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2017 DIGILAW 1934 (GUJ)

RANCHODBHAI MAFATBHAI SOLANKI v. STATE OF GUJARAT

2017-12-28

A.S.SUPEHIA, BELA M.TRIVEDI

body2017
JUDGMENT : BELA M. TRIVEDI, J. 1. The appellant-accused has preferred this appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order dated 21.02.2013 passed by the 3rd Additional Sessions Judge (Adhoc), Anand (hereinafter referred to as ‘the Trial Court’) in Sessions Case No.128 of 2011, whereby the Trial Court has convicted the appellant for the offences punishable under section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment and to pay fine of Rs.3,000/in default thereof to undergo simple imprisonment for the period of three months. 2. As per the case of the prosecution before the Trial Court, on 04.08.1998 one Ratansinh Chhagansinh Solanki, Sarpanch of village Untwada, gave an information to the PSO of Tarapur Police Station that one Samantbhai Madhabhai Solanki, resident of his village had expired and therefore, he had called his cousin brother Narsingbhai, and that when he and Narsingbhai went to the hut of Samantbhai, he was found dead wearing only underwear, at the cot. It was further case of the prosecution that thereafter on 06.08.1998, a complaint came to be registered before the Tarapur Police Station at the instance of the complainant Narsingbhai Solanki, alleging inter alia that Samantbhai Madhabhai happened to be son of his uncle Madhabhai. The said Samantbhai was in the habit of consuming liquor and was staying in the field alongwith his wife Manekben. One Ranchhodbhai Mafatbhai Solanki who was also in the habit of consuming liquor had good relationship with Samantbhai. Thereafter, the said Ranchhodbhai had developed illicit relationship with his sister in law Manekben and both of them had also eloped for fifteen days. After they came back, they and Samantbhai all were staying together in the hut of Samantbhai. On 03.08.1998 at about 5.00 p.m. when he was returning from his field he had seen said Samantbhai, Manekben and Ranchhodbhai sitting at their hut. On the next day morning at about 9.00 a.m., Sarpanch Ratansinh Solanki had called him to his house and told him that Samantbhai had expired. Therefore, he and Sarpanch had gone to the hut of Samantbhai, where he was found dead lying on the cot wearing only underwear, and Manekben and Ranchhodbhai were not found there. On the next day morning at about 9.00 a.m., Sarpanch Ratansinh Solanki had called him to his house and told him that Samantbhai had expired. Therefore, he and Sarpanch had gone to the hut of Samantbhai, where he was found dead lying on the cot wearing only underwear, and Manekben and Ranchhodbhai were not found there. It was further alleged by the complainant that he had come to know that some quarrel had taken place amongst Samantbhai, Ranchhodbhai, Manekben and two other persons from Vaghri community in connection with the sale of one lady and thereafter, the said Ranchhodbhai, Manekben and the said two other persons had killed Samantbhai by throttling his neck. 3. The said complaint was registered as C.R. No.I54/ 1998 before Tarapur Police Station for the offences punishable under sections 302 and 114 of the Indian Penal Code. The Investigating Officer after completing the investigation had laid the chargesheet against one Mafatbhai Prabhatbhai, Shantaben Mafatbhai and Manekben Samantbhai, as the accused Ranchhodbhai Mafatbhai was absconding at the relevant time, in the Court of JMFC, Khambhat. On the committal of the case before the Sessions Case, the same was registered as Sessions Case No.3/1999. It further appears that during the pendency of the said case, the accused Manekben Samantbhai also absconded and therefore, the said case No.3/1999 was proceeded against accused Mafatbhai and Shantaben. The Sessions Court acquitted the said accused by the judgment and order dated 28.09.2003. 4. The appellant accused Ranchhodbhai Mafatbhai thereafter having been arrested on 23.07.2011, the supplementary chargesheet was laid before the Court of JMFC, Khambhat. On the committal of the case under section 209 of Code of Criminal Procedure to the Sessions Court, the same was registered as Sessions Case No.28/2011 before the Trial Court. The Trial Court had framed the charge against the accused at Exh.6 for the offences under section 302 and 114 of the Indian Penal Code. The appellant-accused denied the said charge and claimed to be tried. The prosecution to prove the charges levelled against the accused, had examined as many as 14 witnesses and produced the certified copies of the oral as well as documentary evidences led in Sessions Case No.3/1999. The appellant-accused denied the said charge and claimed to be tried. The prosecution to prove the charges levelled against the accused, had examined as many as 14 witnesses and produced the certified copies of the oral as well as documentary evidences led in Sessions Case No.3/1999. After the completion of the Trial, further statement of the accused was recorded under section 313 of the Code of Criminal Procedure, wherein he denied the allegations made against him and further stated that he was not present at the time of the alleged incident and he did not know as to who had killed Samantbhai. The Trial Court after appreciating the evidence on record convicted and sentenced the accused as stated hereinabove. 5. Learned Advocate Mr. Manoj T. Danak appearing for the appellant-accused vehemently submitted that the appellant was arrested after almost 12 years of the alleged incident and there was no direct evidence adduced by the prosecution connecting the appellant with the alleged crime. He further submitted that there was no eyewitness to the alleged incident and even if, it was believed that the appellant was staying at the house of deceased Samantbhai then also, it could not be said that appellant alongwith other accused had committed the alleged crime. According to him, the Trial Court had committed an error in convicting the appellant relying upon the evidence adduced by the prosecution in Sessions Case No.3/1999, more particularly when the other accused were already acquitted in the said case. 6. However, learned APP Ms.Monali Bhatt submitted that all the depositions of witnesses recorded in the earlier Sessions Case No.3/1999 were shown to the concerned witnesses examined by the prosecution and, they having admitted the said evidence, the same were exhibited in the instant case. According to her, the evidence recorded in the previous case could be relied upon in view of section 299 of the Code of Criminal Procedure read with section 33 of the Evidence Act. She further submitted that from the said evidence, it was not only proved that the accused was last seen together with the deceased but the motive of the appellant to commit the crime was also proved. 7. She further submitted that from the said evidence, it was not only proved that the accused was last seen together with the deceased but the motive of the appellant to commit the crime was also proved. 7. Having regard to the submissions made by the learned Advocates for the parties and to the evidence on record, it transpires that though prosecution had examined as many as 14 witness to prove the charges levelled against the appellant-accused, the prosecution had mainly relied upon the certified copies of the depositions recorded in the previous case no.3/1999. The said depositions of the respective witnesses were treated as the evidence in the instant case, on the concerned witnesses admitting the said depositions having been recorded. As stated hereinabove, the appellant-accused had remained absconded for long time after the alleged incident and was arrested in the year 2011 only. Since, he was absconding, first chargesheet was laid by the Investigating Officer against the three accused only and accordingly, the said Sessions Case No.3/1999 had proceeded against the said three accused persons. However, during pendency of the Trial, the accused Manekben also absconded, and the concerned Sessions Court acquitted the said two accused after appreciating the evidence on the record. Under the circumstances, the evidence in the said case was recorded in absence of the present accused. 8. At this juncture, it may be noted that as per section 299 of the Criminal Procedure Code, if it is proved that the accused person had absconded, and that there was no immediate prospect of arresting him, the Competent Court could in his absence, examine the witnesses produced on behalf of the prosecution, and record their depositions, and such deposition could, on the arrest of such person, be given in evidence against him on the trial for, the offence with which he was charged, if the deponent was dead or incapable of giving evidence or could not be found. It is also pertinent to note that as per Section 33 of the Evidence Act, the evidence given by witness in judicial proceedings would be relevant for the purpose of proving in a subsequent judicial proceedings, the truth of the facts which it states, when the witness is dead or may not be found. 9. It is also pertinent to note that as per Section 33 of the Evidence Act, the evidence given by witness in judicial proceedings would be relevant for the purpose of proving in a subsequent judicial proceedings, the truth of the facts which it states, when the witness is dead or may not be found. 9. Now, in the light of the aforestated provisions, if the evidence laid in the instant case is appreciated, it appears that the concerned witnesses who were examined in the previous case, have also been examined by the prosecution in the trial before the trial Court and the witnesses having admitted about their respective depositions in the previous case, the same were exhibited for the purpose of being read in evidence in the instant case. In the opinion of the Court, such a course of proceedings could not be said to be illegal, nonetheless appropriate course should have been that even if the concerned witness had admitted about the contents of his previous deposition, the same was required to be restated on oath and recorded in the instant case. Of course, the concerned Advocate appearing for the accused before the Trial Court had not objected against exhibiting those depositions of the concerned witnesses, and most of the time he had not even crossexamined the witnesses on the said depositions. In any case, the question that falls for consideration before the Court is, whether the prosecution had proved the guilt of the appellant-accused beyond reasonable doubt, even if the evidence recorded in the previous case is treated as legal and proper evidence in the instant case. 10. From the evidence on the record, it transpires that the entire case of the prosecution hinged upon the circumstantial evidence as there was no witness present at the time of occurrence of the alleged incident. The P.W.No.6 Ratansingh Solanki, Sarpanch of the village had informed the PSO Tarapore police station on 04.08.1998 in respect of the death of Samantbhai. The said information is on record at Exh.35. Thereafter, the complainant P.W. No.2Narsinhbhai had lodged complaint before the said Police Station, which is on record at Exh.24. His deposition in the previous Sessions case No.3/1999 is on record at Exh.25. The said information is on record at Exh.35. Thereafter, the complainant P.W. No.2Narsinhbhai had lodged complaint before the said Police Station, which is on record at Exh.24. His deposition in the previous Sessions case No.3/1999 is on record at Exh.25. From the said evidence, it appears that neither the said Ratansingh Solanki nor the complainant-Narsinghbhai Solanki had any personal knowledge about alleged incident in question as to how deceased Samantbhai expired, nor any explanation had come forth from the complainant Narsinhbhai as to why the complaint was lodged after two days i.e. on 06.08.1998, when he had come to know about the alleged incident on 04.08.1998 at the instance of Sarpanch Ratansinh. The P.W.No.3Shakriben Solanki happened to be the daughter of the deceased Samantbhai. She had admitted about the contents of her deposition recorded in the Sessions Case No.3/1999. The same is on record at Exh.17, however she has stated that she did not have personal knowledge about alleged incident and she had come to know about the death of her father through his uncle Narsinhbhai. Similarly, the P.W. No.12 Megaben @ Manchhaben, daughter of Samantbhai and P.W. No.13 Arvindbhai Solanki husband of said Megaben @ Manchhaben also did not have any personal knowledge as to how the alleged incident taken place. Other witnesses examined by the prosecution were the panchwitnesses and the Doctors who had carried out the postmortem of the deceased Samantbhai. 11. In view of the above, in absence of any cogent evidence adduced by the prosecution, and the prosecution having failed to prove the entire chain of circumstances conclusively proving the guilt of to the accused, it is difficult to connect the accused with the alleged crime merely only on the suspicion. It is axiomatic that the suspicion, howsoever strong cannot take place of proof. The prosecution has to prove the guilt of the accused beyond reasonable doubt. Beneficial reference of the decision of the Supreme Court in case of Satish Nirankari Vs. State of Rajasthan, reported in (2017) 8 SCC 497 may be made in this regard. It has been held therein as under : “29. It is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established: (i) Circumstances should be fully proved. (ii) Circumstances should be conclusive in nature. It has been held therein as under : “29. It is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established: (i) Circumstances should be fully proved. (ii) Circumstances should be conclusive in nature. (iii) All the facts established should be consistent only with the hypothesis of guilt. (iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal; Chandrakant Chimanlal Desai v. State of Gujarat). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.” 12. In the opinion of the Court, the Trial Court has committed grave error in convicting the appellant-accused merely on the ground that the accused had failed to explain as to who had caused death of deceased Samantbhai. The Trial Court has also committed error in giving undue importance to the circumstance that the accused had remained absconded for about 13 years. No doubt the conduct of the accused after the alleged incident would be a material circumstance, nonetheless such circumstance alone would not be sufficient to hold the accused guilty in absence of any cogent and material evidence adduced by the prosecution to prove guilt of the accused. 13. In that view of the matter, the judgment and order of conviction and sentence dated 21.02.2013 passed by the Trial Court in Sessions Case No.128 of 2011 are set aside. The Appellant-accused is acquitted from the charges levelled against him and is directed to be released forthwith, if not required in any other case. The appeal stands allowed accordingly. Records and proceedings be sent back to the concerned Trial Court forthwith. Appeal allowed.