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CR.A/125920/2003 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1259 of 2003
With
CRIMINAL
APPEAL No. 1168 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
SONU
@ GAJENDRASINH DASHRATHSINH SISODIYA - Respondent(s)
=========================================================
Appearance
:
MR
DEVANG VYAS ADDL. P.P. for
Appellant(s) : 1,
MR BK OZA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 12/01/2010
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
Both
these Criminal Appeals arise out of judgment and order rendered by
learned Additional Sessions Judge, Fast Track Court, Modasa on
5.7.2003 in Sessions Case No.94 of 2002 whereby the learned trial
Judge was pleased to record conviction of original accused, Sonu
alias Gajendrasinh Dashrathsinh Sisodiya, who is appellant in
Criminal Appeal No.1168 of 2005 and respondent in Criminal Appeal
No.1259 of 2003 for commission of offences punishable under Sections
304 Part I, 435, 404 and 201 of the Indian Penal Code (‘IPC’ for
short) and was sentenced to undergo R.I. for 5 years and fine of
Rs.500/- and i.d., S.I. for one month for the offence punishable
under Section 304 Part I IPC; R.I. for six months and fine of
Rs.500/- and i.d., S.I. for one month for the offence punishable
under Section 435 IPC; R.I. for six months and fine of RS.500 and
i.d., S.I. for one month for the offence punishable under Section 404
IPC and R.I. for one year and fine of Rs.500 and i.d., S.I. for one
month for the offence punishable under Section 201 IPC and the
substantive sentence of imprisonment were ordered to run
concurrently.
The
prosecution case as unfolded during the course of trial is that on or
about 8.6.2002 accused Sonu alias Gajendrasinh Dashrathsinh Sisodiya
was performing his duty as cleaner in truck No.HR 38 G 7348 and
deceased Abdulgani Shaikh was the driver of the truck. It is alleged
that both the accused and deceased driver Abdulgani belonged to
Gaziabad and the truck was owned by one Sunit Yashpal Diwan. On
2.6.2002 the deceased driver Abdulgani along with cleaner, accused
Sonu alias Gajendrasinh Dashrathsinh Sisodiya and one second driver
Subhanali left Gaziabad for Mumbai carrying goods in the truck. On
4.6.2002 they reached Mumbai and on 6.6.2002 they left Mumbai for
coming to Delhi carrying oil barrels in the truck. It is the case of
prosecution that when the drivers were at Mumbai some dispute took
place and the accused quarrelled with both the drivers i.e., deceased
driver Abdulgani and the second driver Subhanali. On account of the
quarrel the second driver Subhanali did not join them and he
continued to stay at Mumbai. During the night hours of 7.6.2002 the
truck driven by deceased Abdulgani wherein the accused was travelling
in capacity as cleaner reached near Isrol village on
Modasa-Shyamalaji Road. On account of some mechanical defect the
truck was required to be stopped. It is the prosecution case that
during night hours the deceased driver Abdulgani intended to cause
unnatural act with the accused Sonu. It is further case of the
prosecution that at the time of the incident deceased driver
Abdulgani had cash amount of Rs.18,000/- With a view to rob the
amount and keeping grudge in mind, the accused allegedly inflicted a
blow with tommy on the head of the deceased who at the relevant time
was sleeping on the roof top of a container in the truck. The accused
thereafter set the truck to fire and took the cash amount from the
truck and ran away. During early morning of 8.6.2002 it was noticed
that the truck was on fire and therefore police was called who in
turn called fire brigade. The fire was extinguished and it was found
that the dead body of deceased driver Abdulgani was lying on the roof
top of a container in the truck. The contact number of the owner of
the truck was painted on the body of the truck and the owner of the
truck i.e., P.W.14, Sunit Yashpal Diwan, was contacted. Upon receipt
of the information Sunit Yashpal Diwan reached the place of the
incident. The incident was reported to Modasa Rural Police Station by
PSI Mr.Dixit and his FIR was registered. During the course of
investigation, statements of material witnesses were recored. On
13.6.2002 the accused came to be arrested. The accused in presence of
panchas and police officers discovered the muddamal weapon tommy and
from his possession cash amount to the tune of Rs.8,700/-, one shirt
and a pair of shoes were recovered. After collecting required
material for the purpose of lodgment of charge sheet the charge sheet
came to be filed in the Court of learned JMFC, Modasa for commission
of offences punishable under Sections 302, 435, 404 and 201 IPC.
Since the offences were exclusively triable by the Court of Sessions,
the learned JMFC, Modasa committed the case to the Court of Sessions
at Modasa which was registered as Sessions Case No.94 of 2002.
The
learned trial Judge framed charge against the accused at Ex.1 for the
commission of offences punishable under Sections 302, 435, 404 and
201 IPC to which the accused pleaded not guilty and claimed to be
tried and thereupon the prosecution examined witnesses and adduced
oral as well as documentary evidence. After the prosecution concluded
its oral evidence, the trial Court recorded further statement of the
accused under Section 313 of the Code of Criminal Procedure (‘Cr.PC’
for short) and the accused in his further statement denied generally
all the incriminating circumstances put to him by the trial Court and
stated that he was falsely implicated in this case and that the cash
amount and the cloth seized from him belonged to his father.
The
trial Court after appreciating the evidence on record and the
submissions made on behalf of both the sides ultimately came to the
conclusion that the prosecution has successfully proved the
involvement of the accused in the incident. However, the trial Court
recorded acquittal of the accused for the offence of murder
punishable under Section 302 IPC but recorded his conviction for the
offence of culpable homicide not amounting to murder punishable under
Section 304 Part I IPC together with other offences punishable under
Sections 435, 404 and 201 of IPC and awarded sentence as herein above
referred to in this judgment.
Feeling
aggrieved by and dissatisfied with the order of acquittal recorded by
the trial Court for the offence punishable under Section 302 IPC, the
State of Gujarat preferred Criminal Appeal No.1259 of 2003 under
section 378 (1)(3) of the Cr.P.C. The accused in turn challenged his
conviction by preferring Criminal Appeal No.1168 of 2005 under
Section 374 of the Cr.P.C.
Heard
learned advocate Mr. B.K. Oza for the original accused (appellant in
Criminal Appeal No.1168 of 2005 and respondent in Criminal Appeal
No.1259 of 2003) and learned Addl. P.P. Mr. Devang Vyas for the State
of Gujarat.
Learned
advocate Mr. Oza for the accused submitted that the prosecution case
rests solely upon circumstantial evidence. The circumstances relied
upon by the trial Court are not such which can be considered to be
sufficient for the purpose of recording the conviction of the
accused. The circumstantial evidence relied upon by the trial court
cannot be said to have been duly proved. The theory of the deceased
having last seen together with the accused cannot be accepted for the
simple reason that when the witnesses reached the place of the
incident the accused was not found there in the truck. That the
prosecution failed to prove beyond reasonable doubt the recovery of
tommy and cash amount from the accused. Therefore it is submitted
that the appeal preferred by the accused be allowed.
About
the State appeal, learned advocate Mr. Oza submitted that though the
accused deserves acquittal, so far as the appeal preferred by the
State of Gujarat is concerned, the trial Court rightly came to the
conclusion that the offence which can be said to have been
constituted in this case is not murder but culpable homicide not
amounting to murder. The medical evidence reveals that this is a case
of solitary blow. The accused had ample opportunity to inflict more
blows. If the prosecution evidence as it is considered the deceased
driver demanded unnatural act which provided grave and sudden
provocation to the accused. It is further submitted that the accused
had already served out the sentence and he is not now in jail.
Therefore it is submitted that the appeal preferred by the State of
Gujarat under Section 378 of the Cr.P.C. may be dismissed.
Per
contra, the learned Addl. P.P. Mr. Vyas vehemently opposed the appeal
preferred by the accused and submitted that the trial Court has
rightly recorded conviction of the accused as the prosecution has
successfully proved chain of circumstantial evidence. The trial Court
has rightly appreciated the evidence on record. The circumstances are
strong enough to record the conviction of the accused.
The
learned Addl.P.P. for the State of Gujarat submitted that however the
trial Court has erred in recording acquittal of the accused of the
offence of murder punishable under Section 302 IPC. The medical
evidence reveals that though there was a solitary injury the injury
was on vital part of the body i,.e., head and that brain matter had
come out from the wound. That the medical evidence suggests that the
injury was sufficient in ordinary course of nature to cause death.
Therefore it is submitted that the trial Court should have recorded
the conviction of the accused for the offence of murder punishable
under Section 302 IPC. Ultimately it is submitted that the appeal
preferred by the State of Gujarat under Section 378 of the Cr.P.C.
may be allowed.
We
have examined the record and proceedings in context with the
submissions made by the rival sides.
After
appreciating and reanalysing the evidence on record it clearly
transpires that the prosecution case solely rests upon the
circumstantial evidence. It further transpires that the circumstances
relied upon by the prosecution are (i) the accused having been last
seen together in the company of the deceased, (ii) soon after the
incident the accused who was serving in the truck as cleaner left the
truck and was absconding, (iii) the accused came to be apprehended on
13.6.2002 and in presence of panchas the accused discovered the
muddamal weapon tommy which was used in commission of the offence and
that from the search of his person the amount of booty i.e., cash
amount of Rs.8,700/- came to be seized and (iv) strong motive
available to the accused to cause death of the deceased.
We
have gone through the evidence of all 19 witnesses examined by the
prosecution but it transpires that the evidence of P.W.14, Sunit
Yashpal Diwan recorded at Ex.34, bears importance. He is the owner of
the truck. Considering his evidence it clearly transpires that the
truck bearing No.HR 38 G 7348 belonged to him and in the truck
deceased Abdulgani was employed as a driver and the accused Sonu was
employed as cleaner. According to his evidence, on 2.6.2002 both the
deceased driver Abdulgani and the cleaner accused Sonu and the second
driver Subhanali left Gaziabad for Mumbai carrying goods in the
truck. On 4.6.2002 they reached Mumbai and the goods were unloaded
from the truck. According to his version, he received a telephone
call from his driver Abdulgani from Mumbai that he had received
Rs.18,000/- by way of freight charges. However, he informed that the
cleaner accused Sonu was quarrelling with him and the second driver
Subhanali. Thereafter because of the quarrel the second driver
Subhanali stayed in Mumbai but on 6.6.2002 carrying oil barrels in
the truck, driver Abdulgani and the accused left Mumbai for Gaziabad.
It has come in evidence that during the night falling between
7.6.2002 and 8.6.2002 when the truck reached near village Isrol on
Modasa-Shyamalaji Road, because of some mechanical defect the truck
was parked on the road.
It
is further pertinent to note that considering the evidence of the son
of deceased driver Abdulgani i.e., P.W.18, Shahalam Abdulgani, he
deposed that the deceased was his father and was employed as driver
in the truck. According to his evidence, from Mumbai his deceased
father along with the accused Sonu left for Gaziabad.
Thus
considering the evidence of the owner of the truck i.e., P.W.14,
Sunit Yashpal Diwan and the son of deceased i.e., P.W.18, Shahalam
Abdulgani it is clear that the deceased was employed as driver and
accused was employed as cleaner in the truck owned by Sunit Yashpal
Diwan. It has further become clear that from Mumbai they both left
for Gaziabad in the truck. Under such circumstances, we are of the
considered opinion that the trial Court rightly came to the
conclusion that it was the accused who accompanied the deceased at
the time when the incident occurred. It is further pertinent to note
that the evidence further reveals that soon after the incident the
accused was not found near the truck. The truck was set to fire by
him. He was found absconding and he could be arrested only after
about a week on 13.6.2002. It is further pertinent to note that in
the further statement recorded under Section 313 of the Cr.P.C., he
nowhere explains his absconding, or nowhere explains as to how the
incident took place. It is further pertinent to note that considering
Section 106 of the Evidence Act, it is clearly provided that when any
fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. In the instant case, even in further
statement recorded under Section 313 of the Cr.P.C., no explanation
is forthcoming from the part of the accused about the incident or
about his absconding.
Evaluating
the evidence on record and especially considering the evidence of the
owner of the truck i.e,. Sunit Yashpal Diwan, it clearly transpires
that before leaving Mumbai the accused had quarrelled with the
deceased. Moreover, the accused was knowing that the deceased had
received a sum of Rs.18,000/- by way of freight charges of the truck.
Because of the quarrel the second driver i.e., Subhanali did not
think it fit to travel in the truck and he continued to stay in
Mumbai. When such is the situation we are of the considered opinion
that the prosecution has proved the motive in the instant case.
However,
the prosecution attempted to adduce the evidence regarding alleged
extra judicial confession made by the accused before the owner of the
truck i.e., P.W.14, Sunit Yashpal Diwan. On this count if the
evidence of P.W.14, Sunit Yashpal Diwan is appreciated, it transpires
that the extra judicial confession was made by the accused in the
police station in presence of police officers. When such is the
situation it cannot be said that the prosecution has successfully
proved the circumstance i.e., the extra judicial confession allegedly
made by the accused before the owner of the truck. Needless to say
that the evidence in the form of extra judicial confession is
otherwise a very weak evidence. Even if in this case the evidence
regarding extra judicial confession is not at all taken into
consideration, as stated above, the prosecution has adduced cogent
and convincing evidence regarding the accused having been last seen
together in the company of the deceased, about his act of absconding
soon after the incident and also about the strong motive available to
the accused to kill the deceased.
Moreover,
the evidence reveals that in presence of panch P.W.3, Bharatkumar
Mohanbhai, the accused discovered the muddamal weapon, tommy, vide
discovery panchnama Ex.11. Even the Investigating Officer, P.W.19,
PSI Dixit supports this part of the evidence. Moreover, the evidence
further reveals that from the possession of the accused an amount of
Rs.8,700/- came to be recovered. No satisfactory explanation is
forthcoming about the cash amount recovered from the accused.
Examining
the medical evidence on record and especially the evidence of P.W.6,
Dr. Patel it clearly transpires that according to his evidence the
solitary injury found on the left side of the head of the deceased
was possible by the muddamal weapon tommy discovered by the accused.
Thus
we are of the considered opinion that the prosecution successfully
proved the chain of circumstantial evidence. The chain is well
established. The trial Court therefore rightly recorded the
conviction of the accused and his involvement in the incident.
However,
Learned Addl. P.P. Mr. Vyas for the State of Gujarat submitted That
the trial Court has erred in recording the acquittal of the accused
for the offence of murder punishable under Section 302 IPC. It is
submitted that the medical evidence reveals that though the accused
inflicted solitary blow on the head of the deceased, at the time of
the incident the deceased was sleeping and the injury on head
sustained by the deceased was very serious as brain matter had come
out from the wound. Therefore it is submitted that the appeal
preferred by the State of Gujarat be allowed and the conviction of
the accused may be recorded for the offence of murder punishable
under Section 302 IPC.
We
have given our thoughtful consideration to the submissions made by
the learned Addl. P.P. Mr. Vyas. Examining medical evidence on record
it becomes clear that the deceased sustained solitary injury above
the left eye on frontal region on his head. The injury resulted into
fracture of frontal bone and at the time of post mortem brain matter
was found in the wound. The cause of death is opined to be shock due
to intra-cranial injury.
We
have carefully examined the evidence of medical officer Dr. Patel and
post mortem report Ex.20. Appreciating the evidence on record, the
trial Court came to the conclusion that the offence which can be said
to have been constituted is culpable homicide not amounting to murder
and not murder. There is no dispute that the deceased sustained a
solitary blow. It has come in evidence that at the time of the
incident except the deceased and the accused, nobody was present.
Nothing emerges from record that the deceased offered any resistance.
In such circumstances there was sufficient opportunity to the accused
to inflict more blows. According to the prosecution case the accused
inflicted only solitary blow with tommy on the person of the deceased
and thereafter he left the truck. The subsequent act of setting the
truck to fire cannot be linked with the cause of death because there
is no medical evidence on record to come to the conclusion that the
deceased had sustained any burn injuries. We have examined the
judgment rendered by the trial Court and the trial Court in paragraph
30 of the judgment elaborately discussed this aspect of the matter
and then came to the conclusion that considering the medical evidence
on record and the facts and the circumstances under which the
incident took place, the offence which can be said to have been
constituted is culpable homicide not amounting to murder punishable
under Section 304 Part I IPC and not murder punishable under Section
302 IPC. We do not find any illegality or infirmity in the judgment
rendered by the trial Court while recording acquittal of the accused
for the offence of murder and while recording conviction of the
accused for the offence punishable under Section 304 Part I IPC. We
do not find any need to interfere with the findings arrived at by the
trial Court and the ultimate conclusion in the impugned judgment.
In
the result, we are of the considered opinion that both the appeals
are devoid of any merits and deserve dismissal.
For
the foregoing reasons, Criminal Appeal No.1259 of 2003 and Criminal
Appeal No.1168 of 2005 stand dismissed.
(Ravi
R. Tripathi, J.)
(J.C.
Upadhyaya, J.)
…
(karan)
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