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2015 DIGILAW 919 (GUJ)

Dadubhai Ishwarbhai Vasava v. State of Gujarat

2015-09-16

ANANT S.DAVE, Z.K.SAIYED

body2015
JUDGMENT : Z.K. Saiyed, J. By way of present appeal, filed under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of conviction dated 29.10.2010 passed by the learned Additional Sessions Judge, Fast Track Court, Bharuch Camp at Ankleshwar, in Sessions Case No. 50 of 2010. The said case was registered against the appellant-original accused for the offences punishable under Sections 302 of the Indian Penal Code. By the impugned judgment and order the appellant is sentenced to undergo life imprisonment and a fine of Rs. 5,000/, in default, S.I. for three months for the offence punishable under Section 235(2) of the Criminal Procedure Code for the offence punishable under Section 302 of the Indian Penal Code. 2. According to the prosecution case, on 19.12.2009 during the evening time the complainant and his mother Kamlaben were in their agricultural field drawing water in the standing crop and in the late night at around 2:00 to 2:30 the complainant woke up and went to his home to see his wife and children since they were alone at home. The complainant reached home at 3:00 O'clock and after about one hour he proceeded to his agricultural field at around 4 O'clock. When he was going towards his field near Mahuvadi tree, situated near the boundary of his agricultural field he saw the accused Dadubhai Vasava who was having dhariya in his hand and going towards his house, at that time, complainant saw him with the light of torch. Thereafter he went to his agricultural field where he found that his mother was lying dead and, therefore, he called his father and brother and they came there. It is alleged in the complaint that Dadubhai Ishwarbhai Vasava has killed his mother as she was harassing the complainant and his mother from very beginning. It is also alleged that there was quarrel going on between them one year prior to the incident. Hence the complaint was lodged. 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 17 witnesses and also produced 10 documentary evidences. 5. Hence the complaint was lodged. 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 17 witnesses and also produced 10 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. 7. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 29.10.2010 passed by the learned Additional Sessions Judge, Fast Track Court, Bharuch Camp at Ankleshwar, in Sessions Case No.50 of 2010 the appellant has preferred the present appeal before this Court. 8. Heard Mr. Mrugen Purohit, 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 read oral evidence of the witnesses and contended that in the present case prosecution could not cite any eyewitness. He has contended that Naginbhai Virsangbhai P.W. No. 3, Sumanbhai Virsangbhai P.W. No. 4, Lataben Gambhirbhai P.W. No. 5, Virsangbhai Vasava P.W. No. 6, Meenaben Vasava P.W. No. 7, Sahulbhai P.W. No. 10 have deposed that there was quarrel between the accused and the family members of the complainant. 10. He has contended that though the blood sample of the deceased was taken but the same was not sent to FSL and in absence of specific proof that the blood group of deceased is "B” group, without verification of the blood group of the deceased it cannot be proved that blood which was found on the muddamal article i.e. clothes of the deceased on the clothes of the accused and on the weapon alleged to have been used is of deceased. Admittedly if the yadi Ex.46, the report of FSL Ex.48 and serological report are considered it explicitly makes clear that the blood sample of deceased though collected was not sent for finding out the blood group. He has contended that there is no evidence regarding the blood group of the accused. 11. He has contended that in the panchnama at Ex.14 it is stated that the accused has stated before the panch that the weapon used in the offence was kept at his residence and the accused himself had voluntarily disclosed the place where the weapon was kept and according to panchnama accused was present when this recovery was made. However, if the deposition of panch witness Hitesh Sahul Vasava Ex.9 is perused, it appears that he has deposed that the accused was not present when they went to his house and the police have found out the weapon dhariya from the house of the accused. Therefore, the recovery of weapon at the instance of accused is doubtful and was not proved. 12. He has contended that there is discrepancy about the time of preparation of panchnama Ex.14. As per Ex.14 the panchnama was completed around 9 O'clock. However, as per the deposition of the panch Hitesh P.W.No. 2 the panchnama was started at around 10 O'clock and completed at about 10:45 O'clock. This shows that signature has been obtained after the panchnama was prepared. 13. He has contended that though prosecution has strongly pleaded the motive, has failed to prove the case beyond reasonable doubt. He has contended that in the present case recovery and discovery is doubtful. Therefore, when the case is completely resting on circumstantial evidence, the chain of circumstances must be completed. In the present case, motive is not proved, recovery and discovery of muddamal articles is not proved and same is doubtful, the panchas are interested witnesses and other witnesses are the nearest relatives of the deceased and the complainant. 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. 14. Heard Ms. Jirga Jhaveri, learned APP for the respondent - State. 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. 14. Heard Ms. Jirga Jhaveri, learned APP for the respondent - State. She has contended that this is not a case of acquittal but prima facie prosecution has produced circumstantial evidence in support of its case. She has read panchnama and contended that through oral version of the Investigating Officer contents of the panchnama are proved beyond reasonable doubt. She has contended that Investigating Officer has not collected blood sample of the present appellant - accused and it was not sent to FSL for analysis, but so far as negligence in investigation is concerned, present appellant accused cannot be acquitted from the charges levelled against him. She has relied on the decision in the case of Govindaraju @ Govind v. State by Sriramapuram Police Station, (2012) 4 SCC 722 , wherein Court has held that through evidence of the Investigating officer contents of the panchnama can be proved. She has contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. Therefore also, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed. 15. She has contended that sufficient corroborative piece of evidences are produced on record. She 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. She has, therefore, prayed to confirm the judgment and order of the learned Judge. 16. 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. Looking to the evidence of the witnesses it appears that in the present case prosecution has not cited any eyewitness. Even from the evidence of the witnesses prosecution could not produce any evidence to show that present appellant has committed said grievous offence. From perusal of evidence it appears that Investigating Officer has not bothered to collect blood sample of the present appellant to support the opinion of the serological report. Even from the evidence of the witnesses prosecution could not produce any evidence to show that present appellant has committed said grievous offence. From perusal of evidence it appears that Investigating Officer has not bothered to collect blood sample of the present appellant to support the opinion of the serological report. Even from the recovery panchnama of muddamal prosecution could not produce any cogent evidence in support of its case. We have minutely perused observations made by the learned trial Judge and we have found that prosecution could not produce any prima facie evidence to involve present appellant in the said offence. We are in full agreement with the arguments advanced by the learned counsel for the present appellant that learned Judge has committed grave error in convicting the present appellant in the said offence. We have found sufficient reasons to allow present appeal in favour of the present appellant in which prosecution could not prove its case beyond reasonable doubt against the present appellant. We are of the opinion that sufficient doubt is created from the evidence of the prosecution case. 17. In the result, the appeal deserves to be allowed and it is allowed accordingly. Conviction and sentence of appellant accused imposed vide judgment and order dated 29.10.2010 by the learned Additional Sessions Judge, Fast Track Court, Bharuch Camp at Ankleshwar, in Sessions Case No.50 of 2010 is set aside. Fine amount, if any, paid be refunded to the appellant. The bail bond, if any, shall stand discharged. 18. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal allowed.