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2016 DIGILAW 122 (GUJ)

Jivanbhai Rajabhai Bhaarwad v. State of Gujarat

2016-01-18

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the judgment and order dated 01.10.2007 passed by the learned Presiding Officer & Additional Sessions Judge, 5th Fast Track Court, Ahmedabad (Rural) in Sessions Case No. 137/2006 whereby the appellant-original accused has been convicted for the offence punishable under Section 302 of Indian Penal Code and has been sentenced to undergo imprisonment for life and for the offence punishable under Section 201 of the Indian Penal Code, he has to undergo imprisonment for life and further directed that all the above sentences are ordered to run concurrently. 2. It is the case of the prosecution that Ghanshyambhai Rupsangbhai Koli Patel - husband of the complainant Vilasben Ghanshyambhai @ Begi Rupsangbhai Koli Patel was working with accused as driver plying tractor of accused and doing labour work with him as daily worker at the rate of Rs. 50/- per day but said amount was not being paid regularly, huge outstanding amount of salary from accused by the deceased. It is the case of the prosecution that about 20 days ago prior to the incident the accused and deceased during quarrel taken place with Harijan Bhanabhai Bijalbhai Patel, had beaten said Bhanabhai Bijalbhai wherein criminal case was filed against deceased and other bharwads including accused by opposite party and in that case the deceased had been arrested. 2.1 It is further case of the prosecution that on or about 03.06.2006 the accused came to the house of deceased early in the morning at about 8:00 a.m., and in presence of Vilasben w/o deceased, the accused asked the deceased to accompany with him to get the tractor released from Bavla Police Station, District Ahmedabad. At that time the deceased requested the accused to assist financially because of delivery time of his wife - complainant coming near, and in alleged compliance of request of deceased to assist financially, the accused again asked the deceased to go with him for payment of money. Thereafter the accused induced the deceased to accompany with him and took the deceased away with him from the house of deceased in presence of complainant Vilasben. Thereafter the accused induced the deceased to accompany with him and took the deceased away with him from the house of deceased in presence of complainant Vilasben. Thereafter on same day at late night at about 12:00 the accused came and enquired with the wife of the deceased as to whether the deceased has come or not, and in reply thereto, the wife of deceased informed him that her husband did not come. That on the second day of incident i.e. 04.06.2006 in the morning the accused came to complainant's house and enquired whereabouts of deceased as to whether the deceased has reached to home or not. At that time the complainant replied to the accused that the accused himself told the complainant on previous day i.e. 03.06.2006 in the night that the deceased was coming late behind him as the deceased has got down in mid-way and the accused asked again whereabouts of deceased on next day. The complainant again asked the accused that he is the only person to say whereabouts of her husband because her husband had gone with the accused since previous day i.e. 03.06.2006 at about 9:00 a.m. onwards and the deceased has not turned up. 2.2 It is further case of the prosecution that the accused had replied to the complainant that he will search the deceased, but due to her inability to search, she requested the accused to go with her uncle-in-law namely Chandubhai who happens to be uncle of deceased. Thereafter the accused and Chandubhai went to search the deceased at about 12:00 p.m. at Bavla and thereafter at about 16:00 p.m. on same day i.e. 04.06.2006 the complainant came to know about the fact of death of her deceased husband Ghanshyambhai and the dead body of the deceased was found from the Sim of Village Salajda, Near Village Bavla, District Ahmedabad from the telephone received from police in her village. 2.3 It is the further case of the prosecution that thereafter her brother-in-law, mother-in-law and other relatives went to identify the dead body of her husband Ghanshyambhai whereby all of them came back with dead body of her husband, and on seeing dead body, she found severe and fatal head injury on back of the head resulting into his death. 2.3 It is the further case of the prosecution that thereafter her brother-in-law, mother-in-law and other relatives went to identify the dead body of her husband Ghanshyambhai whereby all of them came back with dead body of her husband, and on seeing dead body, she found severe and fatal head injury on back of the head resulting into his death. It is the further case of the prosecution that the accused wanted to get rid of deceased because of repeated demand of outstanding amount due and payable by the accused to the deceased and seeking financial assistance from time to time on account of pregnancy of his wife by the deceased from him or for the reasons best known to the accused in connection with his crime committed by him. Thereafter the complainant filed the complaint against the appellant-accused for causing the death of her husband before Bavla Police Station being I C.R. No. 88 of 2006 for the offence punishable under Section 302 and 201 of the Indian Penal Code. Necessary investigation was carried out and the statements of witnesses were recorded. At the end of investigation, chargesheet was filed against the accused before the trial Court. However, being a sessions triable offence, the case was committed to Sessions Court and trial was initiated. 3. During the trial, the prosecution examined the following witnesses: Sr. No. Name if the witnesses Exh. No. 1 Dr. Sandip Ghansyambhai Katudiya (P.W.1) - who performed P.M. of deceased 8 2 Vishnubhai Ramanbhai Patel (P.W.2) - panch witness of panchnama of place of offence 12 3 Dayarambhai Valjibhai Patel (P.W.3) - panch witness of panchnama of recovery of clothes of accused 17 4 Ramjibhai Gafurbhai Koli Patel (P.W.4) - panch witness of panchnama of recovery of tickets of S.T. Bus 18 5 Baldevbhai Sagrambhai Patel (P.W.5) - panch witness of panchnama at Exh. 19 20 6 Bhikhabhai Mangabhai Koli Patel (P.W.6) witness 21 7 Nazirhusein Ibrahimbhai Mansuri (P.W.7) – panch witness of panchnama of recovery of cloths of deceased Ghansyambhai 23 8 Jethbhai Varsingbhai Patel (P.W.8) witness 25 9 Shantibhai Vashrambhai Patel (P.W.9) – panch witness of panchnama at Exh.27 26 10 Sakarchand Rupsingbhai Patel (P.W.10) witness 28 11 Raimalbhai Chamanbhai Koli Palet (P.W.11) – eye witness who last  seen together 29 12 Mehmudhusein Allarakha Mansuri (P.W.12) – panch witness of panchnama at Exh.23 31 13 Vilasben Ghansyambhai Koli Patel (P.W.13) – complainant who is widow of deceased. 32 14 Majuben Rupsingbhai Koli Patel (P.W.14) – mother of deceased 34 15 Bababhai Dharamsinhbhai Patel (P.W.15) – witness who is sarpanch of the village where the deceased and accused were residing. 36 16 Arvindbhai Haribhai Parmar (P.W.16) – conductor of S.T. Bus 37 17 Prashant Narendrabhai Das (P.W.17) – witness 39 18 Sagarbhai Kamabhai Patle (P.W.18) – witness 40 19 Ransinhbhai Laljibhai Koli Patel (P.W.19) – witness 41 20 Bhanabhai Bijalbhai Makwana (P.W.20) – witness who last seen together 42 21 Lakhabhai Chhelabhai Makwana (P.W.21) – father-in-law of deceased 43 22 Mansukhbhai Lakhabhai Patel (P.W.22) brother-in-law of deceased 44 23 Chinubhai Karmanbhai Bharwad (P.W.23) – panch witness of Inquest Panchnama of deceased at Exh.47 46 24 Dr. Shivgiri Purshotamgiri Gosai (P.W.24) – Scientific officer of F.S.L. who had done brain finger print test of accused 48 25 Omkarnath Shivhari Tiwari (P.W.25) – police witness who carried on investigation 53 26 Gagandip Yogindersing Gambhir (P.W.26) – Investigating Officer 60 4. The prosecution has produced the following documentary evidence. Sr. No. List of the documents Exh. Shivgiri Purshotamgiri Gosai (P.W.24) – Scientific officer of F.S.L. who had done brain finger print test of accused 48 25 Omkarnath Shivhari Tiwari (P.W.25) – police witness who carried on investigation 53 26 Gagandip Yogindersing Gambhir (P.W.26) – Investigating Officer 60 4. The prosecution has produced the following documentary evidence. Sr. No. List of the documents Exh. No. 1 Complaint 33 2 Suchi Patra – police wardhi 54 3 Information given by P.W.46 Chinubhai Karmanbhai Bharwad about the dead body of deceased 47 4 Inquest Panchnama 14 5 Panchanama of place of offence 12 6 Panchanama of recovery of clothes of accused 17 7 Panchnama of recovery of clothes of deceased 27 8 Panchnama of suspect 23 9 Panchnama of tickets of S.T. Bus 19 10 Ravangi note of PSI by which FSL investigation mobile van on receiving dead body of deceased 56 11 Police Yadi to make P.M. report 10 12 P.M. Report 9 13 Letter of ASP  addressed of FSL for lie detection test of accused 49 14 Letter of ASP addressed of FSL for brain finger test of accused 50 15 Ravangi note by which the clothes of suspect were sent to FSL 55 16 Polygraph report of FSL 51 17 Brain finger print report of FSL 52 18 Chits on which the signatures of panchas were taken by police at the time of recovery of muddamal articles nos. 5, 6 & 7 57, 58 & 59 19 Letter of FSL 6/7 20 FSL Report of Muddamal Article 5 6/8 21 FSL Report 6/9 22 Letter of ASP with regard to Hypnotism Test of suspect 6/11 23 Receipt of FSL 6/14 24 Report of FSL of Muddamal Parcel No. 1 6/15 25 Receipt of FSL of Muddamal Parcel No. 5 6/21 26 Primary report of investigation of site of crime by FSL Van. 6/22 5. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 6. Mr. Sudhanshu Patel, learned advocate for the appellant-accused has contended that there are serious infirmities in the evidence of the prosecution. 6/22 5. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 6. Mr. Sudhanshu Patel, learned advocate for the appellant-accused has contended that there are serious infirmities in the evidence of the prosecution. It is contended that the complainant Vilasben had seen the present appellant-accused alongwith the deceased only in the morning of 3rd June, 2006, and thereafter twice the accused had gone to his place but the deceased whereabouts were not found. It is further contended that the evidence of P.W.9, 11, 18 and 19 which was strongly relied upon by the prosecution and the learned Judge, for which the theory of last seen together is not conclusive proof. Learned counsel for the appellant-accused further contended that the case is based on circumstantial evidence and the prosecution has miserably failed to prove the case against the accused. It was contended that originally the criminal case No. 33 of 2006 was registered under Cr.P.C. and the post-mortem was done on 04.06.2006. However, in the post-mortem report it was written 04.07.2006 and some of the panchnama which were prepared are concocted and created one and therefore they are established beyond reasonable doubt. 6.1 Learned counsel for the appellant has further taken us through the oral as well as documentary evidence and contended that, if Exh. 19 is seen, the name of the second witness is shown as Mansukhbhai Sagarambhai whereas there is a signature of Baldevbhai Sagarambhai and it was prepared on 17.06.2006 whereas the witness has stated that the second witness has signed the same and therefore the name differs in the panchnama itself. He has also taken through the complaint for which it has been contended that the complaint was dictated by elder brother of the deceased and she has not lodged the complaint. 6.2 Learned counsel for the appellant has further contended that the brain mapping test which was carried out by the Scientific Officer, Forensic Psychology Division, D.F.S. Gandhinagar, Gujarat on 20.07.2006 which read thus: "After this test, corroboratory evidences if available in the course of your investigation in support of Jivanbhai's involvement in the crime, it is desirable to repeat his BFP test with new available facts". He has contended that neither second test was carried out nor corroborative piece of evidence is available on the record and the evidence which has come on record does not support the case of the prosecution. It is also contended that no blood stain was found from the clothes of the accused and there is no iota of evidence against the appellant and that the prosecution case is based upon circumstantial evidence and therefore prosecution has failed to establish the chain of circumstances leading to the guilt of appellant. He, therefore, submitted that the appellant deserves to be acquitted by granting him benefit of doubt. 7. Ms. C.M. Shah, learned APP has supported the impugned judgment and order and submitted that the Court below has appreciated the evidence on record in its proper perspective and has rightly convicted the accused for the crime in question. She has relied upon the decision in the case of Shyamal Ghosh v. State of West Bengal, [ (2012) 7 SCC 646 ] particularly para 63, 72 to 77 which reads as under: "63. Then it was also contended that circumstantial evidence is a very weak evidence and in the present case, the complete chain having not been established, the accused are entitled to acquittal. This argument again does not impress us. Firstly, we have discussed in some details that this is not purely a case of circumstantial evidence. There are eye-witnesses who had seen the scuffling between the deceased and the accused and the strangulation of the deceased by the accused persons and also the loading of the mutilated body parts of the deceased contained in gunny bags into Maruti Van. Evidence establishing the 'last seen together' theory and the fact that after altercation and strangulation of the deceased which was witnessed by PW8, PW17 and PW19, the body of the deceased was recovered in pieces in presence of the witnesses, have been fully established. To a very limited extent, it is a case of circumstantial evidence and the prosecution has proved the complete chain of events. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body is quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body is quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard. 72. Then, it is also contended and of course with some vehemence that where the prosecution is relying upon the last seen theory, it must essentially establish the time when the accused and deceased were last seen together as well as the time of the death of the deceased. If these two aspects are not established, the very application of the 'last seen theory' would be impermissible and would create a major dent in the case of the prosecution. In support of this contention, reliance is placed upon the judgment of this Court in the case of S.K. Yusuf v. State of West Bengal, (2011) 11 SCC 754 , AIR 2011 SC 2283 , 2011 AIR SCW 3748. 73. Application of the 'last seen theory' requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. This Court in para 21 of Yusuf's case (supra) while referring to the case of Mohd. Azad alias Samin v. State of West Bengal, (2008) 15 SCC 449 , AIR 2009 SC 1307 , 2009 AIR SCW 752 and State through Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109 , AIR 2011 SC 1017 , 2011 AIR SCW 1916, held as under:- "21. Azad alias Samin v. State of West Bengal, (2008) 15 SCC 449 , AIR 2009 SC 1307 , 2009 AIR SCW 752 and State through Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109 , AIR 2011 SC 1017 , 2011 AIR SCW 1916, held as under:- "21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen 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. (Vide Mohd. Azad v. State of W.B and State v. Mahender Singh Dahiya)". 74. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the Court to examine that where the last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred. 75. In the facts of the present case, the factor of time does not play such a significant role because it is a case where there were eye-witnesses to the strangulation of the deceased by the accused, and therefore, it may not be expected of the prosecution to show the time of last seen and death, by leading independent evidence. PW-17 is the witness to the altercation between the accused and the deceased. PW-8 is the witness to the strangulation of the deceased by the accused persons. Besides, PW-7, PW-9 and PW-11 are witnesses to the loading of the gunny bags containing human body parts in the Maruti Van by the accused. Thus, these facts have been established by independent witnesses. None of these witnesses is a relation or a witness inimical towards the accused. 76. It has come on record that the occurrence had taken place on 29th September, 2003 at midnight. Thus, these facts have been established by independent witnesses. None of these witnesses is a relation or a witness inimical towards the accused. 76. It has come on record that the occurrence had taken place on 29th September, 2003 at midnight. There may be some variation (5 to 10 minutes) in the time stated by different witnesses as to when the occurrence took place. From their statements, it is clear that by and large, they have given approximately the same time with reasonable variation, which is primarily for the reason that the accused persons and deceased were seen by the witnesses at different places. We have already held that these discrepancies do not amount to any material contradiction. Thus, the time of death stands clearly established between 11.30 p.m. to 12.00 a.m. on 29th/30th September, 2003. Thereafter, it was the act of disposal of the body of the deceased which attracts the offence under Section 201, IPC. 77. As far as the death of the deceased is concerned, there was hardly any time gap between the two incidents, i.e. the last seen alive and the fact of death of the deceased becoming known. All the events occurred between 11.00 p.m. to 12.00 a.m. at midnight of 29th September, 2003. Thus, the contention raised on this ground is entirely without any merit." Learned APP further submitted that the evidence establishing the last seen together theory and the evidence of panchnama and the other evidences which were recovered from the accused is sufficient to prove the guilt against the accused. She therefore submitted that the present appeal deserves to be dismissed. 8. We have heard learned counsel for both the sides and perused the documents on record. It is a matter of fact that there is no direct evidence available to connect the appellant-accused with the offence in question. The cause of death as per the P.M. Report dated 04.04.2006 reads as under: "17. (1) CLW present over occipital region, shape regular size 6 cm long x 2.5 cm in width x deep hp to brain bleeding present. (2) Abrasion present over left whist joint posterior side, shape irregular, size 3 cm x 1.5 cm is width bright red in colour. (3) Abrasion over left knee joint present over anterior side, shape irregular, size 3.5 cm long x 2 cm in width x bright red in colour. (2) Abrasion present over left whist joint posterior side, shape irregular, size 3 cm x 1.5 cm is width bright red in colour. (3) Abrasion over left knee joint present over anterior side, shape irregular, size 3.5 cm long x 2 cm in width x bright red in colour. (4) Abrasion over right knee joint, anterior side, shape irregular, size 1.5 cm long x 1 cm long width, colour bright red in colour, sand present on both the hands. 19. Compound fracture present alongwith wound, not completely alongwith wound. Depressed fracture present. Length of fracture is appx. 3.5 cm long severe subarachnoid x sub dural haemorrhage present over occipital as well as tear of brain tissue present over occipital cob. Length of tear is apprx. 1 cm. Slight contusion of brain is present over frontal lobe." It is required to be noted that as per the P.M. Report the cause of death and the other injury which was caused to the deceased is due to cardio-respiratory arrest and due to intracranial haemorrhage and therefore it can be said that the cause of death of the deceased is culpable homicide not amounting to murder. The question regarding involvement of the accused that on 03.06.2006 in the morning the accused went to get the tractor released from the Bavla Police Station and in mid way the deceased met the accused and then they went to Bavla together by Chhakda Rickshaw and the deceased got down and separated from accused at Dhedhal Chokadi Cross Roads and then the accused met the police in Bavla Police Station and then he was informed to go to Dholka with application and thereafter when he came outside the police station, the deceased was talking with police and thereafter the deceased went to the house of his brother and thereafter the accused waited at the office of Dy. S.P. and then he came to bus stand and thereafter he discussed with Satsangio and then he returned by bus which bus came Salajada at about 9:00 o'clock and then he got down Bavla and therefrom he went to Dhedhal Chokadi at about 10:30 o'clock and from Dhedhal Chokadi he returned by Chhakada rickshaw at 11:30 in night at Upardal. S.P. and then he came to bus stand and thereafter he discussed with Satsangio and then he returned by bus which bus came Salajada at about 9:00 o'clock and then he got down Bavla and therefrom he went to Dhedhal Chokadi at about 10:30 o'clock and from Dhedhal Chokadi he returned by Chhakada rickshaw at 11:30 in night at Upardal. However, from the evidence it has come on record that they were seen at the bus stand of Village Upardal and thereafter they were seen to Dholka Bus Stand but neither the bus conductor nor any witnesses have identified that they were seen last together at Dholka Bus Stand. It is also required to be noted that the way bill is also not produced on record of the case. It is also required to be noted that the entire prosecution case is based upon circumstantial evidence. In above view of the matter we find that the Court below has committed serious error in law and on facts in convicting the appellant-accused for the crime in question. In our opinion, considering the serious discrepancies in the prosecution case, benefit of doubt deserves to be given to the appellant-accused by acquitting him of all the charges framed against him. 9. In the result, the appeal is allowed. The impugned judgment and order dated 01.10.2007 passed by the learned Presiding Officer & Additional Sessions Judge, 5th Fast Track Court, Ahmedabad (Rural) in Sessions Case No. 137/2006 is quashed and set aside. The appellant-original accused is acquitted of all the charges framed against him by granting him the benefit of doubt. The appellant is on bail, and therefore, his bail bond stand cancelled. Records & proceedings, if lying here, be sent to the Court below forthwith.