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2016 DIGILAW 237 (GUJ)

Ayar Jivabhai Nanabhai v. State of Gujarat

2016-02-02

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. By way of this appeal, appellant-original accused has challenged the judgment and order dated 01.08.2006, passed by the learned Additional Sessions Judge, Bhavnagar Camp-Mahua in Sessions Case No. 174/2005, whereby the trial court has convicted original accused under Section 302 of Indian Penal Code. 2. The short facts of the prosecution case are that on 28.10.2003, the son of the complainant informed the complainant that he had known from Village: Bhaguda that his uncle Jivabhai Lakhmanbhai was killed by Jivabhai Nanabhai who was residing in the sim of Village: Karla. The complainant with other people went at Village: Karla at the residence of Jivabhai Nanabhai. On inquiring, dead-body of the younger brother of the complainant i.e. Jivabhai Lakhmanbhai was found. It is the say of the complainant that the accused, with an ulterior motive, to settle the score of previous murder of the father of the accused, the accused has committed murder of the brother of the complainant with the sharp weapon. 2.1 The accused was apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses as oral evidence whose evidence have been read out before us: P.W. No. Name of witness Exhibit No. 1 Dr. Satishbhai Dinkarbhai 16 2 Khatabhai Lakshmanbhai 7 3 Hasuben Jivabhai 7 4 Kadubhai Lakshmanbhai 8 5 Ramkubhai Rahabhai 9 6 Himmatbhai Narandas 10 7 Jinabhai Jethabhai 36 8 Ramjibhai Tapubhai Chavda 20 9 Devayatbhai Khodabhai 8 10 Shamlabhai Oghadbhai 29 11 Vipulpari Babupari 33 12 Hasanmiya Babumiya Saiyed 37 13 Arjanbhai Karshanbhai 44 14 Babulal Mohanlal Mehta 45 15 Ghanshyambhai Bachubhai Bambhaniya 48 16 Bhagwanbhai Ramjibhai Kanani 51 2.2 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the trial court convicted the accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant-original accused has preferred the present appeal. 3. Mr. Pratik Barot, learned advocate appearing for the accused has contended that there is nothing on record to establish that appellant-original accused is involved in this case except the complaint and the evidence of P.W. 4. 3. Mr. Pratik Barot, learned advocate appearing for the accused has contended that there is nothing on record to establish that appellant-original accused is involved in this case except the complaint and the evidence of P.W. 4. He submitted that in absence of any eye witness in the present case, the trial court has erred in convicting appellant-original accused on the basis of circumstantial evidence when the chain has not been completed by the prosecution. He has drawn the attention of this Court to the post mortem report and the evidence of the doctor who performed post mortem and submitted that from the same it is clear that the deceased had died due to injuries which could have been sustained by sharp aged weapon and which were enough to cause the death. 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. He submitted that original accused deserves to be granted benefit of doubt as there is no clear evidence against him. 4. Ms. C.M. Shah, 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 the conviction appeal filed by the accused. She 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. She has submitted that in view of the post mortem report and the cause of death, the possibility of accidental death is clearly ruled out. She contended that no benefit of doubt is required to be given to the accused as the Trial Court in its judgment has explained in detail the reasons for conviction and has not committed any error in sentencing 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 appellant. 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. There is no direct evidence implicating the appellant. 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. 6. 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. The factum of accidental death is also ruled out considering the FSL reports and the panchnamas on record. We are therefore of the view that appellant-accused is required to be granted benefit of doubt as the prosecution has failed to complete the chain of events. We, therefore, are of the opinion that the judgment and order passed by the trial court calls for interference so far as conviction of the appellant-accused is concerned. 7. 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. 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." 8. 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." 8. 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. 8.1 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. 9. 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. 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. 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. 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. 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 01.08.2006, passed by the learned Additional Sessions Judge, Bhavnagar Camp-Mahua in Sessions Case No. 174/2005 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. R & P, if lying with this Court, to be sent back forthwith.