Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 148 (GUJ)

State of Gujarat v. Dhanjibhai Abheji Gohil

2016-01-20

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Joint District Judge and Presiding Officer, 9th Fast Track Court, Nadiad in Sessions Case No. 121 of 2004, by which, the learned trial Court has acquitted the original accused for the offence under Sections 302 and 452 of the Indian Penal Code, the State has preferred by the present Criminal Appeal under Section 378 of the Code of Criminal Procedure. 2. As per the prosecution case on 15.03.2004 since respondent-accused was almost sick. Shakuben, Anandiben, Badhabhai, Vinubhai brought him to the place of Ghandabhai in Rickshaw. Along with Babubhai Ghandabhai Soda Parmar they went to village Kacchae to one which Doctor. On return journey, they again went to the house of Ghandabhai and after having dinner, they started for Anand. Complainant and other witnesses went to see him and during that time on 15.3.2004 at about 8.30 p.m. complainant's husband was about to sit for his dinner and at that time, electricity went off. Accused thought that from Jago Adivasi of Anand has followed him he hided himself in his house and on that misconception, he went to his house and took a knife and inflicted blows on Babubhai Ghandabhai Parmar on stomach region. Upon receiving these injuries, he was immediately took to the hospital and at 22.30 hours he succumbed to the injuries. Upon this fact, complaint came to be filed. 2.1. One Anandiben wife of Babubhai Gandabhai lodged the FIR being CR-I-66 of 2004 with Mahemdavad Police Station against the accused for the offence under Sections 452 and 302 of the Indian Penal Code against the accused. On the basis of which the investigation was carried out by the PSI, Raghubarsinh Mahoborsinh- PW No. 10. He visited the place of dead body at night. He drawn the inquest panchnama and sent the dead body for postmortem. He also drawn the panchnama of place of incident, he recorded the statement of the concerned witnesses. During the course of investigation, he also recovered the weapon used by the accused in commission of offence having bloodstain and also discovered/recovered the shirt which was owned by the accused at the time of commission of offence, from the place shown by the accused. He sent both the weapon as well as cloths to the FSL. During the course of investigation, he also recovered the weapon used by the accused in commission of offence having bloodstain and also discovered/recovered the shirt which was owned by the accused at the time of commission of offence, from the place shown by the accused. He sent both the weapon as well as cloths to the FSL. After conclusion of the investigation, the Investigating Officer filed charge sheet against the accused in the Court of learned JMFC for the offence punishable under Sections 302 and 452 of the Indian Penal Code. As the case was exclusively triable by the Court of Sessions, which was numbered as Sessions Case No. 121 of 2004 and thereafter it was sent to the Court of learned Joint District Judge and Presiding Officer, 9th Fast Track Court, Nadiad. 2.2. The learned trial Court framed the charge against the accused at Exh. 4 for the offence punishable under Sections 302 and 452 of the Indian Penal Code. The accused pleaded not guilty and therefore, he came to be tried by the learned trial Court for the aforesaid offence. 2.3. To prove the case against the accused, prosecution examined following witnesses: PW No. Name of prosecution Witness Exh. No. 1 Anandiben Babubhai – complainant 22 2 Maheshbhai Gandabhai 25 3 Dineshbhai Gandabhai 26 4 Budhabhai Mohanbhai Parmar 28 5 Rajubhai Babubhai Parmar 29 6 Madhavbhai Khodabhai 30 2.4. To the aforesaid witnesses, the prosecution also brought on record the following documentary evidence:- Exh. No. Particulars 23 Complaint Given by the complaint. 09 Inquest Panchnama 10 Panchnama of place of offence 11 Panchnama of cloth of the deceased 12 Panchnama of the physical condition of the accused 38 Discovery panchnama of weapon used in the offence. 14 Postmortem Note. 15 Certificate of cause of death 39 Postmortem report. 40 Entry of FSL report. 41 Letter of Muddamal received by the FSL 42 Letter of FSL with respect of Muddamal 43 FSL report along with letter 44 Report of Serological Department, FSL 2.5. After closing purshis submitted by the prosecution, further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure. The accused denied having committed the offence. However, did not examine any witnesses in support of his defence. 2.6. After closing purshis submitted by the prosecution, further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure. The accused denied having committed the offence. However, did not examine any witnesses in support of his defence. 2.6. That on conclusion of the trial, by impugned judgment and order, the learned trial Court has acquitted the original accused for the offence, for which, he was tried mainly on the ground that no independent witnesses have been examined and discovery of the weapon and cloths having bloodstain are not proved. 2.7. Feeling aggrieved and dissatisfied with the judgment and order of acquittal passed by the learned trial Court, the State has preferred the present Criminal Appeal. 3. Ms. Moxa Thakkar, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has materially erred in acquitting the original accused for the offence under Sections 452 and 302 of the Indian Penal Code. 3.1. It is further submitted by learned APP appearing on behalf of the State that the learned trial Court has erred in not properly appreciating the evidence on record led before it in its true and proper perspective. It is further submitted by learned APP appearing on behalf of the State that the learned trial Court has materially erred in discarding the material witnesses who are eyewitnesses solely on the ground that there are some contradictions. 3.2. It is submitted that the learned trial Court has materially erred in doubting the entire incident. It is submitted that the learned trial Court has materially erred in not appreciating the deposition of Anandiben who specifically stated that she had seen the accused inflicting blows of knife. 3.3. It is further submitted that even in the present case, there is discovery of knife and shirt wore by the accused at the time of commission of offence having bloodstain of the deceased, which was at the instance of the accused. It is submitted that as per the serological report, blood group "A" was found, which was of the deceased. It is submitted that there is no explanation whatsoever by the accused with respect to the same. It is submitted that as per the serological report, blood group "A" was found, which was of the deceased. It is submitted that there is no explanation whatsoever by the accused with respect to the same. It is submitted that as such discovery of the weapon and shirt at the instance of the accused has been proved by prosecution by examining panch witness as well as Investigating Officer. It is further submitted that the deposition of Anandiben - eyewitness and the injuries on the deceased by the knife has been corroborated by the medical evidence. It is submitted that therefore, findings recorded by the learned trial Court are perverse and/or contrary to the evidence on record and therefore, acquittal recorded by the learned trial Court has resulted into miscarriage of justice and therefore, it is required to be interfered with the order passed by the learned trial Court and convicted the original accused for the offence, for which he was tried. Making above submissions and relying upon the following decisions, it is requested to allow present appeal. "(A). Pulukuri Kottaya and others vs. Emperor reported in AIR (34) 1947 Privy Council 67 (B). Harivadan Babubhai Patel vs. State of Gujarat reported in (2013) 7 SCC 45 . (C). State of Maharashtra vs. Damu reported in 2000 SCC (Cri) 1088." 4. Present appeal is vehemently opposed by Shri Manraj Barot, learned advocate for the original accused. It is submitted by Shri Barot, learned advocate for the original accused that in the present case findings recorded by the learned trial Court while acquitting original accused are on appreciation of evidence and therefore, the present appeal which is against the judgment and order of acquittal be dismissed. It is further submitted by Shri Barot, learned advocate for the original accused that from the evidence it emerges that one Chakiben was present and not Anandiben. It is submitted that Anandiben is posed as eyewitness, however in the evidence the name of Chakiben is disclosed and said Chakiben has not been examined by the prosecution. It is submitted that therefore, non examination of Chakiben is vital to the case of prosecution. 4.1. It is submitted that Anandiben is posed as eyewitness, however in the evidence the name of Chakiben is disclosed and said Chakiben has not been examined by the prosecution. It is submitted that therefore, non examination of Chakiben is vital to the case of prosecution. 4.1. It is further submitted by Shri Barot, learned advocate for the original accused that even in the cross of the Investigating Officer, it emerges that there is some lacuna in the investigation and therefore, the benefit of the same shall go to the accused. 4.2. It is further submitted by Shri Barot, learned advocate for the original accused that even the discovery of the weapon and cloth of the accused having bloodstain is doubtful looking to the deposition of the panch witness. It is submitted that therefore, no reliance can be placed upon the discovery of the weapon and/or acquittal of the accused. Making above submissions, it is requested to dismiss the present appeal. 5. Heard the learned advocates for the respective parties at length. We have re-appreciated the entire evidence on record. We have gone through the reasoning recorded by the learned trial Court while acquitting the original accused. 5.1. At the outset, it is required to be noted that as per medical evidence and the deposition of the doctor and the postmortem report, deceased died because of the excessive bleeding and the injuries sustained by him due to sharp cutting weapon. Therefore, the death of the deceased was homicidal death. 6. In the present case there are two eyewitnesses who fully supported the case of the prosecution i.e. PW No. 3- Dineshbhai Gandabhai who has been examined at Exh. 26 and original complainant - PW No. 1- Anandiben who has been examined at Exh. 22. Both of them have categorically stated in the deposition that they have seen the respondent- original accused giving the blows by knife on the deceased. Both of them have been fully and thoroughly cross examined by the defence, however both of them fully supported the case of the prosecution and nothing adverse to the prosecution has been brought out on record. Both the witnesses are natural witnesses and are found to be trustworthy and reliable and therefore, there is no reason to discard their deposition. 6.1. Both the witnesses are natural witnesses and are found to be trustworthy and reliable and therefore, there is no reason to discard their deposition. 6.1. It is required to be noted that in fact in the present case there is recovery of weapon used by accused in commission of offence, which has been recovered at the instance of the accused, having bloodstain of the deceased. The postmortem of the discovery/recovery of the knife at the instance of the accused has been proved by examining the Investigating Officer. The Investigating Officer fully supports the panchnama of recovery of the weapon at the instance of the accused. No enmity against the Investigating Officer has been alleged. Therefore, this is discovery under Section 27 of the Evidence Act. As observed herein above, injury by the sharp cutting weapon has been corroborated by the medical evidence and the deposition of doctor. On the knife, bloodstain of the deceased -"A" Group has been found which is supported by Serological report from the FSL. In the 313 statement, no explanation whatsoever is given by the accused. As observed herein above, the panchnama of recovery of weapon under Section 27 of the Evidence Act has been duly proved by examining Investigating Officer. At this stage, decision of the Hon'ble Supreme Court in the case of Munish Mubar vs. State of Haryana reported in (2012) 10 SCC 464 is required to be referred to. In para 31 and 32, the Hon'ble Supreme Court has observed as under: "31. The issue of non-examination of independent witnesses and reliance upon the deposition of police officials as "Panch witnesses" was considered at length by this Court in State, Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1 SCC 652 , wherein this Court held as under: "....But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust.........At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions." It is obligatory on the part of the accused, while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation, even in a case of circumstantial evidence, so to decide, whether or not, the chain of circumstances is complete. The aforesaid judgment has been approved and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC 748 . (See also: The Transport Commissioner, A.P., Hyderabad & Anr. v. S. Sardar Ali & Ors., AIR 1983 SC 1225 ). 32. The aforesaid judgment has been approved and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC 748 . (See also: The Transport Commissioner, A.P., Hyderabad & Anr. v. S. Sardar Ali & Ors., AIR 1983 SC 1225 ). 32. In view of the aforesaid discussion, it is evident that in spite of the fact that in case there is no independent witness of recoveries and panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examination to Inspector Shamsher Singh (P.W. 21) as why the independent person was not made the panch witness. More so, it was the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.P.C.., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established." 6.2. The judgment of Privy Council in the case of Pulukuri Kottaya and others vs. Emperor reported in AIR (34) 1947 Privy Council 67 as well as decision of the Hon'ble Supreme Court in the case of Harivadan Babubhai Patel vs. State of Gujarat reported in (2013) 7 SCC 45 , will also acknowledge the issue involved in the present case. It is settled principle that statement made by the accused before the police office which amount to confession is barred under Section 25 of the Evidence Act. However, Section 27 of the Evidence Act lifts the same and the Hon'ble Apex Court in the case of State of Maharashtra vs. Damu, reported in 2000 SCC (Cri) 1088 would be applicable to the facts of the case. The Hon'ble Apex Court in para 29, reads as under: "29. However, Section 27 of the Evidence Act lifts the same and the Hon'ble Apex Court in the case of State of Maharashtra vs. Damu, reported in 2000 SCC (Cri) 1088 would be applicable to the facts of the case. The Hon'ble Apex Court in para 29, reads as under: "29. It is settled principle of law that statements made by an accused before a police official which amount to confession is barred under Section 25 of the Evidence Act. This prohibition is, however, lifted to some extent by Section 27which reads thus: "27. How much of information received from accused may be proved:- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved." In the light of Section 27 of the Evidence Act, whatever information given by the accused in consequence of which a fact is discovered only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information." 7. At this stage, it is also required to be noted that even in the present case there was recovery of cloths having bloodstain on the shirt of the accused and bloodstain on his shirt has not been explained by the accused in his statement under Section 313 of the Code of Criminal Procedure. 8. Despite the above clinching evidence, the learned trial Court has acquitted the original accused for the serious offence under Sections 302 and 454 of the Indian Penal Code, which has resulted into misc-carriage of justice. The findings recorded by the learned trial Court are as such perverse and contrary to the evidence on record, as observed herein above. 8. Despite the above clinching evidence, the learned trial Court has acquitted the original accused for the serious offence under Sections 302 and 454 of the Indian Penal Code, which has resulted into misc-carriage of justice. The findings recorded by the learned trial Court are as such perverse and contrary to the evidence on record, as observed herein above. Under the circumstances, the impugned judgment and order of acquittal cannot be sustained and same deserves to be quashed and set aside, more particularly, in view of the deposition of PW Nos. 1 and 3 and the medical evidence and the discovery of knife and the shirt of the deceased having bloodstain which are discovered at the instance of the accused. As observed herein above, both the eyewitness i.e. PW Nos. 1 and 3 whose presence at the time of commission of offence is natural have fully supported the case of the prosecution. 9. In view of the above and for the reasons stated above, present Criminal Appeal is allowed. Respondent herein - original accused is hereby held guilty for the offence punishable under Sections 302and 452 of the Indian Penal Code, 1860 and is sentenced to undergo life imprisonment for the offence punishable under Section 302 of the Indian Penal Code with fine of Rs. 5000/- and in default of payment of fine to undergo further 3 months' RI and is also directed to undergo 5 years' RI with fine of Rs. 5000/- and in default of payment of fine to undergo further 3 months' RI for the offence punishable under Section 452 of the Indian Penal Code. Both the sentences to run concurrently. Time to surrender to the original accused to undergo the sentence as per the present judgment and order is granted upto 22.02.2016. Present Criminal Appeal is allowed accordingly. Record & Proceedings of the case to be sent to the learned Trial Court forthwith.