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2019 DIGILAW 383 (GUJ)

Ram Milan S/o Chhotelal Dube v. State Of Gujarat

2019-04-11

R.M.CHHAYA, S.H.VORA

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JUDGMENT : S.H. VORA, J. 1. Present criminal appeal has been preferred by one Mr. Rammilan, Son of Mr.Chhotelal Dube u/s 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 12.4.2012 rendered in Sessions Case No.159 of 2008 passed by the learned Additional Sessions Judge, Deesa at Banaskantha, whereby the appellant – accused was directed to undergo sentence for life imprisonment for the offences punishable u/s 302 r/w section 34 of the IPC and to pay fine of Rs.10,000/-, in default, to undergo SI for 60 days, and for the offences punishable u/s 392 r/w section 34 of the IPC, the appellant accused was directed to undergo RI for 3 years and to pay fine of Rs.1000/-, in default, to undergo SI for 10 days. Both the sentences were ordered to run concurrently. 2. Feeling aggrieved by the judgment and order of conviction and sentence, the appellant is before this Court. 3. At the time of hearing, it is reported at bar that the appellant is absconding. Since the appellant is represented by learned advocate Ms. Bhavika Kotecha and is ready to proceed with the appeal, the Court proceed to decide the same on merits and accordingly, both the learned advocates appearing for the appellant and the respondent were heard extensively in view of decision rendered in case of Niraj Devnarayan Shukla and others Vs. State of Gujarat rendered by Full Bench of this Court in Criminal Appeal No.1564 of 2009. 4. In order to prove the case, the prosecution examined 22 witnesses. In addition to oral evidence, the prosecution has also produced and proved documentary evidence. At the end of trial, the appellant was examined u/s 313 of the Code, where he pleaded that he is innocent and has been falsely implicated in the offence. 5. As per the prosecution case, deceased Rameshwargiri was the Pujari of temple of Lord Shiva situated at Kailash Tekri on the bank of river in the outskirt of village Vahara, TaL:Deesa and he had been worshiping there for the last thirty five years of the incident dated 8.4.2008. In the said date at about early morning at 8 o’clock, one Mr. In the said date at about early morning at 8 o’clock, one Mr. Thakor Kamalji Mashruji came to complainant’s farm to give vessel containing water and milk jar to the Pujari of the temple and he saw that the Pujari was sleeping in the veranda of the temple and blood stains were found on the wall. He further informed to the complainant that one wooden log smeared with blood was lying in the compound beside the temple. The complainant informed this fact to the Sarpanch of the village, namely, Mr.Amthaji Kaluji Thakor, Mr.Sabaji Puniji and Mr. Arjanbhai Jamalbhai etc. The complainant and other persons so informed came to the temple and they saw dead body of the Pujari lying on the cot in the veranda of the temple and head was bleeding profusely. Similarly, they noticed that lock of the temple was broken and the articles were lying scattered and no article was found to be stolen from the temple. According to the complainant, the deceased had Hutch mobile phone bearing number 99136 85083 which was not found there. Despite repeated calls made on the said mobile, nobody was picking up the calls and later on, it was found switched off. According to the complainant, the mobile of the deceased was registered in the name of Thakor of Chhagala village and its price was about Rs.2000/-. Thus, it is alleged that the unknown person has murdered the Pujari and stolen Nokia mobile worth Rs.2000/- with an intention to make robbery in the temple from any time in the night on 7- 8/04/08 to seven thirty hours of 8.4.2008. 6. Upon receipt of the complaint, the investigating agency commenced the investigation and upon completion of the investigation, charge sheet came to be led against the appellant. As per postmortem report, it was borne out that the deceased died due to traumatic shock due to head injury. During the course of investigation, as per the prosecution case, Panchnama of the site of the offence was drawn. Clothes worn by the deceased as well as to that of the accused person – appellant was recovered and the statements of relevant witnesses were recorded. During the course of investigation, as per the prosecution case, Panchnama of the site of the offence was drawn. Clothes worn by the deceased as well as to that of the accused person – appellant was recovered and the statements of relevant witnesses were recorded. After having found sufficient material against the appellant accused, the investigating agency filed charge sheet in the competent court, who in turn, committed the case to the court of Sessions at Deesa and came to be registered as Sessions Case No.159 of 2008. The learned Addl. Sessions Judge, Deesa framed charge at Exh.6 against the appellant accused for the offences punishable u/s 302, 392 r/w section 34 of the IPC and also u/s 135 of the Bombay Police Act. The appellant pleaded not guilty and claimed to be tried. Accordingly, the appellant came to be put to trial. 7. Before submissions of both the learned advocates are considered, it is worthwhile to take note of oral as well as documentary evidence: Oral evidence Sr. No. Particulars Exhs. 1 Complainant Bachuji Chelaji (PW 1) 9 2 Panch witness Bhavanji Balvantji Thakor (PW 2) 11 3 Witness Amratbhai Lilabhai Rabari (PW 3) 13 4 Panch witness Hamirji Mobtaji (PW 4) 17 5 Panch witness Parbatji Amthaji (PW 5) 20 6 Panch witness Khemchand L. Pathak (PW 6) 25 7 Panch witness Mulchand Gyandin Nai (PW 7) 27 8 Panch witness Shaikh Mohd Rais Mohd Ilias (PW 8) 28 9 Witness Dr. Brijesh Shyamsundar Vyas (PW 9) 30 10 Panch witness Maganbhai Chelabhai (PW 10) 33 11 Panch witness Panchabhai Malabhai Desai (PW 11) 35 12 Panch witness Babuji Gajuji Thakor (PW 12) 37 13 Witness Arjanbhai Jagmalbhai (PW 13) 49 14 Witness Amthaji Kaluji Thakor (PW 14) 50 15 Witness Mahmad Aslam Gulabkhan Ghasura (PW 15) 52 16 Witness Jetilal Arjanbhai Parmar (PW 16) 53 17 Witness Laxmansinh Vajesinh Vaghela (PW 17) 57 18 Witness Ranjitsinh Metubha Vaghela, PSO (PW 18) 60 19 Witness Parmabhai Hirabhai (PW 19) 62 20 Witness Bhailal Jagjivan (PW 20) 66 21 Witness Amrutbhai Shingaji Menat (PW 21) 71 22 Witness Zahiruddin Gulamrasul Saiyed (PW 22) 72 Documentary evidence Sr. No. Particulars Exhs. No. Particulars Exhs. 1 Complaint 10 2 Primary Panchnama 12 3 Panchnama of seizure of clothes of deceased 13 4 Inquest Panchnama 18 5 Panchnama of scene of offence 21 6 Copy of muddamal 22, 23, 24 7 Panchnama of investigation of residence of accused 26 8 Panchnama of body of arrested accused Rammilan Chhotelal Dube 29 9 PM Note 31 10 Yadi of Medical Officer to PI, Bhildi 32 11 Panchnama of body of arrested Babupuri Manoharpuri Goswami 34 12 FSL letter 36/1 13 FSL report 36/2 14 Serological report 36/3 15 Panchnama of seizure of clothes of accused 38 16 Copies of muddamal 40 to 47 17 Copy of Panchnama of identification of accused 54 18 Yadi by Circle PI, Deesa to Mamlatdar Deesa for conducting identification parade 58 19 Original copy of Panchnama of identification of accused 59 20 Yadi regarding registration of complaint 61 21 Call details of Mob No.9913685083 67 (page No.1 to 14) 22 Report of PSI, SOG, Palanpur to CPI, Shihori Circle 68 23 Report of PSI, SOG, Palanpur to PSI, Bhildi 69 24 Yadi of Cricle PI, Shihori to SP, Palanpur 73 25 Report of Scientific Officer at the scene of offence 74 26 Receipt of FSL 75 27 Special report of grave offence 76 28 FIR 77 29 Yadi of PSI, Bhildi to Medical Officer, Bhildi 78 30 PM Note 79 31 Receipt of handing over the dead body 80 32 Call form regarding Dog Squad 81 33 Yadi written to SOG 82 34 Report of Unarmed Head Constable, Bhildi to PSO, Bhildi 83 35 Fax massage to SP, Palanpur 84 36 Letter of FSL, Mehsana to Finger Print Expert 85 37 Index 86 8. In criminal trial, the charge is the foundation of the accusation and every care must be taken to see that it is only such evidence tendered with respect to matters put in the charge and not the other matters. If the incident as occurred in a particular manner, then, it must be disclosed before the Court in the same manner as disclosed before the police. If the incident as occurred in a particular manner, then, it must be disclosed before the Court in the same manner as disclosed before the police. The whole prosecution case with regard to the present trial has proceeded on the allegation of charge that the appellant accused and child accused looted the mobile of the deceased and in furtherance of their common intention, the appellant accused gave contract to the child accused for Rs.10,000/- to kill the Pujari of the Shiva temple located at Kailash Tekri in the outskirt of village Vahara, TaL : Deesa, as charged. The child accused in furtherance of common intention inflicted blows of wooden log on the head of sleeping pujari in the temple of Shiva at 07:30 in the intervening night of 07-04- 2008 and 08-04-2008 and caused his death. 9. In the case on hand it does not seem to us that the charge is not properly framed, but the evidence tendered travels outside the accusation stated in the charge, because, while convicting the appellant, the learned Addl. Sessions Judge in para 33 concluded as under:- “(33) In view of the above-mentioned oral and written evidences, such fact is proved that the present accused has, by having common criminal intention with the child accused, caused death of the deceased and looted a mobile phone worth Rs. 2000/-. A strong circumstantial evidence as stated above has been found against the present accused. The complete, strong and trustworthy chain of all of these circumstantial evidences has been proved in such a manner that there does not remain any other option apart from believing that the present accused himself has, by having common criminal intention with the child accused, caused death of the deceased and committed robbery of the mobile phone. As a result, the Prosecution has succeeded in proving that the child accused Babupuri Manoharpuri Goswami, residing at Sanath, Taluka Deesa had engaged the accused Rammilan Chhotelal Dube, residing at Khurda, Taluka Naugov, District Chhatarpur, Madhya Pradesh, by giving a contract of Rs. 10,000/- for killing Rameshwargiriji, pujari of the temple of Lord Shankar, situated on Kailash Tekari in the Sim of Vahra village. 10,000/- for killing Rameshwargiriji, pujari of the temple of Lord Shankar, situated on Kailash Tekari in the Sim of Vahra village. During the night of 7-8/4/2008, before 7:30 Hours on 8/4/2008, the accused Rammilan Chhotelal Dube had killed the pujari Rameshwargiri, who was sleeping in the veranda of the temple of Lord Shankar, by inflicting blows of wooden log on his head and fled after looting the mobile phone of Nokia Company worth Rs. 2000/- of the pujari Rameshwargiri and, thereby, the accused has committed an offence punishable under Sections-302, 392, read with Section-34 of the IPC. Therefore, the Issue No. 1 has been decided in affirmative.” 10. It requires to be noted here that except observations/findings recorded in para 33 of the impugned judgment and order of conviction and sentence, no any other reasons are recorded by the learned trial Judge. In nutshell, there is no whisper made by the learned trial Judge in its judgment about appreciation of evidence, both oral and documentary and the learned trial Judge satisfied itself by reproducing certain part of examination-in-chief of the prosecution witnesses without any appreciation of evidence either way. 11. On reading of charge and conclusion drawn by the learned Addl. Sessions Judge in para 33 of the judgment, it appears that the appellant is charged for sharing common intention to eliminate the Poojari of the temple and he gave a contract to the child accused for Rs.10,000/-, whereas the learned Addl. Sessions Judge found and observed that the child accused, namely, Babupuri Manoharpuri Goswami engaged the appellant accused by giving contract of Rs.10,000/-for killing Rameshwargiri i.e. Pujari of the temple. 12. Unfortunately, the learned Addl. Sessions Judge without considering the nature of accusation charged against the appellant and sufficiency of evidence adduced by the prosecution came to the conclusion that the appellant accused was hired by the child accused to eliminate the deceased Pujari though he is charged otherwise. Despite our repeated queries to learned APP, he could not put his finger on any oral/documentary evidence as to who gave Sopari to whom. In fact, there is no whisper of words by any of the prosecution witnesses on this vital aspect. Despite our repeated queries to learned APP, he could not put his finger on any oral/documentary evidence as to who gave Sopari to whom. In fact, there is no whisper of words by any of the prosecution witnesses on this vital aspect. Leaving aside this aspect and having faced with the situation where the learned trial Judge has not recorded any reason worth the name in his judgment except para 33, we have to appreciate the evidence as adduced before the learned trial Court so as to find out whether charge as framed against the appellant stands proved by cogent and reliable evidence or not. 13. Learned advocate Ms. Bhavika Kotecha appearing for the appellants mainly contended that the impugned judgment of conviction has been passed without assigning any cogent reason and thus, the learned Judge without appreciating oral and documentary evidence led before him, convicted the appellant in clear violation of natural justice and against the settled legal position. She further contended that there is no eye witness to the alleged incident and there is no complete chain of circumstances being proved by the prosecution. Despite such factual position on record, the learned Sessions Judge passed the impugned judgment and order of conviction. 14. On the other hand, learned APP appearing for the State supported the judgment of the Court below and prayed for dismissal of the appeal mainly relying upon the recovery of mobile phone from the possession of the appellant and deposition of PW 1 – complainant Mr. Bachuji Chelji and PW 15 Mr. Mahmad Aslam Gulabkhan Ghasura. 15. We have carefully considered the submissions of learned advocates made at bar and perused the material placed on record. Admittedly, the prosecution case rests on circumstantial evidence only. 16. In view of evidence of PW 9 Dr. Brijesh Vyas and postmortem note at Exh.79, it is an undisputed fact that the deceased Pujari Rameshwargiri died an unnatural death and therefore, it is homicidal death and further all the injuries found on the person of the deceased were ante mortem. As such, there is no contest on this issue that death of the deceased is homicidal death and therefore, the Court is not required to restrain itself on this issue anymore. 17. As such, there is no contest on this issue that death of the deceased is homicidal death and therefore, the Court is not required to restrain itself on this issue anymore. 17. At the outset, we may say that it is fundamental principles of criminal jurisprudence that burden of proof squarely rests on the prosecution and that the general burden never shifts. Similarly, there can never be any conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion cannot take the place of legal proof. 18. The Hon’ble Apex Court in Jaharlal Das Vs. State of Orissa reported in (1991) 3 SCC 27 , has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied: (i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 19. In case of Kali Ram Vs. State of Himachal Pradesh reported in (1973) 2 SCC 808 , the Hon’ble Apex Court has held that it is well settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. 20. Keeping in mind these principles we will now appreciate the evidence adduced before the learned Sessions Judge in order to find out whether the appellant accused has committed the offence. In order to establish the case, the learned APP has relied on the deposition of PW 1 Mr. Bachuji Chelaji – complainant recorded on Exh.9 and deposition of PW 15 Mr. Mahmad Aslam Gulabkhan below Exh.52. Learned APP took us through the deposition of both the witnesses with a view to indicate that deceased Pujari Rameshwargiri had one mobile phone of Nokia company and the same was not found at the scene of offence. On the previous day of the incident, PW 15 Mr. Mahmad Aslam Gulabkhan showed the way of Kailash Tekri to the appellant accused and he also deposed that he made call on the mobile of the deceased, but it was cut off and ultimately, he could talk on the mobile of the deceased on 12.4.2008. Not only that, he handed over recording of the person who talked with him to the investigating agency. It is admitted fact that neither recording nor any voice of the appellant accused got compared with the so called recording provided to the investigating agency. It is a matter of fact that mobile No.9913685083 does not belong to deceased Pujari Rameshwargiri or registered in his name. Similarly, it is also matter of fact that owner of the said mobile is not cited as witness in the present case or examined in the case. In cross examination, PW 15 Mr.Mahmad Aslam Gulabkhan categorically admitted that when he saw the appellant at Bus Stand, at that time, it was 8:30 at night and there was darkness. In connection with the mobile details, concerned investigating officer Mr. Bhailal Jagjivan whose deposition is recorded below Exh.66 disclosed on oath that he gathered outgoing details of said mobile No.9913685083 and it was found that from the said mobile, after the incident, there were two mobile calls made on 9977326849. Said mobile number was of one Mr. Navalkishore Dube. Said Mr. Navalkishore Dube is neither cited as witness in the present case nor is examined. Said mobile number was of one Mr. Navalkishore Dube. Said Mr. Navalkishore Dube is neither cited as witness in the present case nor is examined. In other words, there is no any evidence about ownership of mobile and/or name of the person in whose name, the aforementioned number is registered. Even if some talk took place on the so called mobile of the deceased, such evidence can never be considered to be a circumstance proving involvement of the appellant in the offence in question. The entire prosecution case rests on circumstantial evidence in form of aforementioned mobile number and its call details. But, there is no iota of evidence as to who was talking on the said mobile from the other end or its voice identification. Despite, it has come on record that PW 15 Mr. Mahmad Aslam Gulabkhan produced recording before concerned investigating agency. 21. Baring evidence of PW 1 and 15, as aforesaid, there is no any other circumstantial evidence pointed out by learned APP unerringly to show that there is any circumstance towards the guilt of the appellant accused. The entire prosecution case rests on suspicion only. There is no cogent and reliable circumstantial evidence from which, an inference of guilt is established and thus, the prosecution failed to discharge its burden. As stated herein above, learned APP could not put his finger on any oral/documentary evidence as to who gave sopari to whom to kill deceased Pujari Rameshwargiri. On the contrary, there is no whisper of words by any of the prosecution witnesses on this vital aspect. In nutshell, the entire prosecution case is without any basis or even minimum one circumstance pointing finger to the appellant accused. Since, learned Additional Sessions Judge without recording any finding on evidence came to the conclusion that the appellant is the author of the crime, which, on our appreciation, do not find that prosecution succeeded in establishing its case on any circumstances pointing guilt of the appellant accused or to say that the appellant accused is the author of the crime. 22. The off shot of the above discussion is such that the present appeal deserves to be accepted and accordingly, it is hereby allowed and judgment and order of conviction dated 12.4.2012 rendered in Sessions Case No.159 of 2008 passed by the learned Additional Sessions Judge, Deesa at Banaskantha is hereby quashed and set aside. 22. The off shot of the above discussion is such that the present appeal deserves to be accepted and accordingly, it is hereby allowed and judgment and order of conviction dated 12.4.2012 rendered in Sessions Case No.159 of 2008 passed by the learned Additional Sessions Judge, Deesa at Banaskantha is hereby quashed and set aside. The fine amount, if any, paid by the appellant accused shall be refunded back to the appellant. Since the appellant accused is absconding, he is now not required to surrender to the jail authority to suffer the sentence imposed upon him by way of impugned judgment and order and therefore, if any bailable or non-bailable warrant against the appellant is issued, the same stand cancelled forthwith. 23. Registry is directed to transmit the R & P to the concerned trial Court forthwith.