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2011 DIGILAW 151 (GUJ)

Anopji Bhuraji Thakore v. State Of Gujarat

2011-03-01

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT R.M. CHHAYA, J. 1. THIS appeal arises out of the judgment and order passed by learned Additional Sessions Judge, Banaskantha, Deesa on 06.08.2003 in Sessions Case No.117 of 2002, convicting the appellant-accused for the offences punishable under Section 302 of the Indian Penal Code, 1860 ('IPC' for short) and under Section 135 of the Bombay Police Act, 1951 ('the B.P. Act' for short) and sentencing him to imprisonment for life for the offence under Section 302 of IPC and imposing a fine of Rs.2000/- and to suffer rigorous imprisonment for a period of four months and imposing fine of Rs.500/-, in default, to undergo further rigorous imprisonment for one month for the offences punishable under Section 135 of the B.P. Act. The said sentences were to run concurrently. 2. THE short facts, which would be sufficient for dealing with the present appeal, are that at any time between 14 hrs. on 10.11.2001 and 8:00 a.m. on 11.11.2001 the appellant-accused assaulted deceased-Anopji Rajaji Thakore (hereinafter referred to as "the deceased") and gave blows with stick and knife on the head of the deceased because of which, the deceased succumbed. It is the case of the prosecution that the appellant-accused had developed illicit relation with the wife of deceased viz. Smt. Hansaben and in order to save his prestige and reputation in the society, the appellant had committed the alleged offence of murder. First Information Report was lodged by one Shri Rajaji Kalaji Thakore, PW-2, father of the deceased, with Deodar Police Station on 11.11.2001 alleging offences under Sections 324, 323 of IPC and Section 135 of the B.P. Act. Subsequently, on death of the deceased, Section 302 of IPC was added. On the basis of the FIR above-mentioned, the police started investigation and on completion of investigation, police submitted charge-sheet against the appellant. 3. LEARNED Judicial Magistrate, First Class, Deodar on receipt of such charge-sheet so submitted by the police, committed the case to the Court of learned Sessions Judge, Banaskantha as the case was being exclusively triable by the Court of Session. 4. THE learned Judge, on appearance of the appellant and on perusal of the materials available on record including the police papers as well as also upon hearing the learned counsel for the parties, framed charges against the appellant-accused under Section 302 of IPC and under Section 135 of the B.P. Act. 4. THE learned Judge, on appearance of the appellant and on perusal of the materials available on record including the police papers as well as also upon hearing the learned counsel for the parties, framed charges against the appellant-accused under Section 302 of IPC and under Section 135 of the B.P. Act. THE entire charges were read over to the accused-appellant to which he pleaded not guilty and claimed to be tried. The trial court proceeded with the trial and after considering all evidence led by the prosecution, came to the conclusion that the prosecution has successfully established the charges leveled against the present appellant and specifically believed that the case of the prosecution, which is based on chain of circumstances, is complete and uninterrupted. Later on the prosecution evidence was recorded and on relying upon the same, the learned trial Judge had reached to the conclusion that the offences punishable under Section 302 of IPC and under Section 135 of the B.P. Act were duly established against the appellant. The learned trial Judge, therefore, had recorded conviction of the appellant, as aforesaid. Hence, the present appeal is filed by the appellant against the aforesaid impugned judgment and order recording conviction of the appellant. 5. HEARD Ms. Nisha Parikh, learned advocate appearing on behalf of the appellant, while the respondent-State has been represented by the learned A.P.P. Mr. D.C. Sejpal. 6. LEARNED advocate Ms. Parikh for the appellant-accused has contended that the learned trial Judge has committed a grave error in recording the judgment of conviction and sentence. It was urged that the evidence would go to show that the appellant-accused could not have been convicted for the alleged offence. It was further submitted that the whole case is based on circumstantial evidence. It was further submitted that the entire case hinges on the principle of "last seen together". Learned advocate Ms. Parikh further submitted that the appellant has been falsely implicated in the present case. It was further submitted that the basic requirement of motive is totally absent in the present case and that the prosecution has not been able to lead any evidence on the aspect of motive. Ms. Parikh has also tried to point out that there was no motive for the appellant-accused to commit the murder of the deceased. 7. LEARNED advocate Ms. Ms. Parikh has also tried to point out that there was no motive for the appellant-accused to commit the murder of the deceased. 7. LEARNED advocate Ms. Parikh has further submitted that the prosecution has also not been able to prove the exact time and place of death of the deceased. Ms. Parikh further submitted that there is no corroborative evidence and even on appreciation of the medical evidence there is no further evidence to connect the present appellant with the alleged offences. It was further submitted that the reasons given for coming to the conclusion that the present appellant and the deceased were last seen together are self-contradictory. 8. LEARNED advocate Ms. Parikh submitted that there is no eye-witness to the occurrence and the entire case totally rests upon the circumstantial evidence. She further submitted that the chain of circumstances in the present case is not complete, hence the accused cannot be convicted. Assailing the impugned conviction and sentence awarded by the learned Sessions Judge, learned advocate Ms. Parikh has strongly contended that the conviction of the appellant for commission of murder on the basis of "last seen together" theory based under circumstantial evidence cannot be sustained in law for the simple and only reason that the prosecution has failed to prove the same. According to learned counsel Ms. Parikh, admittedly, although there was no eye-witness to prove the prosecution case, the set of evidence so made available on record would not suggest for application of any "last seen together" theory so as to rope-in the appellant for conviction under Section 302, IPC. Learned advocate Ms. Parikh has further argued that there is no evidence on record to connect the present appellant with the alleged offences. It is also further submitted that taking into consideration the deposition of PW-1 Dr. Ghanshyambhai N. Patel (Exh.7), who examined the deceased at Referral Hospital, Deodar and opined that in case if a person is in drunkard condition and if he falls down from a running jeep, the injuries, which have been sustained upon the body of the deceased, may occur. On the basis of the same, it is also argued by Ms. Ghanshyambhai N. Patel (Exh.7), who examined the deceased at Referral Hospital, Deodar and opined that in case if a person is in drunkard condition and if he falls down from a running jeep, the injuries, which have been sustained upon the body of the deceased, may occur. On the basis of the same, it is also argued by Ms. Parikh that the entire case against the appellant is fabricated and, therefore, she urged that the present appeal deserves to be allowed and the judgment of conviction and sentence as pronounced by the learned trial Judge requires to be set aside. 9. LEARNED A.P.P. Mr. D.C. Sejpal, on the other hand, opposed the present appeal and has contended that the learned trial Court was perfectly justified in its judgment of conviction and sentence looking to the evidence on record of the case. However, Mr. Sejpal has not been able to show anything from the record that the whole chain of circumstances has been proved by the prosecution to its hilt. 10. WE have examined the record and proceedings in context of the rival submissions made by both the sides. At the outset it requires to be appreciated that there is no eye-witness to the incident and therefore, the entire case of the prosecution purely rests upon certain circumstantial evidence. PW-2 Rajaji Kalaji Thakore has in his deposition stated that he was informed by one Shri Devising Subaji Darbar, that a telephonic message was received informing that a man was lying in the outskirts of village Kotarwada and on coming to know about the said fact PW-2, along with said Shri Devising, who happens to be the sarpanch and one Shri Ravatsing Viramji proceeded towards outskirts of village Kotarwada and on reaching the said spot PW-2 came to know that his son-Anop was lying on the road and he had sustained injury on the right side of the head and had also sustained injuries on both knees and was bleeding. 11. IT may be noted that PW-2, who is the first informant, admittedly not an eye-witness and he had knowledge about the fact that the deceased and the present appellant went together from Village Vadaval to Bhabar from the information given by his daughter-Geeta. 11. IT may be noted that PW-2, who is the first informant, admittedly not an eye-witness and he had knowledge about the fact that the deceased and the present appellant went together from Village Vadaval to Bhabar from the information given by his daughter-Geeta. However, there is no evidence on record to come to a definite conclusion that at what point of time the present appellant and the deceased went together from Village Vadaval to Village Bhabar and they were last seen together and, therefore, reliance placed by Mr. Sejpal on the deposition of PW-2 does not carry the case of the prosecution any further in absence of any further collaboration. IT may further be noted that there is no evidence on record to come to a definite conclusion that the injuries upon the person on the deceased can in any manner be attributed to the appellant and thus, the prosecution has not been able to prove the complete chain of circumstances upon which the case of the prosecution hinges. 12. IT clearly transpires from the evidence on record that there is no direct evidence on the question as to who killed the deceased. Looking to the case of the prosecution it appears that the prosecution wants to establish the following circumstances against the appellant-accused: (a) that the present appellant-accused, the deceased and the wife of the deceased were living in Village Vadaval and they were partners in the cultivation; (b) that there is no dispute with regard to relation between the appellant-accused, the deceased and the wife of the deceased because they were closely related; (c) that the appellant-accused and the deceased on 10.11.2001, in presence of wife of the deceased, left for Village Bhabhar and the wife of the deceased had last seen them together; (d) that the appellant-accused and the deceased on 10.11.2001 at 6:30 p.m. were sitting together in the jeep of Masaji Umaji Thakore at Patiya of Village Mitha and they were alighted together; (e) that the appellant-accused is living in Village Kotarwada and the spot of the alleged incident is in the sim of Village Kotarwada, where the deceased was lying unconscious. That the alleged incident occurred in the village Kotarwada, that is to say, sim of Village Kotarwada of the appellant-accused which has drawn an inference that the appellant-accused and the deceased went to the house of the appellant-accused. That the alleged incident occurred in the village Kotarwada, that is to say, sim of Village Kotarwada of the appellant-accused which has drawn an inference that the appellant-accused and the deceased went to the house of the appellant-accused. It may be noted that, however, the prosecution has not been able to prove the motive, except bare version that the present appellant had developed illicit relation with Smt. Hansaben, wife of the deceased, there is no corroboration by the prosecution. There is no evidence to show that the deceased was aware about this relationship. There is no evidence that he objected to or resisted such relationship. And above all there is no evidence to show that he was such a hurdle in the relationship that relationship was not possible to be continued without doing away with him. As such there is no evidence on record to establish the fact that there is any relativity between the alleged crime against the present appellant and hence, the conviction cannot be based only on such hypothesis, in absence of vital evidence of motive. 13. THE Apex Court in the case of Niranjan Panja Vs. State of West Bengal (supra) observed that: "15. ... ... ... Motive is an important circumstance in the prosecution which is based on circumstantial evidence. However, we do not see any such strong motive on the part of the appellant. We, therefore, reject the theory that there was any motive much less any strong motive on the part of the accused so as to commit the murder of the deceased." 14. IN view of the above principles enunciated by the Apex Court, motive is an important circumstance in a prosecution case, which is based on circumstantial evidence and in absence of any motive merely having love affair with the wife of deceased without there being any prior incident or complaint in relation to such an illicit relation, no motive can be attributed on the part of the appellant so as to commit murder of deceased. The prosecution has thus, not been able to prove full chain of circumstances relied upon by it and the prosecution is expected to prove the case through circumstantial evidence beyond the reasonable doubt, by establishing circumstances to its hilt so as to link the offence and in the present case, the prosecution has failed to do so. The prosecution has thus, not been able to prove full chain of circumstances relied upon by it and the prosecution is expected to prove the case through circumstantial evidence beyond the reasonable doubt, by establishing circumstances to its hilt so as to link the offence and in the present case, the prosecution has failed to do so. The trial court has thus, erred in convicting the present appellant. The appeal, therefore, deserves to be allowed. 15. FOR the foregoing reasons, the appeal is allowed. The judgment and order of conviction and sentence dated 06.08.2003 passed by learned Additional Sessions Judge, Banaskantha, Deesa in Sessions Case No.117 of 2002 is hereby set aside. The appellant is acquitted from the charges levelled against him. The accused-appellant ANOPJI BHURAJI THAKORE be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to him.