Financial Services Ltd. (Exh. 17 ). The fact that the appellant was serving with the deceased and he left the job is established through evidence of father of the deceased - Rasiklal Kantilal. Through this witness, it is also established that on the previous day of the incident, the appellant telephoned the deceased and called him to collect the dues. It is also indicated that this had annoyed the deceased and he had responded that he is the employer and, therefore, the accused should go to him but somehow since the accused did not turn up, he went to collect his dues. Ms. Patel submitted that thereafter the incident has occurred and the appellant has himself rushed to the police station and lodged the F.. R. The contents of the F.. R. cannot be looked into but the fact that the accused lodged the F.. R. and that on the basis of whatever was stated by him in the F.. R. , he was arrested are relevant links in the chain, according to Ms. Patel. The accused has thereafter led the discovery of dagger. The recovery of clothes of the accused and discovery of dagger ultimately resulted in the examination by F. S. L. Experts and report of the Serologist that the clothes of the accused and the dagger both contain human blood group b which is of the deceased. Patel. The accused has thereafter led the discovery of dagger. The recovery of clothes of the accused and discovery of dagger ultimately resulted in the examination by F. S. L. Experts and report of the Serologist that the clothes of the accused and the dagger both contain human blood group b which is of the deceased. The soil at the place of incident and at the place wherefrom the dagger was discovered also contained human blood group b and, therefore, the nexus is established between the accused and the dagger and the incident. Ms. Patel submitted that there is medical evidence to show that the injuries found on person of the deceased were possible with a dagger and that they were ante-mortem and were sufficient in ordinary course of nature to cause death. According to Ms. Patel, this would complete the chain of circumstances to link the accused with the crime. She, therefore, submitted that the Trial Court has committed no error in appreciating the evidence and this Court may not exercise its separate jurisdiction. There is no merit in the appeal and the appeal may be dismissed. ( 5 ) WE have examined the record and proceedings in light of what has been argued before us by rival sides. ( 6 ) WHILE screening the evidence, we find evidence of Sheshaji Ghenaji at Exh. 7. He is a witness who has seen the appellant quarreling with another person who was wearing a white kurta and pyjama. He says that the incident occurred at a distance of about 55 feet from where he was sitting and, therefore, he could not notice as to what was in the hands of Mahendra the appellant. He says that he did not know what happened to the person wearing Kurta Pyjama but he went out and thereafter on return, learnt that the said person had expired. This witness has been declared as a hostile witness because he has not supported the prosecution case. However, he admits to have stated before police that on hearing the hubbub, he went towards the toilet block and found that the accused - Mahendra was inflicting blows with an instrument on a person wearing white kurta pyjama. The said man then fell down. The witness, therefore, shouted at accused - Mahendra to leave. However, he admits to have stated before police that on hearing the hubbub, he went towards the toilet block and found that the accused - Mahendra was inflicting blows with an instrument on a person wearing white kurta pyjama. The said man then fell down. The witness, therefore, shouted at accused - Mahendra to leave. Still, the accused inflicted two-three more blows on the person who had fallen to floor and then Mahendra was standing there with that dagger in his hand when his mother Maniben came with a dhoka and started shouting and abusing at Mahendra. She threw that dhoka at Mahendra but somehow it did not hit him. Thereafter, Mahendra left towards the graveyard. The witness thereafter has stated that he gave this information to police out of fear. During cross-examination, he admits that his eye sight is weak and he could see only up to 15-20 feet whereas the incident occurred at a distance of about 55 feet. 6. 1 There is evidence of Lalitaben Mohansing (Exh. 29) who says that she saw the incident occurring around 9. 00-9. 15 a. m. She had gone to take a bath. When she came out, she saw the deceased lying on the floor. He was wearing white kurta pyjama. She says that she saw Mahendra going away from the place. She then identifies Mahendra as the accused. She says that she heard Keshaji talking to someone but whom she does not know. During cross-examination, she states that he saw somebody looking like Mahendra going away at a slow pace. 6. 2 P. W. 5 Dashrathlal Ramlal is examined at Exh. 12. He says that on 8th September, 1998, he was on duty at Idgah Police Chowki of Madhupura Police Station from 8. 00 a. m. to 2. 00 p. m. Around 8. 45 a. m. , the accused came to him and made certain disclosure. Although that disclosure is recorded in the evidence but because that is incriminating, we may not look into it. He says that 2nd P..- Mr. Joshi came there with a van and took away the appellant. P.. Ishwarlal Bhikhalal Joshi is examined at Exh. 45 a. m. , the accused came to him and made certain disclosure. Although that disclosure is recorded in the evidence but because that is incriminating, we may not look into it. He says that 2nd P..- Mr. Joshi came there with a van and took away the appellant. P.. Ishwarlal Bhikhalal Joshi is examined at Exh. 33 who says that on receiving information from the Duty Constable at Idgah Chowki, he then went to the Chowki and on basis of a disclosure made by the appellant accused, it was reduced in writing that an offence was registered and then arrested the appellant by drawing a panchnama (Exh. 22) and recovered his clothes. 6. 3 P. W. 14 Ranvirsinh Madansinh Puvar is examined at Exh. 30 who was working as Senior P.. on the relevant date and, therefore, he took over the investigation from P.. Josh. He prepared panchnama of the place of incident (Exh. 10) and collected the samples containing blood. He discovered chappal from the place of incident. On the accused showing his willingness to discover the weapon used in the offence, two panch witneses were summoned and panchnama (Exh. 24) was drawn. On that weapon, chance fingerprint of the ring finger of the accused is found. The rest of the investigation was then handed over to Police Inspector Pravinkumar Natubhai Barot (p. w. 16) (Exh. 36) who got prepared the map of the place of incident. He also recorded statement of witnesses and collected their evidence. He sent the Muddamal to F. S. L. and on receiving the F. S. L. Report, produced it before the court. He filed a chargesheet. 6. 4 We also find that the F. S. L. Report and the report of the Serologist indicate that the shirt of the accused, kurta, pyjama and undergarments besides soil collected from the place of incident and the place from where the weapon was discovered, all contain human blood group b which was of the deceased. 6. 5 We find from the post-mortem notes at Exh. 28 which that the deceased had fatal stab wounds one on anterior aspect of neck, 2nd one on spinal cord, chest, on the lateral left side of sternum, one on the left costal margins and one on right renal angle 5 cms. above iliac crest. Corresponding injuries to external injuries no. 5 We find from the post-mortem notes at Exh. 28 which that the deceased had fatal stab wounds one on anterior aspect of neck, 2nd one on spinal cord, chest, on the lateral left side of sternum, one on the left costal margins and one on right renal angle 5 cms. above iliac crest. Corresponding injuries to external injuries no. 1, 2 and 3 were found during internal examination and according to the doctor, the cause of death was haemorrhagic shock due to stab injuries. The doctor Dr. V. L. Gupta has been examined at Exh. 27. He describes these injuries and then states that the injuries were possible with Muddamal weapon and that the injuries were sufficient in ordinary course of nature to cause death and cross-examination does not reveal any material to shake the trustworthiness of the witness. 6. 6 The discovery of weapon by the accused is sought to be proved by evidence of panch witness Sarabhai Manilal (Exh. 23 ). He has not supported the prosecution case and is declared hostile. The other panch to the discovery panchnama - Rajeshbhai Gakulbhai Shikari has not been examined by the prosecution and, therefore, it is contended by learned advocate for the appellant that discovery is not properly proved by the prosecution. ( 7 ) ON examining the above evidence, we find that there is evidence of witness Sheshaji and Lalitaben (Exh. 7) and (Exh. 29) respectively who have seen the appellant at the place of occurrence with the deceased, quarreling. Of course, Sheshaji has not supported the prosecution case initially but during cross-examination, he has admitted to have stated certain aspects before police which would link up the appellant with the incident. He has, of course, admitted during cross-examination that his vision is weak and can see only up to a distance of about 15-20 feet whereas the incident occurred at a distance of about 55 feet but nothing turns on that for the reason that there are other strong circumstances which would establish the link between crime and the appellant. 7. 1 The appellant himself has gone to the police and lodged the F.. R. and on basis of that F.. R. , he has been arrested and offence is registered. 7. 1 The appellant himself has gone to the police and lodged the F.. R. and on basis of that F.. R. , he has been arrested and offence is registered. After his arrest, a panchnama is drawn and his clothes are recovered which are found to carry human blood of group b which belong to the deceased. It is nobody s case that the appellant himself had any injury and the appellant has not explained how his clothes contained blood marks. 7. 2 After the arrest, the appellant has shown his volition to discover the weapon. Accordingly, Muddamal article has been discovered. However, that discovery part is not properly proved as the panch has not supported the prosecution case and the 2nd panch has not been examined by the Public Prosecutor on the ground that he was not likely to support the prosecution case. But the weapon contained fingerprints of the ring finger of the accused and it also contained human blood of group b of the deceased. The discovery part has been proved through deposition of Investigating Officer. In light of above evidence, in our opinion, hostility on part of panch witness - Sarabhai Manilal relating to discovery panchnama will pale into insignificance because there cannot be a series of coincidences whereby there would be blood mark on clothes of the accused, there would be blood of the same group on the weapon discovered, there would be fingerprints of the accused on the weapon discovered, there would be persons who would have seen the accused quarreling with the deceased and, therefore, in our opinion, although discovery cannot be said to have been proved to the hilt, nexus between accused and offence has been proved satisfactorily. 7. 3 In addition to above aspects, there are other links which are relevant. On the day prior to the date of incident, the appellant had telephoned the deceased. This telephone call was made from the house of Maheshbhai Balkrishna (Exh. 8 ). Of course, this witness has not supported the prosecution case and has been declared hostile and he denies to have stated before police that the appellant had made a telephone call from his telephone Subscriber No. 212267 to telephone no. 7484984 of the deceased. However, the factum of his having stated so is proved through the deposition of the Investigating Officer. That apart, deposition of Rasiklal Kantilal (Exh. 7484984 of the deceased. However, the factum of his having stated so is proved through the deposition of the Investigating Officer. That apart, deposition of Rasiklal Kantilal (Exh. 13) who happens to be father of the deceased is relevant. He says that on the previous evening, he received telephone call made by accused Mahendra who was working with his son - deceased Ketan. Then he handed over the telephone to the deceased. The deceased was asked by the appellant to collect his dues. This had annoyed the deceased and he had asked the appellant that he (the deceased) is the employer and, therefore, the appellant should make the payment to him. However, on the next morning when nothing happened, the deceased went on his scooter to collect the money and the incident occurred. ( 8 ) IN our view, the above segments of evidence complete a chain of circumstances to connect the appellant with the crime and the Trial Court was, therefore, justified in recording conviction. We do not find any merits in any of the contentions raised by learned advocate Mr. Buddhbhatti and the appeal has to fail. ( 9 ) THE appeal stands dismissed. The judgment and order dated 28th September, 1999 rendered by learned Additional Sessions Judge, Court No. 10, Ahmedabad in Sessions Case No. 32 of 1999 is confirmed. ( 10 ) BEFORE parting, the court would like to place on record a line in appreciation of the services rendered by learned advocate Mr. Buddhbhatti as amicus curiae.