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2019 DIGILAW 562 (GUJ)

Kanubhai Bhagwanbhai Nayak v. State Of Gujarat

2019-05-07

R.M.CHHAYA, S.H.VORA

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JUDGMENT : (PER : HONOURABLE MR.JUSTICE S.H.VORA) 1. Present criminal appeal has been preferred by the appellant original accused No.1 Mr. Kanubhai Bhagwanbhai Nayak u/s 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 30.9.2011 rendered in Sessions Case No.101 of 2010 by the learned 9th Additional Sessions Judge, Vadodara, whereby the appellant – accused No.1 was directed to undergo sentence for life imprisonment for the offences punishable u/s 302 of the IPC and to pay fine of Rs.1000/-, in default, to undergo RI for one month. However, the learned Sessions Judge gave benefit of doubt to accused No.2 namely Mr. Ashwinbhai Prabhubhai Talpada for the offences punishable u/s 302, 120-B r/w section 34 of the IPC. 2. Brief facts of the prosecution case are such that deceased Harikrishnabhai Narottambhai Patel, aged 52 years and his father deceased Narottambhai Durlabhjibhai Patel, aged 75 years were residing at Tandalja, Taluka Sankheda. It is further the case of the prosecution that deceased Harikrishnabhai is the husband of his sister and the accused also belong to Tandelja, Taluka Sankheda. It is further the case of the prosecution that there was enmity between the deceased and the accused since long. One, Rajubhai Shankarbhai was nephew of accused No.1. Deceased Harikrishna has laid live electric wire in his field two months prior to the incident in question. At that time nephew of accused No.1-Rajubhai came in contact with the live electric wire. In the result he got electrocuted and died. In these circumstances, accused No.1 entertained doubt that both the deceased have intentionally laid the live electric wire in their field only to kill the nephew of accused No.1-Rajubhai. After this incident, accused No.1 was giving threats to kill both the deceased. Because of this enmity, accused have committed murder of deceased Narottambhai and his son Harikrishnabhai in this case. 2.1 It is the say of the prosecution that on 10th February 2010, at about 16:30 hours, both the deceased were going to their field on their scooter. As soon as they reached the State Highway at Naswadi Bodeli, near Govindpura Sim, at that time a truck was coming from Navsari side bearing Registration No.GJ-6-V-6869, driven by accused No.1. Accused No.2 was cleaner of the said truck. The said truck came in a wrong direction and ran over the scooter on which both the deceased were sitting. As soon as they reached the State Highway at Naswadi Bodeli, near Govindpura Sim, at that time a truck was coming from Navsari side bearing Registration No.GJ-6-V-6869, driven by accused No.1. Accused No.2 was cleaner of the said truck. The said truck came in a wrong direction and ran over the scooter on which both the deceased were sitting. After dashing the scooter, the truck driven by the accused fled away from the scene of offence. Because of the intentional collusion of the truck with the scooter, both the deceased, viz. father and son have died on the spot. 2.2 In view of the above compliant being C.R. No.1-8 of 2010 dated 10th February 2010 registered with Bodeli Police Station for the offences punishable under sections 302, 120-B and 34 of the Indian Penal Code, which was investigated by the Police and after recording statements of the witnesses, charge sheet was submitted in the Court of the learned Judicial Magistrate First Class, Sankheda, who committed the case to the Sessions Court. Thereafter the Sessions Court framed charge against both the accused under sections 302, 120-B and 34 of the IPC. Both the accused have denied charges. Therefore, the learned Sessions Judge has recorded evidence of the prosecution and also recorded further statements of the accused under section 313 of the Code of Criminal Procedure. 2.3 After hearing oral arguments of the learned advocates for the parties and after perusal of the written arguments of both the parties, the learned Judge came to the conclusion that the prosecution has proved its case beyond reasonable doubt qua accused No.1. In these circumstances, the learned Judge held appellant - accused No.1 guilty of the offence punishable under section 302 of the IPC and passed order of conviction against the appellant - accused No.1 to suffer life imprisonment. The learned Sessions Judge has given benefit of doubt to accused No.2. The learned Sessions Judge came to the conclusion that the prosecution failed to prove charge under sections 120-B and 34 of the IPC and both the accused have been acquitted of charge under sections 120-B and 34 of IPC. 2.4 Feeling aggrieved by the judgment and order of conviction and sentence of the learned Sessions Court, the appellant original accused No.1 Mr. Kanubhai Bhagwanbhai Nayak preferred Criminal Appeal No.1512 of 2011 before this Court. 2.4 Feeling aggrieved by the judgment and order of conviction and sentence of the learned Sessions Court, the appellant original accused No.1 Mr. Kanubhai Bhagwanbhai Nayak preferred Criminal Appeal No.1512 of 2011 before this Court. Vide judgment and order dated 25.4.2011, this Court confirmed the order of the learned Sessions Judge passed in Sessions Case No.101 of 2010. The appellant – original accused No.1 feeling aggrieved by the judgment of this Court, carried the matter before the Hon’ble Apex Court being Criminal Appeal No.1540 of 2018 (Arising out of SLP (Cri.) No.8739 of 2018). 2.5 Vide order dated 3.12.2018, the Hon’ble Apex Court accepted the appeal of the appellant-original accused No.1 and without going into the merits of the appeal, the Hon’ble Apex Court left all the issues open to be decided by the Division Bench of this Court on merits and in accordance with law. Accordingly, we have reheard the arguments of both the learned advocates appearing for the respective parties and thoroughly examined the R & P of Sessions Case No.101 of 2010 and minutely examined the oral and documentary evidence adduced before the learned Sessions Court vis-à-vis findings recorded by the learned Additional Sessions Judge concerned. 2.6 Upon appreciation of submissions made at bar, we found that the learned Additional Sessions Judge has not at all considered and marshalled the evidence examined on behalf of the prosecution, particularly evidence of PW 9 Mr. Sokarshah Abdulshah Diwan at Exh.68 and PW 11 Mr. Kanchanbhai Manibhai Patel at Exh.72, who were eye witnesses to the alleged double murder committed at about 16:30 hrs. on 10.2.2010 when both the deceased were on their Bajaj scooter and were going towards their field in village Tandalja and had reached near village Govindpura on Naswadi Bodeli State Highway and pronounced unreasoned verdict. 3. Before we consider the submissions made at bar, it is necessary to reproduce the observations made by the Hon’ble Apex Court in case of Ajay Singh and another Vs. State of Chhattisgarh and another reported in (2017) 3 SCC 330 and more particularly, para 1 and 13. “1. Performance of judicial duty in the manner prescribed by law is fundamental to the concept of rule of law in a democratic State. It has been quite often said and, rightly so, that the judiciary is the protector and preserver of rule of law. “1. Performance of judicial duty in the manner prescribed by law is fundamental to the concept of rule of law in a democratic State. It has been quite often said and, rightly so, that the judiciary is the protector and preserver of rule of law. Effective functioning of the said sacrosanct duty has been entrusted to the judiciary and that entrustment expects the courts to conduct the judicial proceeding with dignity, objectivity and rationality and finally determine the same in accordance with law. Errors are bound to occur but there cannot be deliberate peccability which can never be countenanced. The plinth of justice dispensation system is founded on the faith, trust and confidence of the people and nothing can be allowed to contaminate and corrode the same. A litigant who comes to a court of law expects that inherent and essential principles of adjudication like adherence to doctrine of audi alteram partem, rules pertaining to fundamental adjective and seminal substantive law shall be followed and ultimately there shall be a reasoned verdict. When the accused faces a charge in a court of law, he expects a fair trial. The victim whose grievance and agony have given rise to the trial also expects that justice should be done in accordance with law. Thus, a fair trial leading to a judgment is necessitous in law and that is the assurance that is thought of on both sides. The exponent on behalf of the accused cannot be permitted to command the trial as desired by his philosophy of trial on the plea of fair trial and similarly, the proponent on behalf of the victim should not always be allowed to ventilate the grievance that his cause has not been fairly dealt with in the name of fair trial. Therefore, the concept of expediency and fair trial is quite applicable to the accused as well as to the victim. The result of such trial is to end in a judgment as required to be pronounced in accordance with law. And, that is how the stability of the creditability in the institution is maintained. 13. Section 354 provides for language and contents of the judgment. The said provision reads as follows:- “354. The result of such trial is to end in a judgment as required to be pronounced in accordance with law. And, that is how the stability of the creditability in the institution is maintained. 13. Section 354 provides for language and contents of the judgment. The said provision reads as follows:- “354. Language and contents of judgment.- (1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353,- (a) shall be written in the language of the Court; (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the IPC (45 of 1860 ) or other law under which, the accused is convicted and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the Indian Penal Code (45 of 1860 ), and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. (4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every order under section 117 or subsection (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.” 4. Similarly, it is worthwhile to note that the Hon’ble Apex Court in the case of Mukhtiar Singh and another Vs. State of Punjab reported in (1995) 1 SCC 760 after considering the provisions of section 354(1)(b) of the Code of Criminal Procedure, 1973 observed that the judgment of Sessions Court merely containing conclusions and not reasons for arriving at the conclusions is not sustainable. It is further observed that decision does not merely means conclusion but includes reasons. 5. Needless to say that the learned Additional Sessions Judge while dictating and pronouncing the judgment and order of conviction and sentence in a double murder case like present one, he discussed the case of prosecution, procedural aspects of the case including further statement recorded u/s 313 of the Code, made perusal of all 20 prosecution witnesses, recorded arguments of both the sides, framed points of determination, discussed motive behind the commission of offence, clarified the scene of offence, scientifically examined the scene of offence, relied upon the extra judicial confession made by the appellant before PW 12 – Tushar Hemantkumar Shah at Exh.73, role played by the original accused No.2 as a conductor in the vehicle involved, hatching of conspiracy inter se with a common intention shared by the appellant – original accused No.1 and original accused No.2, as also adverted to position of law u/s 300 of the IPC and important factual and legal issue raised before it and thereafter, the Court started discussion of evidence for its appreciation from para 11 to 14 of the judgment. On perusal of para 11 to 14 of the judgment under challenge, we noticed that there is a superficial discussion made with regard to the important aspects of the case in a serious case like present one, which does not fulfill the mandate of Section 354(1)(b) of the Code in its true letter and spirit. On perusal of para 11 to 14 of the judgment under challenge, we noticed that there is a superficial discussion made with regard to the important aspects of the case in a serious case like present one, which does not fulfill the mandate of Section 354(1)(b) of the Code in its true letter and spirit. On our minute examination of judgment from para 11 onwards, we have noticed that the crucial and important eye witnesses i.e. PW 9 Mr. Sokarshah AbdulshahDiwan at Exh.68 and PW 11 Mr. Kanchanbhai Manibhai Patel at Exh.72 have not been properly appreciated and on the point how and in what manner, they claimed to have witnessed the occurrence itself and why their testimony requires acceptance so as to convict the appellant-original accused No.1 as required under the provisions of section 354(1)(b) of the Code as regard considering and discussing the evidence of said two witnesses vis-a-vis the arguments addressed by the defence. Overall impression which we gathered from the observations made in para 11 of the judgment onwards in reference to context of such crucial witnesses, decision arrived at so as to justify the conviction are more appearing to the conclusion drawn and not the reasons arrived at by the Court below vis-à-vis the overall decision making process by the Court below added vulnerability to the decision drawn in whatever findings as are arrived at by appreciating the evidence of two crucial witnesses in the present case. Thus, the judgment contains conclusion and not the reasons for arriving at the conclusion is not sustainable in view of decision of the Honourable Apex Court delivered in the case of Mukhtiyar Singh (supra). 6. For the sake of repetition, we may state here that the observations made by the learned Additional Sessions Judge in para 11.4 creates an impression as if the Court disbelieved above two crucial witnesses to the case and/or it is not sure as to whether their testimony is worthy of credence or not, to which, again, the learned Judge in a double murder case like present one has not marshalled the evidence of two witnesses and thus, the judgment lacks proper appraisal of evidence adduced by the prosecution to prove the guilt of the appellant – original accused No.1. Since the learned Additional Sessions Judge dealt with a case in a per functionary fashion, which is not at all the purpose and object of Section 354 (1) (b) of the Code, inasmuch as the decision by the Court is without appreciation, marshalling and adverting to the evidence led before it. There is nothing available for the appellant u/s 374 of the Code to invoke jurisdiction to reappreciate the evidence as also assailed the decision of guilt arrived at and therefore, in light of the decision of the Hon’ble Apex Court in the case of State of Andhra Pradesh Vs. Gowthu Ranghunayakulu and others reported in (1986) 4 SCC 764 , we have to record that the judgment under challenge is without assigning any reasons as also non-appreciation of evidence of two crucial witnesses as observed and made in para 11.5 of the judgment, which is nothing but an abrupt end of the case when it comes to overall assessment of the testimony of the two witnesses of the case. 7. The off shot of the above discussion is such that the judgment lacks appreciation of evidence and contains conclusion, but without reasons and therefore, the judgment of conviction and sentence does not fulfill pre-requisite to section 354(1)(b) of the Code. 8. In the present case, the occurrence of double murder took place on 10.2.2010 i.e. more than nine years ago and the conviction was recorded on 30.9.2011 i.e. 8 years ago. But looking to the manner in which the judgment has been rendered by the learned Additional Sessions Judge, it appears that there are no reason assigned by the learned Additional Sessions Judge on the various conclusions drawn by him and therefore, it is appropriate to remand the case to the Sessions Court for writing fresh judgment after providing opportunity of hearing to both the sides on the basis of evidence which is already on record. As such, we could have examined and analyzed the evidence to determine the guilt or otherwise of the appellant-accused No.1, but in our opinion, it may prejudice either party as it would deprive the party concerned of his right of first appeal to this Court. So, we have thought it fit after setting aside the judgment under appeal to remand the case to the Sessions Court concerned for its fresh disposal in light of observations made by us as above. So, we have thought it fit after setting aside the judgment under appeal to remand the case to the Sessions Court concerned for its fresh disposal in light of observations made by us as above. Since the case is old, the concerned learned Sessions Judge is directed to decide the sessions case as expeditiously as possible and dispose it of on merits, preferably within a period of four months from the date of receipt of order of this Court. 9. Since we are remanding the case for writing fresh judgment by the concerned learned Sessions Judge after hearing both the parties in light of observations made herein above, we make it clear that we have not expressed any opinion regarding the merits of the case and anything observation in the present judgment is limited to the extent of showing that the conclusion drawn by the learned Judge is without reasons on merits of the case and therefore, it shall not be construed expressly or impliedly as any opinion expressed by this Court on merits of the case. 10. Registry is directed to transmit the R & P to the concerned Sessions Court forthwith. The appeal stands disposed of accordingly.