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2024 DIGILAW 1484 (GUJ)

Thakarshibhai Velabhai Sapra v. State Of Gujarat

2024-07-02

CHEEKATI MANAVENDRANATH ROY, UMESH A.TRIVEDI

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ORDER : (Umesh A. Trivedi, J.) : 1. This is an appeal filed by victim-original first informant under Section 372 of the Code of Criminal Procedure, 1973 (for short “the Code”) challenging the judgment and order of acquittal recorded by the Sessions Judge, Morbi dated 16.01.2023 in Sessions Case No.47 of 2019, whereby respondent-accused nos.2 and 3 came to be acquitted of the charge levelled against them. 2. As per the case of the prosecution, two years prior to the date of incident while deceased-Navghan taking the tractor in a reverse gear, dashed with the parents of accused no.1 causing simple injuries as also on a promise made to accused no.1 to get job for him on payment of Rs.15,000/- at Himmatnagar by the deceased and he did not fulfill the same, incident occurred. As per the case of the prosecution, on 22.12.2018 at the house of respondent no.2 a conspiracy was hatched between the accused. In furtherance of their common intention calling the deceased over the phone and called him at river Koyba, accused no.2 in the trial caught hold of him and accused no.1 gave knife blow on head near the ear causing fatal injury. Thereby, accused are said to have committed an offence of murder as also committed breach of notification published by the District Magistrate holding them liable for an offence of Section 135 of the Gujarat Police Act (for short “the GP Act”). 3. Pursuant to the incident, father of the deceased registered one FIR pursuant to which the case was registered and investigated by the PSI of the concerned police station and on conclusion of investigation, a charge-sheet came to be filed against both the accused for the offences punishable under Sections 302, 120B and 34 of the Indian Penal Code, 1860 as also under Section 135 of the “GP Act”. Since case against the accused was exclusively triable by the court of sessions, learned Magistrate, in whose court it came to be filed, committed the same to the court of sessions. 4. Therefore, a charge vide Exh.12 came to be framed against the accused on 11.11.2019. To prove the case against the accused, prosecution examined in all 22 witnesses, produced and proved approximately 37 documents. On conclusion of trial, arguments of the prosecution as also defense came to be heard. 4. Therefore, a charge vide Exh.12 came to be framed against the accused on 11.11.2019. To prove the case against the accused, prosecution examined in all 22 witnesses, produced and proved approximately 37 documents. On conclusion of trial, arguments of the prosecution as also defense came to be heard. After appreciation of evidence led before the court of learned Sessions Judge, Morbi, he acquitted the accused of all the charges levelled against them, as aforesaid. 5. Heard Mr.Keval G. Brahmbhatt, learned advocate for the appellant. According to his submission, though the case rests on circumstantial evidence, there appears clinching material against the accused and circumstances are complete in nature so as to point at the guilt of the accused and therefore, the order of acquittal recorded by the learned judge is erroneous. According to his submission, the injury found on the person of deceased-Navghan, as deposed to before the court by the doctor is possible by muddamal knife, which is discovered at the instance of accused no.1. At the same time, according to his submission, the pant of the accused no.1 was blood stained having human blood of ‘A’ group, which is of the deceased as opined by the FSL in a serological report, which is produced at Exh.90. He has further submitted that even muddamal weapon knife also contains human blood, that too, of ‘A’ group, which is of the deceased. Since the accused no.1 over whose clothes human blood of ‘A’ group belonging to the deceased found has failed to explain the same, it is important circumstance, which is going against the accused. He has further submitted that over and above, the evidence of discovery of muddamal weapon knife used in commission of offence at the instance of accused no.1, it contained human blood, that too, of ‘A’ group belonging to the deceased, which is further connecting link against the accused and therefore, accused could not have been acquitted of the charges levelled against them. 6. He has further submitted that as coming out from the scene of offence panchnama, there were empty glasses and a bottle suggestive of the fact that all the accused and the deceased together consumed alcohol and since the deceased found dead thereafter it again a circumstance, which accused to explain as it is especially within their knowledge for which they have to account for. 7. 7. Drawing attention of the court to the injury certificate at Exh.64 produced and proved by doctor, who examined accused no.1 himself, who has stated before the doctor in the form of history that the deceased-Navghan gave him a push and thereby, he received the injury. The said injury is in the nature of healed abrasion over right knee joint. According to his submission, failure of the accused to explain that very injury over him is a further connecting link about his involvement into the offence and therefore, they could not have been acquitted. 8. He has further submitted that there are nearly 2 of the witnesses out of 3 independent witnesses before whom accused made an extra judicial confession about their guilt and the manner in which incident occurred in which they killed the deceased. Therefore, it is submitted that all connecting link and the circumstance proved on record goes to show that none else but the accused have committed an offence of murder of deceased-Navghan and prosecution has established all connecting link and therefore, the order of acquittal is required to be interfered with and they be punished in accordance with law. As against that, Mr.Ronak Raval, learned APP submits that since the State has considered the judgment and order of acquittal not appeable, they have not preferred any appeal and he has left it to the discretion of the Court. 9. As against that, Mr.Digvijay Singh Bisht, learned advocate for learned advocate Ms.Divya Panchal for respondent nos.2 and 3 i.e. accused submitted that there is no connecting link as such, which may lead to a conclusion, that too, in an acquittal appeal that none else but the accused have committed an offence and therefore, appeal is required to be dismissed. 10. It is further submitted that panch witnesses to the discovery panchnama have not supported the case of the prosecution as also Investigating Officer has also not deposed to about the volunteering his desire to show weapon of offence concealed and recovery thereof pursuant to the disclosure of information by the accused, which is not deposed to by the Investigating Officer before the Court it is not proved on record that any weapon of offence is discovered, that too, at the instance of respondent no.2- accused. Therefore, find of human blood stain, that too, of ‘A’ group, which belongs to deceased over the knife is of no consequence. According to his further submission, merely because human blood stain is found over the clothes i.e. the pant of respondent no.2-accused is the alone circumstance, which may not lead to a conclusion that none else but the accused committed an offence, that too, of murder. 11. He has further submitted that 3 independent witnesses, who have not supported the case of the prosecution and rest of the witnesses, except panch witnesses, have not witnessed the incident and they do not throw any light on the involvement of the accused and therefore, it is of no use. Out of three independent witnesses examined before the Court, who have not supported the case of the prosecution, two of them are the witnesses before whom accused is stated to have made extra judicial confession. According to the submission of the learned advocate for the accused, extra judicial confession is a weak type of evidence in itself, whereas here it is not proved at all as the eye witnesses have not supported that assertions of the prosecution. It is further submitted that the argument that accused himself had received injury and it is not explained by him either in further statement recorded under Section 313 of “the Code”, which is especially within the knowledge of the accused, is of no use to the prosecution as considering the history given by the accused himself it is not stated that in commission of an offence of murder of the deceased-Navghan, he received that injury for which he was treated. On the contrary, if his history considered as it is that the deceased-Navghan gave him a push by which he received that injury, it has nothing to do with murder of the deceased, that too, by the respondent-accused. Therefore, it is submitted that this appeal is without any merit and therefore, it is to be dismissed, more particularly when, State has considered the impugned judgment and order as not appealable at all at their end being loco perentis. 12. Having heard learned advocates appearing for the respective parties as also after going through the record and proceedings, which was called and available before the Court, let us examine whether this appeal requires to be allowed or not? 13. 12. Having heard learned advocates appearing for the respective parties as also after going through the record and proceedings, which was called and available before the Court, let us examine whether this appeal requires to be allowed or not? 13. As per the case of the prosecution, there is no direct evidence available on record and case rests only on circumstantial evidence. To prove clinching circumstances against the accused, prosecution has examined in all 22 witnesses. However, circumstances pleaded are in a very narrow compass, which can be listed as under:- (i) Discovery of a weapon of offence muddamal knife at the instance of respondent no.1-accused. (ii) Extra judicial confession made by them before witnesses. (iii) Injury on the person of accused no.1, which is not explained, which ought to be explained by him. (iv) Find of human blood of ‘A’ group over the pant of accused no.1. 14. On these broad circumstances learned advocate for the appellant-victim wants us to believe the case to be proved by the prosecution and convict accordingly the accused. However, taking one by one the circumstance whether proved or not let us examine so called discovery of weapon of offence muddamal knife, that too, at the instance of respondent no.1. For that prosecution examined PW-14-Ravirajsinh Abhesinh Parmar at Exh.44. However, he has not supported the case of the prosecution and except the signature below the panchnama, he has not admitted contents thereof, which is given Exh.45. Thus, discovery of muddamal weapon knife, that too, at the instance of accused no.1 is not proved through the deposition of panch witnesses, who witnessed the so called discovery. In absence of evidence available through panch witnesses even the Investigating Officer, who effected discovery of a weapon of offence, can also prove the same through the deposition. However, if deposition of PW-22 at Exh.74- Maheshkumar Ramsinh Solanki, PI of the concerned police station at the relevant time is seen in para 10 of the deposition, he has only stated that “on 25.12.2018, he drew panchnama for discovery of muddamal weapon knife with size thereof. In that deposition, he has not stated anything about the disclosure statement made by the accused in the custody, for willingness to show weapon of offence, which is concealed by him. In that deposition, he has not stated anything about the disclosure statement made by the accused in the custody, for willingness to show weapon of offence, which is concealed by him. Therefore, neither from the deposition of the panch witnesses to the discovery of weapon panchnama nor from the deposition of Investigating Officer, who drawn the discovery panchnama, it can be said that weapon of offence is discovered, that too, at the instance of respondent no.2-accused as required under Section 23 of the Evidence Act. Therefore, most material circumstance about discovery of weapon knife said to be used in commission of offence causing murder of the deceased and having human blood stain of ‘A’ group, which is of the deceased is not available on record. 15. Another circumstance in respect of the injury found on the person of respondent no.2-accused is also of no help to the prosecution. As per the submission of the learned advocate for the appellant since in a history given by the accused that he received the injury by a push given by the deceased on the date of incident at about 11:00 p.m., in absence of any explanation offered by the accused, it can be considered at the most material circumstance against the accused and therefore, that evidence could not have been discarded by the learned Judge for recording an order of acquittal. However, the said submission though attractive, is having no substance in it. In the history, the accused, who received the injury, that too, of healed abrasion has not stated that either while attempting murder of the deceased or in that scuffle with him he received that injury. At the same time, what that history is, injury caused by a push given by the deceased and nothing more. Therefore, the reason for injury is already explained, that too, in the form of history itself. Therefore, it can never be said that injury found on the person of the accused is not explained by him and therefore, that may be the circumstance going against the accused, cannot be accepted. 16. So far as evidence of three independent witnesses, PW-16-Khodabhai Nagarbhai Zapda and Pw-17-Rajubhai Nagarbhai Zapda Exh.55 before whom it is claimed that the accused have made extra judicial confession. 16. So far as evidence of three independent witnesses, PW-16-Khodabhai Nagarbhai Zapda and Pw-17-Rajubhai Nagarbhai Zapda Exh.55 before whom it is claimed that the accused have made extra judicial confession. However, they have not supported the case of the prosecution and therefore, it can never be said that any extra judicial confession is made by the accused before those witnesses. At any rate, extra judicial confession in itself is a very weak piece of evidence and independently as only circumstance it cannot be considered for convicting the accused, that too, for an offence of murder. Whereas in the present case, there is no extra judicial confession said to have been made by the accused is proved before the Court. The third independent witnesses PW-18 Rajubhai Bhupatbhai is also declared hostile and therefore, nothing is available before the Court so as to prove guilt of the accused. If the deposition of PW-18 Rajubhai Bhupatbhai is seen, though he is declared hostile, he has given admissions to the learned APP in his cross-examination. It is stated in the cross-examination of learned APP that Karshanbhai, who is uncle of the deceased informed him that while examining the mobile phone of Navghanbhai at 11:01 p.m. there was one missed call from mobile no.6352949483 and at 11:02 p.m., from the mobile phone of Navghanbhai, there was a call over that number, which is not of Hakabhai, who is uncle of the deceased, but it is the mobile phone of respondent no.2-Ajaybhai Hemubhai Koli. However, any phone call to the deceased either by the mobile phone of accused or anyone else at the time of incident will not prove the guilt of the accused. Even, it will not prove, in absence of any tower location of both the mobile phones proved by the prosecution, at a same place. At any rate, that knowledge is derived by the independent witness from witness Karshanbhai, who himself has no personal knowledge about the incident as well. Not only that if deposition of Karshanbhai PW-12, Exh.40 is examined, he has not so stated that he informed independent witness Rajubhai Bhupatbhai about the facts, which is claimed by that witness in his deposition. If that is so, the deposition of Rajubhai Bhupatbhai even if accepted having so stated in cross-examination after he is declared hostile by learned APP to be true, it falls to the ground. If that is so, the deposition of Rajubhai Bhupatbhai even if accepted having so stated in cross-examination after he is declared hostile by learned APP to be true, it falls to the ground. The derived knowledge from Karshanbhai is no evidence when Karshanbhai has not stated that he informed witness about the same. On the contrary, deposition of PW-12 Karshanbhai Velabhai reflects that police personnel informed him that deceased is killed by respondent no.2-Ajitbhai Hemubhai Koli. Thus, there appears no evidence or a single circumstance, apart from chain of circumstances to be complete, on the basis of which guilt of the accused can be inferred. The last circumstance as submitted by learned advocate for the appellant, find of human blood on the pant of respondent no.2-accused having blood group ‘A’ which is of the deceased even if presumed to be true is the only circumstance based on which, in absence of any explanation offered by the accused, no accused can be convicted, for an offence, that too, of murder. 17. We have examined the entire evidence in detail as also the reasoning given by the learned Judge for recording an order of acquittal, we find no error in it. Even if there are two views possible, in an appeal challenging an order of acquittal, the view, which is in favour of the accused is to be accepted, here no view other than the view that accused is innocent can be inferred from the evidence led before the court and therefore, we are unable to entertain this appeal and hence, it is hereby dismissed.