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2015 DIGILAW 1174 (GUJ)

Kishorsinh Motilal Rathod v. State of Gujarat

2015-11-05

ANANT S.DAVE, Z.K.SAIYED

body2015
JUDGMENT Z.K. Saiyed, J. 1. By way of present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of conviction dated 22.09.2010 passed by the learned Additional Sessions Judge & Fast Track Court No. 2, Camp at Kalol, Dist. Gandhinagar, in Sessions Case No. 57 of 2009. The said case was registered against the appellant–original accused for the offences punishable under Sections 302 of the Indian Penal Code and 135 of the Bombay Police Act. By the impugned judgment and order the appellant is convicted under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs. 1000/-, in default, R.I. for two years for the offence punishable under Section 302 of the Indian Penal Code. The appellant is acquitted for the offence under Section 135 of the Bombay Police Act. 2. According to the prosecution case, Geetaben Bipinchandra Anantray Jani resides in the row house No. 21 in Kalol, and row house No. 20 belongs to the deceased of this case Alkaben. The deceased Alkaben had been residing alone in the said house for the last three months on rent, and she has taken divorce from her husband, and children are residing at the native place. When she came out to purchase vegetable at about nine o'clock in the morning on 03.03.2009, a male person aged between 30 to 35 years came to Alkaben's house. He made altercation with Alkaben and started beating her with fists and kicks, and at that time, as Pushpaben Dhirajbhai and Manjulaben Sureshbhai, etc. asked as to why you are beating Alkaben, unknown person stated that, "Alka is my wife, what is your objection?" After demanding money, he started beating Alkaben with bat. After fifteen minutes, the said person went away, and door was open in Alkaben's house and she was struggling for life at about one o'clock in the afternoon. She sustained injuries on head and face, hence, 108 (emergency service) was called from Bhavnaben's mobile, and she was brought to government hospital for treatment where she succumbed to injuries during treatment on 10.03.2009. Kalol City Police registered the complaint in this regard vide C.R. No. I-35/09. 3. Thereafter, charge Ex. 4 came to be framed and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 4. Kalol City Police registered the complaint in this regard vide C.R. No. I-35/09. 3. Thereafter, charge Ex. 4 came to be framed and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 4. In order to bring home the charges against the accused person, prosecution has examined 24 witnesses and also produced 26 documentary evidences. 5. Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the accused person denied the case of the prosecution and submitted that a false case is filed against him. 6. On conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment and order convicted the appellant - accused as stated above. 7. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 22.09.2010 passed by the learned Additional Sessions Judge & Fast Track Court No. 2, Camp at Kalol, Dist. Gandhinagar, in Sessions Case No. 57 of 2009, the appellant has preferred the present appeal before this Court. 8. Heard Mr. Shrikar H. Bhatt, learned counsel for the appellant. He has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspective. 9. He has contended that the learned Judge has wrongly relied on the testimony of the complainant. He has contended that the story of the prosecution is unnatural because unknown person was beating the lady in the mids of the houses at around 9 O'clock in the morning but no one tried to stop the unknown person. The police complaint was registered at 5:35 p.m. by neighbour at the police station. He has contended that no person has called police till the police has come after receiving the vardhi from the doctor. 10. He has contended that prosecution has relied upon the testimony of P.W. No. 1 Geetaben Jani, who is examined at Ex. 9. She has not supported her complaint which was registered as FIR. He has contended that the complainant has tried to develop the story against the present appellant due to pressure of the mother and brother of the deceased. He has contended that prosecution has relied upon the testimony of P.W. No. 1 Geetaben Jani, who is examined at Ex. 9. She has not supported her complaint which was registered as FIR. He has contended that the complainant has tried to develop the story against the present appellant due to pressure of the mother and brother of the deceased. He has contended that there are major contradictions in the present case but the learned Judge has not considered those contradictions and wrongly taken presumption against the present appellant. 11. He has contended that prosecution has not brought on record any conclusive proof and direct evidence against the accused. He has contended that Section 302 of the Indian Penal Code from the evidence on record cannot be said to be remotely attracted and, therefore, there is no question of raising any presumption of offence against the appellant. 12. He has contended that investigation of P.W. No. 22, Investigating Officer, was doubtful because he has not investigated the person connected with the complaint filed by the deceased at Ex. 79 and 80. He has contended that PW No. 22 - Police Inspector, examined vide Ex. 69, PW No. 23 - Police Sub-Inspector, examined vide Ex. 81, who had recorded statements of witnesses and arrested he accused person, recovered the weapons and sent the muddamal to FSL. As per the FSL report there is not a single evidence against the present appellant. 13. He has contended that by medical evidence the prosecution has tried to establish that the deceased was injured with bat and belt. From the oral evidence of eyewitness it is established that eyewitness has not supported the said contention of the prosecution. He has contended that bat and belt are recovered from the place of offence, but there is no any finger print of the accused or blood stain of the deceased found on the bat and belt. He has contended that the story of the prosecution is not trustworthy, reliable and acceptable. 14. He has read evidence of the panch of Test Identification Parade P.W. No. 7 examined at Ex. 26 and contended that so called evidence of this witness is concerned, it is not proved beyond reasonable doubt. He has further drawn attention of the Court to the evidence of panch of T.I. Parade P.W. No. 8 - Khodabhai Lilabhai Desai, who is examined at Ex. 26 and contended that so called evidence of this witness is concerned, it is not proved beyond reasonable doubt. He has further drawn attention of the Court to the evidence of panch of T.I. Parade P.W. No. 8 - Khodabhai Lilabhai Desai, who is examined at Ex. 27 and contended that in support of the evidence of this witness the contents of identification panchnama produced at Ex. 28 is required to be proved beyond reasonable doubt through version of both the witnesses and as per evidence of the Mamlatdar through whom identification parade was carried out who is examined as P.W. No. 17 at Ex. 40. He has read evidence of this witness and contended that dummies who were chosen by the Mamlatdar were not chosen as per direction given by the Apex Court viz. with regard to height, coloured etc. Outlook of the dummies should be compared with the height, body and outlook of the present appellant accused but as per the evidence of so called witness, it is not proved beyond reasonable doubt. 15. He has further submitted that Investigating Officer is totally biased and he has never made any attempt to find out actual involvement of real culprit in the present case. He has contended that learned Judge has committed grave error and wrongly considered evidence of the P.W. No. 1 and further contended that only on the ground of evidence of P.W. No. 1 and vegetable vendor, whose evidence is examined by the prosecution, both are not trustworthy, reliable and acceptable. 16. He has contended that when the presence of the appellant - accused is not proved, and when plea of alibi is raised then it is the duty of the prosecution to prove its case beyond reasonable doubt. He has contended that the present appellant is wrongly convicted by the learned Judge. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge deserves to be set aside. 17. Heard Mr. H.S. Soni, learned APP for the respondent - State. He has read charge as well as oral evidence of the witnesses and documentary evidence as evidence of the defence witnesses D.W. Nos. 17. Heard Mr. H.S. Soni, learned APP for the respondent - State. He has read charge as well as oral evidence of the witnesses and documentary evidence as evidence of the defence witnesses D.W. Nos. 1 and 2 and contended that from the evidence of the defence witnesses appellant accused has tried to establish that deceased Alkaben was having elicit relation with one Rajubhai and she was not ready to stay with the present appellant. She had filed proceedings against present appellant under Sections 107 and125 of the Criminal Procedure Code. He has contended that the evidence of the defence witnesses are concocted witnesses and are an afterthought. He has minutely read cross-examination of the witnesses and contended that even said oral version of the defence witness is never asked as a defence version to the witnesses. He has contended that in the present case from the evidence of the P.W. No. 1 and vegetable vendor and other witnesses who were present in the street through their evidence presence of the appellant and identification of the present appellant is proved during the trial as well as during the Identification Parade took place by the Mamlatdar, who is a public servant. 18. He has read evidence of the P.W. No. 1 and contents of the complaint and contended that so far as cross-examination of this independent witness is concerned, the appellant could not establish any animosity of the complainant with him and second eyewitness vegetable vendor is involving the present appellant in a serious offence. He has read contents of the postmortem note and evidence of doctors and contended that as per medical expert evidence they have disclosed that said injuries found on the body of deceased Alkaben are possible by cricket bat and leather belt. He has drawn attention of the Court to the recovery panchnama of place of offence and contended that as per say of the eyewitnesses they have disclosed that appellant - accused has beaten deceased Alkaben with cricket bat and bat was found from the place of offence in two pieces. He has compared injuries of the deceased and contended that bat was recovered from the place of offence in two pieces which shows that with a sufficient force, blows were given to deceased Alkaben and as a result of such force, cricket bat was recovered in two pieces. He has compared injuries of the deceased and contended that bat was recovered from the place of offence in two pieces which shows that with a sufficient force, blows were given to deceased Alkaben and as a result of such force, cricket bat was recovered in two pieces. He has contended that prosecution has proved its case beyond reasonable doubt. He has contended that role of the present appellant and presence of the appellant is also established through independent witnesses. He has contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. Therefore, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed. 19. He has contended that sufficient corroborative pieces of evidences are produced on record. He has contended that the prosecution, by leading sufficient evidence has proved the offence beyond reasonable doubt and learned Judge has rightly considered the case of the prosecution against the present appellant. He has, therefore, prayed to confirm the judgment and order of the learned Judge. 20. We have heard learned counsel for the respective parties. We have gone through the papers produced in the case. We have minutely perused evidence of the witnesses examined by the prosecution. 21. It is true that in the present case Mr. Bhatt, learned counsel for the appellant has tried to establish that direct involvement of the present appellant in the offence in question is not disclosed through the evidence of the prosecution witnesses. We have minutely perused evidence of the P.W. No. 1 complainant, who is examined at Ex. 9. As per the evidence of this witness it is revealed that this witness herself is an outsider. She came to this place for the delivery of her daughter-in-law. We have minutely perused evidence of this witness and contents of complaint Ex. 10 and even from the cross-examination, defence could not establish any animosity of this witness with the present appellant. It is true that some minor contradiction is made by this witness but evidence of this witness is supported by the panch of the identification parade as well as evidence of the Mamlatdar, who has carried out identification parade and panchnama. 10 and even from the cross-examination, defence could not establish any animosity of this witness with the present appellant. It is true that some minor contradiction is made by this witness but evidence of this witness is supported by the panch of the identification parade as well as evidence of the Mamlatdar, who has carried out identification parade and panchnama. No doubt, learned Judge has considered that evidence of this witness in so far as identification is concerned, is not trustworthy, but we have minutely perused evidence of vegetable vendor P.W. No. 11 Rajubhai, who is examined at Ex. 32. This witness is totally an independent witness who was selling vegetables at the place of offence. He has disclosed role of the present appellant and accused is identified by this witness during identification parade. In cross-examination also prosecution could not establish any cogent defence through cross-examination. We have perused evidence of the mother of the deceased examined as P.W. No. 14 - Kantaben who is examined at Ex. 36 and brother of the deceased P.W. No. 13 - Hitesh, who is examined at Ex. 35. From the evidence of both these witnesses they have disclosed that deceased Alkaben was not living with the present appellant and she had filed proceedings under the provisions of Criminal Procedure Code against present appellant for maintenance amount and present appellant had not deposited amount of maintenance in the Court and, therefore, warrant was issued. We have considered evidence of both these witnesses and it appears from the papers that appellant - accused was not ready to pay maintenance amount. He, therefore, with such motive came to house of the deceased where she was living alone and when he was warned by the complainant and other female witnesses, the appellant conveyed to them that Alka is his wife and he was beating her in presence of all the witnesses and inside the house, she was further beaten by him. We have compared evidence of medical expert with the muddamal bat and leather belt, the injuries which are found from the body of the deceased are established beyond reasonable doubt through oral version of the experts that injuries are possible with the muddamal bat and leather-belt. It is true that at the place of offence the so called muddamal bat was recovered in two pieces. It is true that at the place of offence the so called muddamal bat was recovered in two pieces. From the injuries it prima facie appears that when sufficient force is used by anyone to hit the bat, it is possible that in result thereof the bat can be recovered in broken condition in two pieces. Overall, from the evidence regarding last seen together is concerned, it is disclosed by the witness and that is proved beyond reasonable doubt. 22. Mr. Bhatt, learned counsel for the appellant has taken the plea of applicability of alibi in the present matter, but appellant could not make any attempt to establish from cross-examination of the witnesses which can be found trustworthy, reliable and acceptable of the independent witnesses. In the present case the appellant has not taken the plea of alibi during the trial. The appellant - accused has not stated during his statement under Section 313 of the Criminal Procedure Code and nowhere suggested during the cross-examination of the prosecution witnesses that at the time of incident he was at such a place from where he could not have reached the place of offence on that date and at the time of commission of offence. 23. As per the above observations and discussion from the evidence of the witnesses appellant - accused was found at the place of incident at the time of offence committed by him. In the cases of State of U.P. vs. Satish, reported in 2005 Criminal Law Journal 1428 and Bodhraj vs. State of Jammu and Kashmir, reported in AIR 2002 SC 3164, the Court has observed that, the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the present case the appellant is the husband of deceased Alkaben. It was within his knowledge as to how he parted company of the deceased. The evidence on record shows that appellant was present at the place of occurrence of offence and it is supported by eyewitness complainant as well as vegetable vendor. To constitute evidence of last seen together, the evidence must definitely permit an inference being drawn that the victim and the accused were seen together at a point of time in close proximity with the time and date of the commission of crime. 24. In the context of above, we have considered the conduct of the present appellant. Therefore, from the overall evidence produced on record it is prima facie proved beyond reasonable doubt that, the main ingredients of Section 302 of the Indian Penal Code are proved and defence which is taken by the present appellant cannot be considered in his favour. We are, thus, in full agreement with the reasons given and findings recorded by the trial Court while convicting the appellant - accused. In our view, the impugned judgment is just, legal and proper and requires no interference by this Court. Hence this appeal deserves to be dismissed. 25. In the result, the appeal is dismissed. The impugned judgment and order of conviction dated 22.09.2010 passed by the learned Additional Sessions Judge & Fast Track Court No. 2, Camp at Kalol, Dist. Gandhinagar, in Sessions Case No. 57 of 2009, convicting the appellant - accused is hereby confirmed. 26. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.