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CR.A/214/1996 2/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 214 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
HONOURABLE
MR.JUSTICE D.N.PATEL
=========================================================
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 ?
=========================================================
NARANBHAI
HIRABHAI MOCHI - Appellant
Versus
STATE
OF GUJARAT - Opponent
=========================================================
Appearance :
MRS
SHILPA R SHAH for the Appellant.
MS
D.S.PANDIT, APP for the
Opponent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
and
HONOURABLE
MR.JUSTICE D.N.PATEL
Date
: 11/11/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.N.PATEL)
1. This
appeal has been preferred against the judgement and order of
conviction and sentence passed by learned Additional Sessions Judge,
Sabarkantha, Himmatnagar, Camp at Modasa vide order dated 14th
February,1996 in Sessions Case No.11 of 1995, whereby the present
appellant has been convicted and sentenced to undergo life
imprisonment for the offence punishable under Section 302 of the
Indian Penal Code and to pay a fine of Rs.500/-, in default, to
undergo further simple imprisonment of one month. The appellant has
also been convicted for an offence punishable under Section 404 of
the Indian Penal Code, but, no separate sentence has been awarded for
this offence. Against this order, the present appeal has been
preferred.
2. Brief
facts of the prosecution case, are as under:
It
is the case of the prosecution that original complainant Mr.B.N.Barot
– P.W.No.14, P.S.I., Malpur Police Station, District: Sabarkantha,
received an information from Ambaliya Outpost from P.W.No.2 Somaji
Kohayaji, Head Constable that a deadbody of one young boy was lying
near temple of Gebimata. Thereafter, P.S.I., Malpur Police Station
had gone to the place, Inquest Panchnama and other panchnama were
drawn. FIR was filed on 22nd October,1994. Dead body was
sent for postmortem. Postmortem was carried out by P.W.No.1 on 23rd
October,1994 at about 7:30 to 8:30 a.m.. Doctor opined that prior to
36 to 40 hours before postmortem, murder of the deceased must have
been caused. Several injuries were found upon the dead body of the
deceased. As per prosecution, these injuries were caused to the
deceased by stones. Father of the deceased, who is P.W.No.5 was in
search of his son, who sent the deceased to sell food grain to
P.W.No.4, who purchased food grain and paid Rs.177/- to the deceased.
3. It
is the case of the prosecution that Suraji Bapuji had seen the
deceased and the appellant together, at evening hours on 21st
October,1994. The case of the prosecution is based upon circumstance
last seen together. Thereafter, dead body of the deceased was found.
There is no eye-witness to the incident. The whole case is based upon
circumstantial evidence. Investigation was carried out and
charge-sheet was filed. Sessions Case was registered against the
appellant. The appellant has been convicted on the basis of
circumstantial evidence and sentence of life imprisonment has been
awarded by the Trial Court. Against this order, the present appeal
has been preferred by the appellant.
4. We
have heard learned counsel for the appellant, who has submitted that
prosecution has failed to prove the case against the appellant,
beyond reasonable doubt. There are lot of omissions and
contradictions in the deposition of the witnesses, especially in
depositions of P.W.Nos.3 and 5. These omissions and contradictions
have been proved with the help of deposition of P.W.No.14, who is
P.S.I., Malpur Police Station. It is further submitted that there is
no eye-witness to the incident and whole chain of circumstances has
not been proved against the present appellant, so as to come to the
conclusion that the appellant has committed the murder of the
deceased. In fact, as per learned counsel for the appellant, there is
no evidence at all, which connects the appellant with the murder of
the deceased. The appellant is working as a cobbler. If the case of
the prosecution is taken on its highest pitch, there were few blood
stained on the shirt of the accused. Otherwise, there is no evidence
at all against the appellant-accused. This aspect of the matter has
not been appreciated by the Trial Court. The whole deposition is not
useful to the prosecution as most of the part of the deposition
stated in the examination-in-chief was never stated before the
police, which is proved by deposition of P.W.No.14. There are
material omissions, contradictions and improvements and, therefore,
these witnesses i.e. P.W.Nos.3 and 5 are not trustworthy witnesses.
This aspect of the matter has not been appreciated by the Trial Court
and, therefore, the impugned judgement and order of conviction and
sentence passed by the Trial Court, deserves to be quashed and set
aside.
5. Learned
counsel for the appellant submitted that admission of the accused in
presence of panchas during custody of police, as stated by the
panch-witnesses cannot be a basis for conviction. This aspect of the
matter has not been appreciated by the Trial Court and, therefore,
order of conviction deserves to be quashed and set aside.
6. We
have heard learned Additional Public Prosecutor on behalf of the
State, who has submitted that there is enough evidence against the
present appellant. P.W. No.3 has clearly stated in his deposition at
Exh-14 that he has seen the deceased in the company of the present
appellant on 21st October,1994 at evening hours. Looking
to the deposition of P.W.No.1 ? Dr.Nayankumar Dineshkumar
Swaminarayan at Exh-8, murder of the deceased had taken place prior
to 36 to 40 hours before the postmortem. Postmortem was performed on
23rd October,1994 at about 7:30 a.m. to 8:30 a.m.. Thus,
it is submitted by learned Additional Public Prosecutor that most of
the circumstances prove beyond reasonable doubt that last seen
together. It is further submitted that looking to the deposition
given by P.W.No.4 at Exh-15, who has purchased food grain and paid
Rs.177/- to the deceased. Wallet of the deceased was also found from
the place of offence. Looking to the deposition of P.W.No.5 at
Exh-17, who is father of the deceased, it is stated by the father
that he was in search of his son. He has stated the fact about
selling of food grain, which has supported the evidence of P.W.No.4.
It is submitted by learned Additional Public Prosecutor that blood
stains on the clothes of the accused was recovered, which is having
same blood group of the deceased, as per Serologist Report. It is
submitted by Learned Additional Public Prosecutor that no error has
been committed by the Trial Court by convicting the
appellant-accused, as the circumstance are proved beyond reasonable
doubt against the present appellant and, therefore, impugned
judgement and order of conviction and sentence passed by the Trial
Court may not be interferred with by this Court.
7. Having
heard the learned counsel for both the sides and looking to the
evidence on record, it appears that the present case is full of
omissions, contradictions and improvements. Material evidence is of
P.W.Nos.3 and 5, which are examined at Exh-14 and 17. The offence has
taken place at any time prior to 36 to 40 hours before the
postmortem, which was performed on 23rd October,1994 at
about 7:30 a.m. to 8:30 a.m. Looking to the deposition of P.W.No.3,
it appears that he is claiming last seen together the deceased in the
company of the appellant on 21st October,1994 at evening
hours, who is relative of the deceased. Looking to his status in the
society, he is responsible person. He has not stated this fact of
last seen together in his deposition. He stated that the appellant
was walking ahead and behind him, the deceased was walking. This is
an improvement, which is material one, looking to para-6 of the
deposition of P.W.No.14 at Exh-34, who is P.S.I., Malpur Police
Station. Thus, there is improvement by this P.W.No.3 in his
deposition before the Court. Likewise, this witness has never stated
this fact before the father of the deceased, who is P.W.No.5 namely
Somabhai Fulabhai. When father had gone in search of his son to
P.W.No.3, this fact was never stated by P.W.No.3 before P.W.No.5.
P.W.No.5 has also not stated this fact when he met Suraji Bapuji.
P.W.No.3 has stated to Somabhai that he had seen his son with the
appellant on 21st October,1994 at evening hours. Looking
to the cross-examination of this P.W.No.3, they are also suggestive
about desire that P.W.No.3 wanted to purchase the land of the
appellant, but, the appellant had sold the land to some one else. As
a cumulative effect of all the aforesaid facts and looking to the
deposition of P.W.No.3 read with deposition of P.W.No.14 at Exh-34,
P.W.No.3 is not a trustworthy witness. This aspect of the matter has
not been appreciated by the Trial Court.
8. When
prosecution case is based upon circumstantial evidence, motive to
commit murder ought to be established by the prosecution. Looking to
the facts of the present case and evidence on record, prosecution has
failed to prove the motive against the present appellant. A lumpsum,
general and vague allegation against the present appellant, without
evidence, is not sufficient to convict the appellant. It is the
prosecution case that initially two umbrellas were given to the
appellant for repairing and the appellant had not repaired these two
umbrellas and, therefore, P.W.No.5 sent his son to get umbrellas or
money back from the appellant. No umbrella is recovered during
investigation. Looking to the evidence by P.W.Nos.3 and 5 and as
stated hereinabove, the improvement that P.W.No.5 has never stated
these facts before the police, looking to the evidence of P.W.No.14.
Likewise also, looking to the age of the appellant, which was at the
relevant time 30 years and looking to the age of the deceased, which
was 15 years at the relevant time, there was no reason for them to go
together. One was doing a work of cobbler and, therefore, there are
all chances that he may have sustained injury while doing his work.
This aspect of the matter has not been appreciated by the Trial
Court. There is no convincing evidence about motive by this witness
and, therefore also, they are not trustworthy witnesses and the
prosecution has failed to prove the motive for the satisfaction of
this Court to commit murder of the deceased.
9. Looking
to the deposition of P.W.No.5 namely Somabhai Fulabhai, who is father
of the deceased, examined at Exh-17, there are omissions,
contradictions and improvements in his deposition, when it is read
with deposition of P.W.No.14 examined at Exh-34, who is P.S.I.,
Malpur Police Station. The alleged motive imputed by the prosecution
that deceased wanted not to make the payment of Rs.100/- to the
deceased as he could not do repairing of two umbrellas nor was he
returning umbrellas. This fact was never stated by this witness
before the police. Looking to the cross-examination also, he has
never stated that P.W.No.3 told him that he had seen his son in the
company of the appellant on 21st October,1994. Even if
some of the improved facts are presumption, as stated by P.W.No.5 in
first point of time before the Court, had never linked the appellant
with the offence. Looking to the deposition of P.W.No.5, there is
presumption on the part of this witness that the appellant must have
committed murder of his son, but, this is not sufficient for
conviction of the appellant. There must be cogent and convincing
reasons, which prove the offence committed by the appellant, beyond
reasonable doubt. On the contrary, looking to the deposition of this
witness, there is no evidence against the appellant. Likewise,
looking to the evidence of P.W.No.7, who is Malaji Nathaji Damor,
examined at Exh-19, panch-witness of panchnama of Inquest Panchnama;
looking to the deposition of P.W.No.8, Rameshwarlal Mistry, who is
examined at Exh-21, who is panch-witness of panchnama of scene of
offence, nothing is proved against the appellant.
10. It
is the case of the prosecution that the present appellant has shown
the place of scene of offence. As stated hereinabove, looking to the
deposition given by police witness, who is examined at Exh-34, the
place of scene of offence was known, much before the arrest of the
appellant. Even dead body was also found. Therefore, this
circumstance cannot connect the appellant with an offence of murder
of the deceased. The only evidence left out with the prosecution is
panchnama of clothes of the accused, which is at Exh-28, which is
proved by P.W.No.10 Nathabhai Bhemabhai, who is examined at Exh-27,
there were blood stains on the shirt of the accused. Looking to the
evidence on record, it appears that the accused had presented his own
shirt before the police officer. He was working as a cobbler. His
blood group is not examined by the police during the course of
investigation and only on shirt, because of few blood stained of
blood group ?SB?? is found, is not sufficient evidence to impose
punishment of life imprisonment. By this evidence only, the offence
cannot be said to have been proved beyond reasonable doubt. This
aspect of the matter has not been appreciated by the Trial Court.
Thus, looking to the evidence on record, Trial Court ought to have
come to the conclusion that deposition of P.W.No.3 read with
deposition of P.W.No.5 read with deposition given by P.W.No.14 at
Exh.34, there is material improvements in their depositions. These
sentences were never stated before the police in their statements,
which were recorded first in point of time, after the incident had
taken place. If these two witnesses i.e. P.W.Nos.3 and 5 are proved
to have improving their case, nothing remains against the present
appellant, except few blood stains found on the shirt of the
appellant. It appears that the appellant was doing cobbler work and
there are all chances that he might have sustained injuries. Blood
group of the appellant was never checked by the Investigating Agency.
Even otherwise also, this is not a sufficient evidence for connecting
the appellant with an offence. Prosecution ought to prove an offence
beyond reasonable doubt. If the case is based upon circumstantial
evidence, the chain of circumstances, must be proved against the
present appellant and circumstances must be sufficient as to connect
the appellant with the offence. In the facts of the present case,
P.W.No.3 is not a trustworthy witness.
11. As
a cumulative effect of the aforesaid facts, the judgement and order
of conviction and sentence passed by learned Additional Sessions
Judge, Sabarkantha, Himmatnagar, Camp at Modasa, vide order dated
14th February,1996 in Sessions Case No.11 of 1995 is
hereby quashed and set aside. The appellant is hereby acquitted from
all the charges levelled against him. The appellant was already
enlarged on bail vide order dated 3rd July,1996 at the
time of admission of the appeal. The amount of fine, if any, paid by
the appellant be refunded to the appellant, on his proper
identification. Bail bond of the appellant-accused is hereby
cancelled forthwith.
(C.K.BUCH,J)
(D.N.PATEL,J)
*dipti
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