Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 99 (GUJ)

State of Gujarat v. Pabho

2016-01-13

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 3, Gondal, Dist. Rajkot, in Sessions Case No. 38 of 2006 dated 28.9.2006, by which the learned trial Court has acquitted the original accused for the offence punishable under Section 302 of the Indian Penal Code, the appellant - State has preferred present Criminal Appeal under Section 378 of the Code of Criminal Procedure, 1973. 2. The prosecution case in nutshell is as under: 2.1 The complainant - Lavabhai Nathabhai Solanki filed a complaint before Gondal Taluka Police Station on 19.12.2005, stating that he was residing at village Mota Dadva of Gondal Taluka alongwith his family and he was doing labour work. It is further case of the prosecution that the complainant was having three sons and two daughters in his family. It is further case of the prosecution that the brother of the complainant namely Savjibhai was also residing at the same village Dadva and one Nita, daughter of Savjibhai was abducted by the respondent - original accused, who is husband of sister of the complainant. It is further case of the prosecution that the said Nita and the accused were returned at home after a period of 10 days and at present, they are staying together without marriage. 2.2 It is further case of the prosecution that prior to one and half months from the date of incident, the son of the complainant namely Gordhan and the accused met in the market. At the relevant point of time, said Gordhan rebuked the accused and therefore, the accused administered threat to said Gordhan. Thereafter, said Gordhan came at home and informed the complainant about the quarrel with the accused. At that time, the complainant gave advise to his son not to go to the house of the accused as well as not to rely on him and to remain careful. It is further case of the prosecution that on 17.12.2005 at about 5:30 Hrs. while the complainant was coming from village : Sathali to Dadva, Vasur, who is son of elder brother of the complainant informed the complainant that today (17.12.2005) at about 11:30 Hrs. It is further case of the prosecution that on 17.12.2005 at about 5:30 Hrs. while the complainant was coming from village : Sathali to Dadva, Vasur, who is son of elder brother of the complainant informed the complainant that today (17.12.2005) at about 11:30 Hrs. while he was going in the market with Gordhan, at that time, the accused met him and they all went to the Pan Galla of Somnathbhai Bharwad. Said Vasur further stated that at the relevant point of time, he asked to Gordhan about irrigation of crop and at that time, Gordhan said that he wanted to go the shop of Dakubhai Vanand for setting his hair and thereafter, said Gordhan went to the shop of said Vanand at that time, the accused was chasing Gordhan. It is further case of the prosecution that even after a lapse of two hours, said Gordhan did not return at home and as there was a dispute between Gordhan and the accused, said Vasur went to inquire in market as well as to the house of accused and at that time, the accused gave vague reply. 2.3 It is further case of the prosecution that an inquiry was made regarding whereabout of Gordhan in the Sim as well as at the house of friends and relatives, but said Gordhan was not found anywhere. Lastly, it was come to know that on 17.12.2005 at about 11:30 Hrs. Gordhan and the accused were going towards Virnagar. It was also come to know from the boys of Ganchi community that on Saturday at about 12:30 Hrs. the accused alone was coming from the side of Virnagar. It is further case of the prosecution that as there was no information regarding whereabouts of Gordhan, the complainant alongwith Ravjibhai Nathabhai, Keshubhai Ravji and Mansukh Karsan had gone towards Virnagar and seen the dead body of the deceased Gordhan was lying near valley with injuries on head and forehead. Thus, deceased Gordhan was having dispute with the accused and therefore, the accused gave threat to Gordhan to cause death. Therefore, the complainant was suspicious regarding conduct and attitude of the accused and therefore, he filed the complaint as stated above being CR No. 1332 of 2005 for the offence under Section 302 of the Indian Penal Code. 2.4 That the aforesaid FIR was investigated by the Police Inspector, Gondal Police Station - Aminbhai Salebhai Kashiri. Therefore, the complainant was suspicious regarding conduct and attitude of the accused and therefore, he filed the complaint as stated above being CR No. 1332 of 2005 for the offence under Section 302 of the Indian Penal Code. 2.4 That the aforesaid FIR was investigated by the Police Inspector, Gondal Police Station - Aminbhai Salebhai Kashiri. He recorded the statements of concerned witnesses. He also collected the evidence against the accused. He also prepared the inquest panchnama through the Executive Magistrate and also P.M. Note, panchnama - place of incident etc. He also prepared demo panchnama, panchnama of discovery of clothes of the accused as well as the stone alleged to have been used in the commission of the offence, which were recovered at the instance of the accused and same were sent to the FSL. The Investigating Officer obtained Serological Report from the FSL. Thereafter, after conclusion of the investigation and having found prima facie case, the Investigating Officer filed charge-sheet against the accused before the learned Judicial Magistrate, Gondal, for the offence punishable under Section 302 of the Indian Penal Code. As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Gondal committed the case to the Court of learned Additional Sessions Judge, Fast Track Court No. 3, Gondal, Dist. Rajkot, which was numbered as Sessions Case No. 38 of 2006. 2.5 That the learned trial Judge framed the charge against the accused at Exhibit 6 for the offence punishable under Section 302 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. 2.6 To prove the case against the accused, the prosecution examined as many as following 10 witnesses: Sr. No. Name of the witnesses Exhibit P.W.1 Lavabhai Nathabhai Solanki, complainant, father of the deceased 9 P.W.2 Vasur Lavabhai Solanki, brother of deceased 11 P.W.3 Allarakha Gulabbhai Pinjara, witness 12 P.W.4 Shamatbhai Sangrambhai Chauhan, witness 13 P.W.5 Chandubhai Ukabhai Parmar, witness (hostile) 14 P.W.6 Dr. Ravjibhai Parbathbhai Madaliya 25 P.W.7 Bhartsinh Ghulubha Jadeja 34 P.W.8 Dhirubhai Ramjibhai Bavliya, witness (hostile) 38 P.W.9 Damjibhai Shambhubhai Bavaji, witness(hostile) 41 P.W.10 Aminbhai Salebhai Kasir, P.I. 42 2.7 Through the aforesaid witnesses, the prosecution also brought on record the following documentary evidence. Sr. No. Particulars Exhibit 1. Original Complaint 10 2. Yadi for P.M. 15 3. Ravjibhai Parbathbhai Madaliya 25 P.W.7 Bhartsinh Ghulubha Jadeja 34 P.W.8 Dhirubhai Ramjibhai Bavliya, witness (hostile) 38 P.W.9 Damjibhai Shambhubhai Bavaji, witness(hostile) 41 P.W.10 Aminbhai Salebhai Kasir, P.I. 42 2.7 Through the aforesaid witnesses, the prosecution also brought on record the following documentary evidence. Sr. No. Particulars Exhibit 1. Original Complaint 10 2. Yadi for P.M. 15 3. Dying Declaration Form 16 4. Inquest Panchnama 17 5. Tex Report 18 6. Offence Report sent to Deputy Superintendent 19 7. Receipt for handling over the dead body 20 8. Yadi sent tot Executive Magistrate for inquest 21 9. Report for serious offence 22 10. Cause of death report 26 11. P.M. Report 27 12. Panchnama of local place 28 13. Police Dog Call Form 29 14. Approval report for arresting the accused 30 15. Yadi for map of local place 31 16. Yadi sent to Circle Inspector for map of local place 32 17. Map of local place 33 18. Report for registering the offence 35 19. Short detail of complaint 36 20. Copy of entries made in station diary 37 21. Demonstration Panchnama 39 22. Discovery Panchnama 40 23. Yadi for sending opinion regarding Muddamal 43 24. Authority certificate 44 25. Receipt for Muddamal 45 & 47 26. Analysis report of Muddamal 46 27. Serological report of Muddamal 48 2.8 After filing of closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded, in which the accused denied having committed any offence and stated that he has been falsely implicated in the alleged offence. During the trial, P.W. 5, 8 and 9 i.e. panch witnesses declared hostile. However, thereafter, on appreciation of evidence, the learned trial Court has acquitted the original accused for the offence punishable under Section 302 of the Indian Penal Code, by specifically observing that in the case of circumstantial evidence, the prosecution has failed to establish a complete chain of evidence, which can lead to the only conclusion that it was the accused alone, who has committed the offence. Consequently, by impugned judgment and order, the learned trial Court has acquitted the original accused for the offence punishable under Section 302 of the Indian Penal Code. Hence, the State has preferred present Criminal Appeal challenging the impugned judgment and order of acquittal passed by the learned trial Court. 3. Consequently, by impugned judgment and order, the learned trial Court has acquitted the original accused for the offence punishable under Section 302 of the Indian Penal Code. Hence, the State has preferred present Criminal Appeal challenging the impugned judgment and order of acquittal passed by the learned trial Court. 3. Shri K.P. Raval, learned APP appearing on behalf of the appellant - State, has vehemently submitted that the learned trial Court has materially erred in acquitting the original accused for the offence punishable under Section 302 of Indian Penal Code. 3.1 It is further submitted by the learned APP appearing on behalf of the State that on acquitting the original accused, the learned trial Court has not properly appreciated the evidence on record and the findings recorded by the learned trial Court are contrary to the evidence on record. 3.2 It is further submitted by the learned APP appearing on behalf of the State that in the present case, the prosecution has been successful in proving that the accused was last seen together with the deceased and that thereafter, when he was returning alone, he was seen by one Allarakha Gulabbhai Pinjara, in suspicious manner. 3.3 It is further submitted by the learned APP appearing on behalf of the State that in the present case, even there was discovery of weapon/stone used in the commission of the offence having bloodstains and even the cloths of the accused, having bloodstains were recovered/discovered at the instance of the accused. It is submitted that the cloths of the accused and stone used in the commission of the offence were sent to the FSL and in Serological Report, the blood group "B" was found on the cloths accused as well as on the stone. 3.4 It is further submitted by the learned APP appearing on behalf of the State that even the prosecution has been successful in proving the motive behind the commission of the offence by the accused. It is further submitted that as the accused was staying with one another girl and was having illicit relationship with another girl, which was not liked by the deceased and therefore, the deceased used to scold him and even before one and half months, the accused gave threat to the deceased. It is further submitted that as the accused was staying with one another girl and was having illicit relationship with another girl, which was not liked by the deceased and therefore, the deceased used to scold him and even before one and half months, the accused gave threat to the deceased. It is, therefore, submitted by the learned APP appearing on behalf of the State that the motive has been established and proved by the prosecution by leading cogent evidence. The learned trial Judge ought to have convicted the accused for the offence punishable under Section 302 of the Indian Penal Code. 3.5 It is further submitted by the learned APP appearing on behalf of the State that while acquitting the original accused, the learned trial Court has not properly appreciated the depositions of P.Ws. 1, 2, 3 and 4 at Exhibit 9, 11, 12 and 13. 3.6 It is submitted by the learned APP appearing on behalf of the State that in the present case, by leading cogent evidence and examining Dr. Ravjibhai Parbatbhai Madalia, P.W. 6 who was examined at Exhibit 25, the prosecution has been successful in proving that the death of the deceased was of homicide and cause of death was due to head injury. It is further submitted that the stone used by the accused in commission of offence has been recovered at the instance of accused during discovery panchnama at Exhibit 40. 3.7 It is submitted by the learned APP appearing on behalf of the State that therefore, the learned trial Court has committed grave error in acquitting the original accused, which has resulted into miscarriage of justice. Making the above submissions, it is requested to allow present Appeal and quash and set aside the impugned judgment and order of acquittal and convict the original accused for the offence punishable under Section 302 of the Indian Penal Code. 4. Present Appeal is opposed by Shri Barot, learned advocate appearing on behalf of the original accused. 4.1 It is submitted by Shri Barot, learned advocate appearing on behalf of the original accused that the findings recorded by the learned trial Court while acquitting the original accused are on appreciation of evidence and the same in any manner, cannot be said to be perverse and/or contrary to the evidence on record. 4.1 It is submitted by Shri Barot, learned advocate appearing on behalf of the original accused that the findings recorded by the learned trial Court while acquitting the original accused are on appreciation of evidence and the same in any manner, cannot be said to be perverse and/or contrary to the evidence on record. It is submitted by Shri Barot, learned advocate appearing on behalf of the original accused that even on appreciation of evidence, the learned trial Court has held that the prosecution has failed to establish and prove and/or complete chain of evidence, which may lead to only conclusion that the accused alone and alone has committed the offence. The same is not required to be interfered with by this Court in exercise of appellate jurisdiction. 4.2 It is submitted by Shri Barot, learned advocate appearing on behalf of the original accused that even in the present case, the prosecution has not brought any evidence on record that the blood group "B" which was found on the cloths and weapon was of the accused or even of the deceased. It is submitted therefore merely because the bloodstains were found on the cloths of the accused having of "B" group, unless and until the evidence brought on record that blood group of deceased as well as original accused was "B" group, no conviction can be based on the aforesaid. It is further submitted that no such question with respect to the Serological Report and/or bloodstains even found on the cloths of the accused were put the accused, while recording his further statement under Section 313 of the Code of Criminal Procedure. It is further submitted by Shri Barot, learned advocate appearing on behalf of the original accused that if such an incriminating material would have been pointed to the accused, the accused would have explained the same. It is submitted that however, no such opportunity has been given to the accused. 4.3 It is submitted by Shri Barot, learned advocate appearing on behalf of the original accused that even Allarakha Gulabbhai Pinjara, P.W. 3, who was examined at Exhibit 12 has not stated at what time he saw the accused returning. It is submitted that therefore, the deposition of Allarakha, P.W. 3 neither here nor there. 4.3 It is submitted by Shri Barot, learned advocate appearing on behalf of the original accused that even Allarakha Gulabbhai Pinjara, P.W. 3, who was examined at Exhibit 12 has not stated at what time he saw the accused returning. It is submitted that therefore, the deposition of Allarakha, P.W. 3 neither here nor there. It is further submitted that except the evidence of last seen together as such there is no evidence and/or material connecting the accused with the commission of the offence. It is further submitted that as per the catena of decisions of the Hon'ble Supreme Court as well as this Court, the events of last seen together can be said to be weakest evidence and on such sole evidence of last seen together, there may not be any conviction. It is submitted that as rightly observed and held by the learned trial Court, the prosecution has miserably failed to prove the complete chain of evidence, which would lead to only conclusion that the accused alone and alone has committed offence. 4.4 It is submitted by Shri Barot, learned advocate appearing on behalf of the original accused that in the present case, even the prosecution has miserably failed to prove by leading cogent evidence the discovery panchnama at Exhibit 40. 4.5 It is further submitted by Shri Barot, learned advocate appearing on behalf of the original accused that even the demonstration panchnama produced at Exhibit 39 cannot be believed mainly on the ground that same is not proved by leading cogent evidence and even otherwise, the same can be said to be so called confession of the accused and same cannot be relied upon and/or believed and/or same cannot be used against the accused. Making the above submissions and relying upon the following decisions with respect to the scope and ambit of the Appellate Court, while deciding the Appeal against the judgment and order of acquittal, it is requested to dismiss present Appeal. (i) Raj Singh Vs. State of Haryana reported in (2015) 6 SCC 268 (ii) Golbar Hussain & Ors. Vs. State of Assam & Anr. reported in: (2015) AIR SCW 3248 5. Heard the learned advocates appearing on behalf of the parties at length. 6. Perused the impugned judgment and order passed by the learned trial Court. We have re-appreciated entire evidence on record. 7. State of Haryana reported in (2015) 6 SCC 268 (ii) Golbar Hussain & Ors. Vs. State of Assam & Anr. reported in: (2015) AIR SCW 3248 5. Heard the learned advocates appearing on behalf of the parties at length. 6. Perused the impugned judgment and order passed by the learned trial Court. We have re-appreciated entire evidence on record. 7. At the outset, it is required to be noted that the present Appeal is against the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused for the offence punishable under Section 302 of the Indian Penal Code. As per the catana of decisions of the Hon'ble Supreme Court and this Court, unless and until, it is found that the findings recorded by the learned trial Court are perverse and contrary to the evidence on record and/or views taken by the learned trial Court are plausible and out of which one view is taken by the trial Court, the Appellate Court may not interfere with the order of acquittal. 8. Having heard the learned advocates appearing on behalf of the respective parties and considering the entire evidence on record both the oral as well as documentary, it is not disputed that as such the case rests on circumstantial evidence only. As per the cardinal principle of law for convicting the accused on circumstantial evidence, the prosecution has to establish and prove the complete chain of evidence, which may lead to only conclusion that the accused alone has committed the offence. Even as per cardinal principle of law, the theory of last seen together is weakest evidence and something more is required to be proved by leading cogent evidence and/or corroborative evidence to prove the case against the accused. 9. In the present case, to prove the case against the accused, the prosecution examined P.W. 1 - Lavabhai Nathabhai Solanki - original complainant and father of deceased at Exhibit 9, one Vasur Lavabhai Solanki, brother of the deceased as P.W. 2 at Exhibit 11; one Allarakha Gulabbhai Pinjara as P.W. 3 at Exhibit 12 and one Shamatbhai Sangrabhai Chauhan as P.W. 4 at Exhibit 13. As such none of aforesaid witnesses are eye-witnesses. 10. As such none of aforesaid witnesses are eye-witnesses. 10. Lavabhai Nathabhai Solanki - original complainant and father of the deceased has stated that the deceased Gordhan told him before one and half months that the accused had given threat to him and as the deceased scolded the accused for having illicit relationship with another lady and staying with her, which was not liked by the accused. The brother of the deceased, who has examined as P.W. 2 at Exhibit 11 has stated the same thing, however, he has stated that his father told him about the same. Thus, whatever is stated by them is hear-say and they had no personal knowledge. Therefore, as such it cannot be said that the prosecution has been successful in proving the motive. 11. Allarakha Gulabbhai Pinjara, who has been examined as P.W. 3 at Exhibit 12 stated that before 2 days prior to the date of dead body of the deceased was found, he had seen the accused in suspicious manner and he asked about his goats/cattle. However, said witness has not stated that at what time, he saw the accused. Under the circumstances, the deposition of this witness - Allarakha does not carry the matter further and support the case of the prosecution. 12. Now, so far as so called discovery of cloths of the accused and weapon/stone used in the commission of the offence, having bloodstains and Serological Report suggesting the blood having of "B" group on the cloths of accused as well as weapon alleged to have been used and alleged to have been discovered at the instance of accused, it is required to be noted that as such, no evidence has been led by the prosecution with respect to the blood group of either accused or even the deceased. Even no question was asked to the accused with regard to the same in his further statement recorded under Section 313 of the Code of Criminal Procedure. Therefore, as such, no opportunity was given to the accused to explain the above. In any case, the prosecution has failed to establish and prove that the bloodstains found on the cloths of the accused and even on the weapon were that either of the accused or the deceased. Even panchas of panchnama of discovery have turned hostile. Therefore, as such, no opportunity was given to the accused to explain the above. In any case, the prosecution has failed to establish and prove that the bloodstains found on the cloths of the accused and even on the weapon were that either of the accused or the deceased. Even panchas of panchnama of discovery have turned hostile. Thus, even the prosecution has failed to prove by leading cogent evidence, panchnama of discovery of cloths of the accused and even the weapon. 13. It is required to be noted that in the present case, the State has tried to rely upon the Demo panchnama and confession made by the accused that he has committed offence. However, same cannot be used against the accused and/or contents of such confession in Demo panchnama cannot be used against the accused. 14. As observed herein above, as such the prosecution has filed to establish and prove the complete chain of evidence suggesting that the accused alone and alone has committed the offence. As observed herein above, the prosecution has mainly relied upon the theory of last seen together. However, as per the catana of decisions, the conviction can be based on the theory of last seen together and there must be must be some further corroborative evidence to prove the guilt of the accused. 15. In view of the aforesaid facts and circumstances, it cannot be said that learned trial Judge has committed any error in acquitting the original accused, more particularly, when the case rests on circumstantial evidence and as observed above, the prosecution has failed to establish and prove the complete chain of evidence, which may lead to only conclusion that the accused alone and alone has committed the offence. 16. Under the circumstances and in view of the above, no interference of this Court against the impugned judgment and order of acquittal passed by the learned trial Court in exercise of appellate jurisdiction, is called for. 17. In the result, this appeal is dismissed. The impugned judgment and order of acquittal dated 28.9.2006 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 3, Gondal, Dist. Rajkot, in Sessions Case No. 38 of 2006 is hereby confirmed. Bail bonds stand cancelled. R & P to be sent back to the concerned trial court forthwith. Appeal dismissed.