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Gujarat High Court · body

2016 DIGILAW 1725 (GUJ)

Vaghaji Hathaji Thakore v. State of Gujarat

2016-08-11

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. Present appeal assails the judgment and order dated 15/03/2012, passed by the learned 3rd Additional Sessions Judge, Mahesana camp: Visnagar, in Sessions Case No. 105 of 2011, whereby, the appellant herein - original accused came to be convicted for the offence punishable under Sections 304 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and sentenced to undergo rigorous imprisonment (RI) for ten years and a fine of Rs. 5,000/- and in default of payment of fine, to undergo, further imprisonment for one year. 2. Filtering the unnecessary details the facts of the prosecution case are that the appellant herein - original accused allegedly had illicit relations with the wife of the brother of the complainant and as the brother of the complainant was a constraint in the said relations, the accused, allegedly on 26/07/2011 at about 08:30 a.m., near M.N. College, Opposite GEB office, on the road, assaulted the brother of the complainant with a big knife giving several blows on the different parts of the body and thereby, caused his murder. Thus, the accused committed the alleged offence, for which a complaint came to be lodged against him. For the sake of convenience, the parties herein are, hereinafter, referred to as per their original status. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court. The trial Court framed charge against the accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S/n. Name of Witness Exh. 1 PW-1 Shantiji Raghuji Thakore 7 2 PW-2 Abhuji Babaji Thakore 9 3 PW-3 Divanji Javanji Thakore 12 4 PW-4 Kanaji Jaganji Thakore 13 5 PW-5 Moghaji Raghuji Thakore 14 6 PW-6 Hasmukhbhai Narayandas Raval 15 7 PW-7 Bharatji @ Bakaji Babuji Thakore 16 8 PW-8 Pravinji Anarji Thakore 17 9 PW-9 Dr. Mahendrabhai Amrutlal Limbachiya 21 10 PW-10 Bhupatji Mafaji Thakore 25 11 PW-11 Vishnubhai Leelachand Patel 27 12 PW-12 Sabalsinh Vaghubhai Sagar 32 13 PW-13 Kalaji Amaji Thakore 45 DOCUMENTARY EVIDENCE S/N. Document Exh. Mahendrabhai Amrutlal Limbachiya 21 10 PW-10 Bhupatji Mafaji Thakore 25 11 PW-11 Vishnubhai Leelachand Patel 27 12 PW-12 Sabalsinh Vaghubhai Sagar 32 13 PW-13 Kalaji Amaji Thakore 45 DOCUMENTARY EVIDENCE S/N. Document Exh. 1 Complaint 8 2 Inquest Panchnama 18 3 Panchnama of place of offence 19 4 Seizure panchnama of clothes put on by the deceased 20 5 PM Note 22 6 Cause of Death Certificate 23 7 Medical Certificate as to examination of accused 24 8 Panchnama of physical condition of accused 26 9 Discovery/Recovery Panchnama of weapon at the instance of the accused 29 10 Complaint lodged by the accused 33 11 Order as to registering NC 34 12 Depute Order 35 13 Report of Mobile FSL Van 36 14 Muddamal Despatch Note 37 15 FSL Receipt 38 16 Notification as to prohibition of use of weapons 39 17 Letter of FSL 40 18 Analysis Report 41 19 Serological Report 42 20 Letter of FSL 43 21 Report of physics Department 44 2.2 At the end of the trial, after recording the Further Statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard Ms. Kiran D. Pandey, the learned advocate for the appellant - original accused and Ms. Reeta Chandarana, the learned Additional Public Prosecutor for the respondent - State. 3.1 Ms. Pandey, the learned advocate for the accused, submitted that the trial Court has committed a grave error in convicting the accused; the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the accused. She took this Court through the oral as well as the entire documentary evidence on record and submitted that the case on hand rests on circumstantial evidence and whole chain of circumstances is not proved beyond reasonable doubt by any substantial piece of evidence and under the circumstances, the learned trial Judge has committed a grave error in believing the case of the prosecution and convicting the appellant -accused. She further submitted that most of the witnesses are the interested witnesses and no independent witnesses is examined by the prosecution. She submitted that the learned trial Judge has failed to consider the fact that the present complainant i.e. Shantiji Raghuji Thakore is not the eye-witness to the incident in question. Besides, it is a fact that the panchnama of place of offence at exh. 19 is not proved by the prosecution. She further submitted that the so-called panch-witnesses are the men of police and they have remained as panchs in many other cases and in that view of the matter, their evidence should not have been relied. Moreover, she submitted that the PM Report, exh. 22 and the deposition of panch-witness do not support the case of the prosecution. Moreover, the evidence adduced by the prosecution is neither consistent nor convincing and clear and therefore, the order of conviction and sentence is bad in law. The learned advocate for the accused further submitted that though the blood group of the deceased is stated to be 'A' group, however, nothing had been done so as to ascertain the same. She further submitted that the learned trial Judge has failed to consider the fact of material improvements at the stage of trial, which seriously affects the credibility of the prosecution case. Making above submissions, she submitted that when the case rests on the circumstantial evidence and no chain of circumstances is completed and proved by cogent and reliable evidence, the present appellant deserves benefit of doubt and requires to be acquitted by allowing the present appeal. 4. On the other hand, Ms. Chandarana, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. 4. On the other hand, Ms. Chandarana, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. She also took this Court to the relevant oral as well as documentary evidence on record and submitted that the prosecution has successfully proved its case against the accused beyond reasonable doubt and the whole chain of circumstances is found evenly and all the ingredients of the offence alleged have been proved and accordingly, there is no question of granting the benefit of doubt to the accused. Making above submissions, she requested to dismiss the present appeal as having no merits. 5. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. 5.1 Referring to the depositions of PW-1 Shantiji Raghuji Thakore at exh. 7, PW-2 Abhuji Babaji Thakore at exh. 9, PW-3 Divanji Javanji Thakore at exh. 12, PW-4 Kanaji Jaganji Thakore at exh. 13, PW-5 Moghaji Raghuji Thakore at exh. 14, PW-7 Bharatji @ Bakaji Babuji Thakore at exh. 16 and PW-8 Pravinji Anarji Thakore at exh. 17, the learned advocate for the accused has submitted that, as such, they are the elderly members of the family and the brothers of the deceased and they are not the eyewitnesses to the incident in question. Moreover, the case on hand rests mostly on the circumstantial evidence and hence, the link connecting the accused with the crime is required to be proved beyond reasonable doubt but if the documents at exhs. Moreover, the case on hand rests mostly on the circumstantial evidence and hence, the link connecting the accused with the crime is required to be proved beyond reasonable doubt but if the documents at exhs. 40, 41, 42, 43 and 44 are considered, which are related to the FSL and the findings of the FSL as well as the findings of the Scientific Officer, it has come on record that the human blood of 'A' group was found in all the articles i.e. on the clothes of the accused as well as on the clothes of the deceased and also on the weapon and on the other articles seized during the investigation but the important fact has not come record that the blood group of deceased was in fact of group 'A'. Moreover, in the case on hand, the accused had also sustained injuries by the deceased and hence, this important link was required to be completed and as the same is missing, the appellant - accused is entitled for the benefit of doubt. 5.1.1 So far as the above issue is concerned, it appears that in spite of having minutely gone through the documents on record, it has not come on record that whether the collected blood of deceased by the doctor was forwarded to the FSL or not. Moreover, the learned Additional Public Prosecutor could not lay her hand on any such document by which it can be said that the blood group of deceased was of group 'A'. Referring to the examination made by the Scientific Officer i.e. Serological Report at exh. 42, at the most, it can be said that so far as muddamal articles Nos. a, b and c, which are related to the deceased is concerned, there found the human blood of group 'A'. No doubt, when more than 10 blows alleged to have been inflicted by the accused, it can be presumed that the blood group of deceased may be of group 'A' but no concrete evidence to that effect has been forthcoming on record and when it is the fact that after the alleged incident the post mortem was carried out immediately by PW-9 Dr. Mahendrabhai Amrutlal Limbachiya (whose deposition is at exh. 21) and the Post Mortem Report has come on record vide exh. Mahendrabhai Amrutlal Limbachiya (whose deposition is at exh. 21) and the Post Mortem Report has come on record vide exh. 22, then if at all during the course of investigation if the prosecution wanted to collect the blood of the deceased for the purpose of FSL examination, they could have done so but the fact remains that this link appears to be missing so far as the present case is concerned. 5.2 Referring to the deposition of PW-6 Hasmukhbhai Narayandas Raval at exh. 15, who was running factory and in his factory, the appellant - accused was serving, to whom, as per the case of the prosecution, after the incident in question first of all, the appellant - accused had disclosed and admitted the guilt, however, these witness has not supported the case of the prosecution and was declared hostile and after his declaring as hostile also, nothing substantial has come on record from his cross-examination made by the prosecution. 5.3 Now, the crucial document on which the prosecution as well as the learned trial Judge have placed reliance is the complaint filed by the accused, which is produced at exh. 33. It has been concluded by the learned trial Judge in para 45 of the impugned judgment and order that no defence had been taken by the appellant - original accused herein that the said complaint had not been given by him nor had he signed the same and had not disclosed the facts referred in it and also not taken the defence that it was not the willful complaint given by the accused herein and considering the averments made in the said complaint and considering the fact that the recovery panchnama at exh. 29 has been proved and the blood stains of the deceased were found on the clothes as well as on the said weapon, the trial Court has ultimately come to the conclusion that the offence punishable under Section 304 of the IPC had been committed by the accused herein and accordingly, he has been convicted for 10 years' imprisonment. 29 has been proved and the blood stains of the deceased were found on the clothes as well as on the said weapon, the trial Court has ultimately come to the conclusion that the offence punishable under Section 304 of the IPC had been committed by the accused herein and accordingly, he has been convicted for 10 years' imprisonment. 5.3.1 It is pertinent to note at this juncture that the respondent - State had also preferred a Criminal Appeal being No. 638 of 2012 before this Court for enhancement of sentence imposed upon the present appellant - accused, which, vide order dated 04/12/2012, came to be dismissed by this Court observing that except for enhancement, no appeal has been preferred by the State against acquittal of the accused for the offence punishable under Section 302 of the IPC. 5.3.2 Drawing attention of this Court on the said complaint at exh. 33, the learned advocate for the appellant - accused has vehemently submitted that if the said complaint is referred as a whole, it can easily be said that there was some apprehension and fear on the part of the appellant - accused and accordingly, just for the self-defence, he had kept knife with him and as such, he had not initiated the quarrel nor had he instigated the deceased and as such, there was no ulterior motive on the part of the appellant - accused but the deceased had initiated the quarrel and also beaten the accused in the public and accordingly, he lost his temper and for the self-defence, he had inflicted such blows. 5.3.3 I have perused the said complaint minutely and there appears substance in the above-referred submission of the learned advocate for the appellant - accused. 5.4 Moreover, so far as the deposition of panch witness PW-11 Vishnubhai Leelachand Patel, exh. 25 of Discovery/Recovery Panchnama of weapon, exh. 29 is concerned, as submitted by the learned advocate for the accused, it appears that the said witness has also remained as panch previously in other cases also and considering the said fact, as such, the evidentiary value of the said evidence is diminished and his evidence cannot be relied upon in absence of any substantial evidence. 29 is concerned, as submitted by the learned advocate for the accused, it appears that the said witness has also remained as panch previously in other cases also and considering the said fact, as such, the evidentiary value of the said evidence is diminished and his evidence cannot be relied upon in absence of any substantial evidence. 5.4.1 In the considered opinion of this Court there appears substance in the same for the reason that this witness himself has admitted in his cross-examination that he had remained as panch in other 3-4 cases and accordingly, for want of any substantial evidence, it would be risky to rely such evidence and come to a specific conclusion. 5.5 It has also come on record that on the date of incident i.e. on 26/07/2011 at about 8:30 p.m., the accused herein was arrested and since then, he is in jail and thus, the accused herein has, as such, undergone imprisonment of 05 years and 25 days. Considering the above aspect and more particularly, when the case is based on circumstantial evidence and the law settled by the Hon'ble Apex Court in catena of decisions that if one link is missing then also, the accused is entitled to get the benefit of doubt. Accordingly, in the considered opinion of this Court, the prosecution has failed to prove the case against the accused beyond reasonable doubt and the learned trial Judge has erred in considering and evaluating the evidence on record, which requires interference at the hands of this Court. Further, the learned Additional Public Prosecutor is not in a position to show any evidence to take a otherwise view in the matter than above. In that view of the matter, present appeal deserves to be allowed by setting aside the impugned judgment and order and the appellant - accused requires to be acquitted giving benefit of doubt. 6. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 15/03/2012, passed by the learned 3rd Additional Sessions Judge, Mahesana camp: Visnagar, in Sessions Case No. 105 of 2011, is set aside and the appellant herein - original accused is acquitted of the charges for which he is convicted and sentenced, by giving benefit of doubt. The appellant - accused is reported to be in jail. The appellant - accused is reported to be in jail. Accordingly, he is directed to be set free forthwith if not required in any other case. Registry to return the R&P to the trial Court forthwith. The Registry is further directed to fax the Farad of this judgment and order to the concerned trial Court for its onward communication for compliance.