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2011 DIGILAW 495 (GUJ)

Ramji Motibhai v. State of Gujarat

2011-06-29

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment A.L. Dave, J.—Two persons lost their lives in the same manner at the hands of same person on 14.09.2004, in the outskirt of village Madhupura (Antarnesh). Naranbhai Hajabhai Thakore and his son Narsinhbhai Naranbhai were slain by the appellant with the help of a dharia at about 17.00 hours, on account of a land dispute. The incident was not seen by any one. However, the appellant was seen in the proximity of the place and time of the incident with bloodstained dharia in his hand by a witness, who, in turn, informed Jagabhai Jesangbhai, first informant. The said witness also claims to have heard an altercation between the accused and the deceased. On the basis of the information given by Jagabhai Jesangbhai (P.W. 2), offence was registered and investigated by Varahi Police Station. On having found sufficient material during the course of investigation, the police filed charge sheet in the Court of learned J.M.F.C. Radhanpur, who, in turn, committed the case to the Court of Sessions, Patan, where it was registered as Sessions Case No. 3/2005. Charge was framed against the appellant at Exh.2 for the offence punishable under Section 302 of the Indian Penal Code [“IPC” for short]. The accused-appellant pleaded not guilty to the charge and claimed to be tried. 1.1 The trial Court, after considering the evidence led by the prosecution, found that the prosecution was successful in establishing that the appellant committed murder of Naranbhai and his son Narsinhbhai and convicted him for the offence of murder and sentenced him to undergo imprisonment for life, with a fine of Rs. 10,000/-, in default, to undergo R.I for three years. Hence, this appeal. 2. We have heard learned advocate Mr. Goswami for the appellant and learned A.P.P. Mr.Pandya for the State. 3. Mr. Goswami submitted that the prosecution case hangs on circumstantial evidence, that there is no eye witness to the incident and that the first informant has not seen the incident, but has acted upon the information received by him from Jagabhai (P.W. 2). He further submitted that Vibhabhai, though claims to have seen the accused-appellant going with a bloodstained dharia, does not inform any one about it, quietly goes home, takes dinner and does nothing. He does not seem to be telling the whole truth before the Court. He further submitted that Vibhabhai, though claims to have seen the accused-appellant going with a bloodstained dharia, does not inform any one about it, quietly goes home, takes dinner and does nothing. He does not seem to be telling the whole truth before the Court. The first informant is cousin of both, the victims and the appellant and is an interested witness and, therefore, no reliance can be placed on the evidence of the two witnesses. Moment the deposition of Jagabhai goes, nothing remains against the appellant and, therefore, he ought to have been acquitted. Mr. Goswami lastly submitted that the appeal may, therefore, be allowed and the conviction may be set aside. 4. Learned A.P.P. Mr. Pandya, on the other side, has opposed this appeal. According to him, Jagabhai was in proximity of the place and time of the incident. He had seen the appellant leaving the place with a bloodstained dharia in his hand. The cross-examination of this witness would indicate that he had seen the appellant from a close quarter. Jagabhai had also heard commotion on account of altercation between the deceased and the appellant. Mr.Pandya submitted further that the clothes of the appellant were stained with blood. The blood was of group “B”, which was his own blood group as well as blood group of the deceased, but there was no injury on the person of the appellant and, therefore, necessarily an inference can be drawn that the blood on his clothes was not his blood, but that of the victims. Mr. Pandya submitted that the appellant had discovered the weapon in presence of panch witnesses and panch witness Valabhai Nathabhai, (P.W. 1, Exh.9) has supported the prosecution case. He submitted that in this set of circumstances, the prosecution has been able to establish the complete chain of circumstances to link the appellant with the offence. He submitted that the trial Court was justified in recording the conviction and, therefore, the appeal may be dismissed. 5. We have examined the record and proceedings in the context of rival submissions. 6. We find that Mr. Goswami, learned Advocate for the appellant, is right when he says that there was no eye witness to the incident. But, witness Vibhabhai Malabhai (P.W. 3) claims to have been grazing cattle in the proximity of the field of the deceased. 5. We have examined the record and proceedings in the context of rival submissions. 6. We find that Mr. Goswami, learned Advocate for the appellant, is right when he says that there was no eye witness to the incident. But, witness Vibhabhai Malabhai (P.W. 3) claims to have been grazing cattle in the proximity of the field of the deceased. It emerges from his cross-examination that he had heard commotion on account of quarrel between the deceased and the appellant. It also emerges from his cross-examination that he had seen the appellant going away with dharia in his hand from close quarter and that the appellant had quietly and quickly gone away. The effect of this deposition is that it establishes the presence of the appellant in the proximity of the place and time of the incident. 6.1 The next piece of evidence, which is relevant, is the F.S.L. Report. The serological report indicates that the sample of blood of the accused-appellant was analyzed and the blood was found to be of “B” group. Rest of the articles, where blood was identifiable, contained human blood group “B”. These articles include the clothes of both the deceased as well as the appellant. This would mean that the blood group of the deceased persons and the appellant is same and, therefore, it would be prudent to look for some evidence to rule out the possibility of the stains of blood on the clothes of the appellant to be that of his own. In this context, if the arrest panchnama (Exh. 34) is seen, it clearly reveals that there were no marks of any external injuries on the person of the accused, least it is not a bleeding injury. The arrest panchnama would show that he had a minor injury on his left leg toe, which is not found to be a bleeding injury. If there was no bleeding injury on the person of the accused, it would rule out the possibility of blood on his clothes being that of his own. If his clothes were stained with blood, in any other manner, it was his duty to explain the presence of the blood on his clothes, which he has failed to do. The second strong circumstance, which is established, is that the clothes of the appellant were stained with blood of the group of the deceased and his own. If his clothes were stained with blood, in any other manner, it was his duty to explain the presence of the blood on his clothes, which he has failed to do. The second strong circumstance, which is established, is that the clothes of the appellant were stained with blood of the group of the deceased and his own. But, the possibility of his own blood is again ruled out by the absence of any injury on his person. 7. PW.1 is the panch witness, in whose presence the appellant-accused had discovered the weapon. It was a discovery made from the hedge of a field. The serological report indicates that the weapon dharia carried human blood of group “B”. 8. The post-mortem notes of both the deceased are produced at Exhs.24 & 25 and the doctor, who performed the post-mortem, is examined as PW.6 at Exh.22. His deposition establishes that the injuries found on the necks of both the deceased were possible by the muddamal dharia and that they were ante-mortem injuries and were sufficient in the ordinary course of nature to cause death. 9. The resultant effect is that the prosecution has established the complete chain of circumstances indicating that the appellant was present in proximity of time and place of the incident. That he was equipped with a dharia, which was found to be bloodstained. The dharia contained blood of the group of the deceased. That his own clothes were stained with blood of the group of the deceased. The trial Court was, therefore, right in recording conviction of the appellant. The appeal does not merit acceptance. 10. The appeal must fail and it, therefore, stands dismissed. P P P P P