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2016 DIGILAW 16 (GUJ)

Vasim Amin Bhamani v. State of Gujarat

2016-01-05

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. The present appeal is filed against the judgment and order dated 19.4.2006 passed by learned Additional Sessions Judge, Fast Track Court No. 5, Kachchh at Bhuj in Sessions Case No. 30 of 2005. By the impugned judgment, learned trial Judge has convicted the accused for the offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and sentenced him to suffer imprisonment for life and fine of Rs. 5,000/-, and in default of payment of fine, simple imprisonment for three months was imposed. Learned trial Judge has also convicted the accused for the offence under Section 135 of the Bombay Police Act and sentenced him to suffer simple imprisonment for one month and to pay fine of Rs. 100/- and, in default of payment of fine, simple imprisonment for seven days was awarded. Being aggrieved by the impugned judgment, the accused has preferred present appeal. 2. Learned advocate, Mr. Aamirkhan Pathan is appearing for the complainant. Registry to accept his Vakalatnama on behalf of the complainant. 3. The facts in brief giving rise to the filing of present appeal are as under: "3.1 It is the case of the prosecution that on 16.5.2005 in the morning between 9.30 to 9.45, when the deceased was going to his brother-in-law's house, at that time, with an intention to kill the deceased the accused had attacked him with deadly weapons and caused injuries on the right side portion of his body. Such injuries resulted into the death of the deceased. The cause for the incident was said to be a family dispute and the deceased had refused to compromise with the accused and, therefore, the accused got angry. The accused was also charged with the offence punishable under Section 135 of the Bombay Police Act for using deadly weapons in public place. 3.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 3.3 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 3.3 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. 1 Complainant-Badruddin Umar Qureshi 6 2 Imtiyaz Abdulgafur Qureshi 8 3 Iqbal Kasam Chaki 9 4 Dr. Jitendra Vasrambhai Patankar 10 5 Abdul Alimamad Qureshi 16 6 Panch-Sahejad Aadam Node. 17 7 Panch-Abdulgani Ibrahim Brer. 23 8 Amaben Aamad Koli 32 9 Omprakash Lalitprasad Sharma-IO 36 3.4 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Original complaint. 7 2 Police yadi. 11 3 Copy of inquest panchnama along with postmortem form. 12 4 Postmortem report. 13 5 Certificate regarding reason of death. 14 6 Case papers. 15 7 Panchnama. 18 8 Slip of muddamal article 7. 19 9 Slip of muddamal article 8. 20 10 Slip of muddamal article 9 (T-shirt) 21 11 Slip of muddamal article 9 (pant). 22 12 Inquest panchnama. 25 13 Panchnama of the place. 26 14 Panchnama of the clothes. 27 15 Panchnama of seizure of blood sample. 28 16 Panchnama of blood sample of the accused. 29 17 Police yadi. 30 18 Map. 31 19 Copy of janvajog entry. 33 20 Copy of extract of FIR. 34 21 Copy of station diary entry. 35 22 Letter of blood sample. 37 23 Yadi of blood sample. 38 24 Notification. 39 25 Yadi of FSL. 40 26 Receipt of the muddamal received by FSL. 41 27 Letter of FSL, Junagadh. 42 28 Report of FSL. 43 29 Serological report of FSL. 44 3.5 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court." 4. Mr. J.M. Panchal, learned Senior Advocate appearing for the appellant-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant-accused. He has taken us through the medical evidence and postmortem report of the deceased person. Mr. J.M. Panchal, learned Senior Advocate appearing for the appellant-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant-accused. He has taken us through the medical evidence and postmortem report of the deceased person. He submitted that the so-called eyewitness to the incident, Badruddin Kureshi has not seen the incident in question. It is submitted that the cloths of this witness were not stained with blood though it is stated by him that he had lifted the injured in bleeding condition and shifted him to the hospital. Therefore, this witness is not an eye witness. He also submitted that the only eye witness to the incident has turned hostile and the trial Court has committed an error in convicting the accused on the basis of the evidence of panch witness and other witnesses. He also submitted that there is no substantive piece of evidence connecting the accused with the offence. He has also taken us through the evidence of PW-2, Imtiyaz Abdulgafur Qureshi and PW-4, Dr. Jitendra Vasrambhai Patankar. He submitted that the present case is based on circumstantial evidence and the prosecution has failed to complete the chain, therefore, the accused is wrongly convicted by the trial Court. He also submitted that though the incident had happened in the market place, no independent witnesses have been examined by the prosecution. He also submitted that the parties have settled the dispute and affidavits of the brother and mother of the deceased are also produced on the record of this appeal. He, therefore, prays to allow this appeal by setting aside the conviction of the accused. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant-accused is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. She submitted that considering the evidence on record, the prosecution has proved the presence of the accused at the scene of offence and, therefore, he is rightly convicted by the trial Court. She submitted that considering the evidence on record, the prosecution has proved the presence of the accused at the scene of offence and, therefore, he is rightly convicted by the trial Court. She also submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused and, therefore, no interference is called for in the present appeal. 6. Mr. Aamirkhan Pathan, learned advocate for the complainant has submitted that the dispute is settled between the parties and he has produced on record the affidavits of the mother and the brother of the deceased, which are taken on record. As per the said affidavits, an amount of Rs. 3 Lacs is paid by the accused to the brother and mother of the deceased and they are having cordial relation with the accused. 7. We have heard Mr. J.M. Panchal, learned Senior Advocate for the appellant-original accused, Ms. C.M. Shah, learned APP for the State and Mr. Aamirkhan Pathan for the complainant. We have also gone through the impugned judgment as well as evidence on record. From the medical evidence and the statement of Dr. Jitendra Vasrambhai Patankar, Exh. 10, it is clear that the deceased died due to the injuries sustained by him and, therefore, this is a case of culpable homicide amounting to murder. However, considering the evidence on record, it is clear that the only eye witness to the incident has turned hostile and there is no substantial piece of evidence connecting the accused with the offence. In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. In the present case, there is no direct or substantial evidence connecting the accused with the offence and the evidence relied upon by the trial Court can be said to be corroborative evidence and on such evidence, conviction cannot be recorded. Therefore, we are of the opinion that the trial Court has committed an error in convicting accused for the offence punishable under Section 302 of IPC. Not only that the it has come on record that the parties have settled the dispute even during trial and the accused has paid Rs. 3 Lacs to the complainant side and affidavits in this regard are also filed in the present appeal. Hence, we are of the opinion that this Criminal Appeal is required to be allowed. 8. For the foregoing reasons, this appeal is allowed. The impugned judgment and order dated 19.4.2006 passed by learned Additional Sessions Judge, Fast Track Court No. 5, Kachchh at Bhuj in Sessions Case No. 30 of 2005 is quashed and set aside. The accused is acquitted of all the charges levelled against him. Bail bond, if any, stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.