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2013 DIGILAW 455 (GUJ)

Lalji Kanaji Thakore v. State of Gujarat

2013-08-01

K.J.THAKER, K.S.JHAVERI

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JUDGMENT : K. J. THAKER, J. The matter was fixed time and again for final hearing. Yesterday, the matter was heard partly and the same was fixed for further hearing today. However, today, learned counsel for the appellant is not present. Therefore, we are deciding this matter in absence of learned advocate for the appellant. 2. By way of this appeal, the appellant has challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Court No.11, Ahmedabad City, dated 16.5.2007, whereby, the appellant herein, original accused, has been convicted for life imprisonment for the offence punishable u/S.302 of the Indian Penal Code (for short, the IPC) and fine of Rs. 1,000/, in default of payment of fine, the appellant shall undergo further sentence of simple imprisonment for three months. The appellant has been acquitted for the charge u/S. 135 (1) of the Bombay Police Act. 3. A complaint was filed by the complainant, Lalji Suraji Thakor, inter alia alleging that on 06.12.2005 at about 9:15 p.m. the complainant along with Gopal Bhiya, Bharatbhai Thakore and Somabhia Thakore were sitting near the temple of Jogani Mata, after dinner. At that time, the present appellant and his friend Raju Vaghari came in drunken condition and started fighting and abusing each other. It is further alleged that at that time one Hiraji Savaji Thakore had come and asked both of them not to quarrel. However, they did not stop quarrelling. It is further alleged that the complainant intervened and tried to separate them. He took Raju from the place of incident and when he came back, he saw that Hiraji Savji way lying on the floor and blood was oozing out from him. Therefore, Hiraji Savji was taken to the hospital. However, during the course of the treatment said Hiraji Savji died. Thereafter, the complainant lodged the complaint before the Madhupura police station 3.1. After completing necessary procedure the accused was arrested and after completion of investigation, charge-sheet was filed before the competent Court. As it was a sessions triable case, the learned Magistrate committed the same to the Sessions Court, Ahmedabad City. The appellant pleaded not guilty and therefore, the charge was framed and the trial was initiated. 3.2. To prove the case against the present appellant, the prosecution had examined several witnesses, viz. As it was a sessions triable case, the learned Magistrate committed the same to the Sessions Court, Ahmedabad City. The appellant pleaded not guilty and therefore, the charge was framed and the trial was initiated. 3.2. To prove the case against the present appellant, the prosecution had examined several witnesses, viz. Gulabhai Khajabhai Momin, who was examined as P.W.1, at Exh.5, Lalaji Suraji Thakor, was examined as P.W.2 at Exh.9, Vidhyaram Kaluram Kosthi as P.W.3 at Exh.11, Praladji Chunaji Thakor as P.W.4 at Exh.16, Jusabhai Sulemnanbhai Miyana as P.W.5 at Exh.17, Ramgopal Sumitpuri as P.W.6 at Exh.18, Jogaji Kasturji Vaghela as P.W.7 at Exh.19, Vikrambhai Kalidas Parthi as P.W.8 at Exh.21 and Rajendrasinh Sajjansingh Rana as P.W.9 at Exh.25. 3.3. The prosecution had also relied upon several documentary evidences, more particularly the inquest Panchanama at Exh.28, Post mortem Note at Exh.22, FSL report and the complaint at Exh.10. The trial Court after considering the evidence on record and after hearing the parties passed the impugned judgment and order of conviction and sentence as stated hereinabove. 3.4. Being aggrieved and dissatisfied with the impugned judgment and order, the appellant-convict has come up with present appeal before this Court. 4. The fact that deceased Hiraji Savaji Thakore died a homicidal death stands amply proved from the evidence of P.W.8, Dr. Vikrambhai Kalidas Parthi, who performed the post mortem of the dead body. However, the next question whether the accused before us, who has been convicted and has already undergone sentence of more than seven years, was the author of the said offence or not. For the said purpose, this court has to examine the evidence of the witnesses. 5. The prosecution has examined Gulabhai Khajabhai Momin as Panch witness, P.W.1, at Exh.5. In his deposition, he stated that on 07.12.2005 at about 12:00 a.m. at night, he was called at the scene of offence, where he saw a pool of blood. He further stated that he saw the complainant and other police personnel on the spot. He has been shown the Panchanama of the scene of offence, whereupon he made his signature. He also stated that he has been shown the Muddamal articles collected from the scene of offence. In his cross-examination, he stated that he saw the pool of blood and had also seen blood stains at the scene of offence. He has been shown the Panchanama of the scene of offence, whereupon he made his signature. He also stated that he has been shown the Muddamal articles collected from the scene of offence. In his cross-examination, he stated that he saw the pool of blood and had also seen blood stains at the scene of offence. He also deposed that he was not sure whether the complainant was present at the scene of offence or not. 6. P.W.2, Lalaji Suraji Thakor was examined at Exh. 9, who is the complainant in the present case. In his deposition, he stated that on the date of incident at about 9:30 p.m. he was sitting at the temple of Jogni Mata where he saw one Lalji alias Lallo and Raju Vaghari quarrelling. They both were in drunken condition and were abusing each other. At that time, one Hiraji Savji came there and asked both of them not to abuse each other. However, they did not stop quarrelling. The complainant intervened and tried to separate them. He took Raju from the place of incident and when he came back, he saw that Hiraji Savji lying on the floor and blood was oozing out from him. Therefore, Hiraji Savji was brought to the hospital, where the doctors have declared him dead. Therefore, the complaint was filed by him. In his cross-examination, this witness has reiterated the same facts as stated in his deposition. 7. The prosecution witness No.9, Rajendra-sinh Sajjansingh Rana, who is the Police inspector. In his deposition, he stated that he had received instruction at 9.40 p.m. that an incident had occurred and therefore, he went at the scene of offence. He further stated that he came to know that Hiraji Savji had been inflicted knife blow by someone and was brought to the hospital. Thereafter, he came to know that Hiraji Savji expired. Thereafter, this witness has recorded the complaint of the complainant and followed the necessary procedure. He also stated that one Ramgopal Sumitpuri has stated that Lalaji alias Lallo has inflicted knife blow on the deceased. On the basis of the said information, he had arrested the accused. 8. The prosecution witness Nos. 3, 4 , 5, 6 and 7 have turned hostile. 9. Considering the evidences of the above witnesses, we are of the opinion that these witnesses have not named the present appellant as accused in this case. On the basis of the said information, he had arrested the accused. 8. The prosecution witness Nos. 3, 4 , 5, 6 and 7 have turned hostile. 9. Considering the evidences of the above witnesses, we are of the opinion that these witnesses have not named the present appellant as accused in this case. It is well settled law that if there is no evidence on record against any person, it would not be proper for the courts to record the conviction. In this case, P.W.2, Laljibhai Surjibhai Thakor has given a graphical picture of the incident in question. On the basis of which, the investigation started and the charge-sheet was submitted before the appropriate court and the accused was arraigned for the offence u/S. 302 of the IPC. It is required to be noted that in this case there is no eye-witness to the incident in question. 10. The prosecution witness No.9, Rajendrasinh Sajjansingh Rana, who is a police inspector has been examined as P.W.9. In his evidence, he categorically stated that when he reached to the scene of the offence, it was P.W.6. Ramgopal Sumitpuri, who had stated that he had seen the accused giving knife blow to the deceased and on the basis of the said information he had arrested the accused. It is required to be noted that subsequently this witness i.e. P.W.6, turned hostile. Therefore, the evidence of P.W.6, cannot be believed. Further, as such no circumstantial evidence suggested that it was the accused who had inflicted the knife blow upon the deceased. It is pertinent to note that P.W.2, Lalaji Suraji Thakor in his examination-in-chief very categorically stated that how the deceased suffered injuries is not known to him. 11. An endeavour is made by learned APP that there are blood marks of ‚Å“AB‚group in the muddamal knife. However, all the circumstances in absence of any eye-witness will not persuade us to uphold the decision of the learned Trial Court. We are of the opinion that the in view of the evidences of the witnesses, it will not be wholly safe to maintain the conviction of the appellant and therefore, we are of the opinion that the appellant must be given the benefit of doubt. 12. For the reasons recorded in the judgment pronounced today, the present appeal is allowed. We are of the opinion that the in view of the evidences of the witnesses, it will not be wholly safe to maintain the conviction of the appellant and therefore, we are of the opinion that the appellant must be given the benefit of doubt. 12. For the reasons recorded in the judgment pronounced today, the present appeal is allowed. The judgment and order of conviction and sentence under challenge is quashed and set aside and the appellant, original accused is acquitted of all the charges levelled against him. The accused is in jail, therefore he is ordered to be released from custody forthwith, if he is not required in any other case for any other purpose. R & P be sent back forthwith. Registry is directed to send a copy of the writ of this order to the concerned jail authority forthwith. Appeal allowed.