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2016 DIGILAW 214 (GUJ)

Hurjibhai Kanjibhai Parghi v. State of Gujarat

2016-01-29

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Present appeal is preferred by the appellant-original accused No. 1 against the judgment and order of conviction and sentence dated 24.01.2008 passed by the Additional Sessions Judge, Fast Track Court, Dahod in Sessions Case No. 56 of 2007 for the offences punishable under sections 302 of Indian Penal Code. The accused No. 1 was ordered to undergo imprisonment for life & was ordered to pay fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months for offence under section 302 of Indian Penal Code. The accused No. 1 was further ordered to undergo imprisonment for one year and to pay fine of Rs. 500/- in default to undergo rigorous imprisonment for one month for offence under section 201 of Indian Penal Code. 2. The case of the prosecution is that one Gautambhai Parghi lodged an FIR on 15.01.2007 that his elder brother Varjibhai is missing since the evening of 12.01.2007. That on 12.01.2007, the appellant-accused had come to the deceased and requested him to accompany him till on the way to his home. Since then the deceased was not seen. Thereafter on 15.01.2007, at about 10.00 Hrs an information was received by the informant of a dead body lying near Mahudi. When the informant approached to that side, he found the deceased dead. 2.1 Thereafter, inquest panchnama of the deceased was done the dead body was sent for the postmortem. The panchnama of place of offense was also done. After completing the panchnama, the offence was registered against the accused and the accused was shown as suspect. He was arrested and after necessary investigation, charge-sheet was submitted against the accused. Ultimately, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. 2.2 The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses as oral evidences: (i) P.W. 1 - Dalabhai Akhmabhai Ninama Ex. 05 (ii) P.W. 2 - Shankarbhai Motibhai Pargi Ex. 07 (iii) P.W. 3 - Ramanbhai Kaljibhai Pargi Ex. 08 (iv) P.W. 4 - Kalabhai Nanjibhai Ninama Ex. 12 (v) P.W. 5 - Narvatbhai Ukarbhai Barjod Ex. 17 (vi) P.W. 6 - Dr. Shakjibhai Gavjibhai Bhabhor Ex. 23 (vii) P.W. 7 - Gautambhai Shamjibhai Pargi Ex. 28 (viii) P.W. 8 - Maniben Shamjibhai Pargi Ex. 07 (iii) P.W. 3 - Ramanbhai Kaljibhai Pargi Ex. 08 (iv) P.W. 4 - Kalabhai Nanjibhai Ninama Ex. 12 (v) P.W. 5 - Narvatbhai Ukarbhai Barjod Ex. 17 (vi) P.W. 6 - Dr. Shakjibhai Gavjibhai Bhabhor Ex. 23 (vii) P.W. 7 - Gautambhai Shamjibhai Pargi Ex. 28 (viii) P.W. 8 - Maniben Shamjibhai Pargi Ex. 29 (ix) P.W. 9 - Parsingbhai Shamjibhai Pargi Ex. 30 (x) P.W. 10 - Rasiben Varjibhai Pargi Ex. 31 (xi) P.W. 11 - Nanubhai Nathubhai Pargi Ex. 34 (xii) P.W. 12 - Jagjibhai Kaljibhai Pargi Ex. 35 (xiii) P.W. 13 - Masulbhai Bhimabhai Bhuriya Ex. 37 (xiv) P.W. 14 - Jayvirbhavanidan Gadhvi Ex. 40. 2.3 The prosecution also exhibited the following documents as documentary evidences: (i) Inquest panchnama Ex. 06 (ii) Panchnama of place of offense Ex. 11 (iii) Panchnama of Search Ex. 16 (iv) Panchnama of recovery of cloths of the dead-body Ex. 18 (v) Postmortem report Ex. 24 (vi) Certificate showing cause of death Ex. 25 (vii) Complaint Ex. 38 (viii) Dispatch note of sending Muddamal with authority certificate Ex. 41 (ix) Letter of Muddamal received by FSL Ex. 42 (x) Letter of FSL with report Ex. 43. 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant of the charges leveled against him by judgment and order dated 24.01.2008. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Mr. M.A. Kharadi, learned advocate appearing for the appellant has contended that the prosecution has failed to prove the case against the accused beyond reasonable doubt. He submitted that there is no eye witness to the present incident and that the case is based on circumstantial evidence. He submitted that in fact the appellant is wrongly roped in the present offence. 3.1 Mr. Kharadi has drawn the attention of this Court to the fact that the prosecution has not successfully prove that it is a culpable homicide. The murder was committed about 20 hours prior to the post-mortem. He further submitted that even if the case of last seen together is believed they were seen together on between 12th to 15th, there is no eyewitness. The murder was committed about 20 hours prior to the post-mortem. He further submitted that even if the case of last seen together is believed they were seen together on between 12th to 15th, there is no eyewitness. He further submitted that even if we take into consideration the FSL report, it also does not prove the case of the prosecution and therefore the trial court has committed an error in convicting the appellant - accused. 3.2 Mr. Kharadi further contended that in fact the trial court did not have sufficient evidence to even suggest that the deceased was killed at a particular place by the present appellant. He further contended that the trial court has committed a grave error in coming to a conclusion that the appellant has committed offence punishable under Section 302 of Indian Penal Code as it emerges from the evidence that there is no eye witness, who could say the offence was committed. He submitted that in absence of any eye witness to the incident, the trial court has wrongly convicted the present appellant and he deserves to be granted at least benefit of doubt. 4. Mr. L.R. Poojari, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in this appeal. He stated that the trial court has based the conviction not only on the evidence of witnesses but also considered entire circumstances of the case and the facts which are proved by cogent evidence. He has drawn the attention of this Court to the statements of P.W. 8 & P.W. 9 who have supported the contents of the FIR and the conduct of the accused in hiding the offence from the wife of deceased. He has submitted that in view of the post mortem report and the cause of death, the possibility of accidental death is clearly ruled out. He contended that no benefit of doubt is required to be given to the accused. 5. We have perused the records of the case. The case is based on circumstantial evidence in the absence of any eye witness. There is no direct evidence implicating the appellants. He contended that no benefit of doubt is required to be given to the accused. 5. We have perused the records of the case. The case is based on circumstantial evidence in the absence of any eye witness. There is no direct evidence implicating the appellants. It is trite that all the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. 5.1 As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court. In the present case, the trial court has mainly relied upon the testimonies of three witnesses viz. P.W. 7 - Gautambhai Shamjibhai Pargi, P.W. 8 - Maniben Shamjibhai Pargi and Parsingbhai Shamjibhai Pargi. 6. As per the prosecution case, it appears true that on 12.01.2007 the deceased has gone with the accused, but there is nothing on record to show that on 13.01.2007, 14.01.2007 and 15.01.2007 both of them were seen together. 7. In the history recorded before the Medical Officer at C.H.C., Fatepura, the postmortem was performed by the said Medical Officer and the said officer opined that when the postmortem was done, the deceased would have died before about 18 to 20 hours. But, according to the prosecution case, the murder was committed on the afternoon of 15.01.2007, which does not match with the theory of the prosecution. 8. In the case of Pohalya Motya Valvi (supra), the Apex Court has observed as under: "5. It is common ground that there is no direct evidence implicating the appellant. Prosecution case rests on circumstantial evidence. As the case depends on circumstantial evidence, at the outset the well-established principles governing the appreciation of evidence in a case dependent upon circumstantial evidence may be borne in mind. Briefly, the principles are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstances must be of an incriminating character. Briefly, the principles are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstances must be of an incriminating character. All the proved circumstances must provide a complete chain no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence." 9. It is true that last seen together circumstance is a weak piece of evidence as reproduced herein above but the incriminating nature is proved to the hilt and therefore the decision relied upon by learned advocate for the appellant in the aforesaid case will go against the accused. In the present case, considering the evidence of witnesses as well as the medical evidence, we are of the opinion that the prosecution has proved the fact that the deceased died a homicidal death beyond reasonable doubt. Learned advocate for the appellant is not in a position to point out any cogent evidence or circumstance so as to enable this Court to take a view contrary to the one taken by the trial court. 9.1 Moreover, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character. The accused person in the present case is not in a position to account for the disappearance of the deceased. The fact that the deceased was last seen with the accused is also not proved beyond reasonable doubt. The factum of accidental death is also not ruled out considering the FSL reports and the panchnamas on record. The trial court has considering all these facts convicted the accused under section 302 of Indian Penal Code which does not seems just and proper. 10. In a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah vs. State of Assam reported in JT 2013 (10) SC 373 has held as under: "15. The trial court has considering all these facts convicted the accused under section 302 of Indian Penal Code which does not seems just and proper. 10. In a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah vs. State of Assam reported in JT 2013 (10) SC 373 has held as under: "15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen vs. B.K. Srivastava & Ors., (2013) 3 SCC 425 , Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294 , Sangeet and Anr. vs. State of Haryana, (2013) 2 SCC 452 , Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat, (2011) 2 SCC 764 , Chhote Lal vs. State of Madhya Pradesh, (2011) 8 SCR 239, Mulla and Another vs. State of Uttar Pradesh, (2010) 3 SCC 508, Maru Ram vs. Union of India & Ors., (1981) 1 SCC 107 , State of Madhya Pradesh vs. Ratan Singh & Others, (1976) 3 SCC 470 and Gopal Vinayak Godse vs. State of Maharashtra, AIR 1961 SC 600 ]. 10.1 In the case of Sri. Sujit Biswas vs. State of Assam, the Apex Court has held as under: "Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense." 10.2 In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the Apex Court held as under: "The facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ...Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence." 11. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence." 11. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. Therefore, we are of the opinion that considering the fact that the chain of circumstances in the present case having not been complete, the present appellant deserves benefit of doubt. 12. Accordingly, Appeal is allowed. The order of conviction and sentence dated 24.01.2008 passed by the Additional Sessions Judge, Fast Track Court, Dahod in Sessions Case No. 56 of 2007 is quashed and set aside. The appellant - accused is acquitted of the charges levelled against him under Section 302 of Indian Penal Code giving benefit of doubt. The fine imposed upon the appellant vide judgment and order dated 24.01.2008 by the trial court, if paid, shall be refunded to him. R&P, if lying with this Court, to be sent back forthwith.