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CR.A/72119/1999 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No.721 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
AND
HONOURABLE
MR.JUSTICE BANKIM N. MEHTA
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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?
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BHEMJIBHAI
MOTIBHAI PATEL (CHAUDHARY) - Appellant
Versus
STATE
OF GUJARAT - Respondent
==========================================================
Appearance :
MR
JAIPRAKASH UMOT with MR SV RAJU, Sr. Advocate for
Appellant.
MR MAULIK NANAVATI, APP for
Respondent.
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CORAM
:
HONOURABLE
MR. JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR. JUSTICE BANKIM N. MEHTA
Date
: 16/10/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM N. MEHTA)
1. The present
appeal calls into question the judgment and order dated 17.06.1999
passed by the learned Additional Sessions Judge, Banaskantha-Palanpur
in Sessions Case No.23 of 1999 convicting the appellant for offence
punishable under Section 302 of the Indian Penal Code [?SIPC?? for
short] and sentencing him to suffer imprisonment for life and pay
fine of Rs.500=00, in default to suffer S.I. for one month.
2. The case of the
prosecution as unfolded before the trial Court is as follows:
One Motibhai had
two sons namely, Premjibhai (deceased) and Bhemjibhai (accused). Said
Motibhai passed away about four years prior to the incident. Before
his death, he had divided his 6 vighas of lands in equal parts
and had given about 3 vighas each to both his sons. Deceased
Premjibhai was a believer of Radhaswami Sect and would often
visit Beas (Punjab). Therefore, instead of cultivating his
land personally, he would give out his land for cultivation to other
persons of the village in return of a lump sum amount. This had
remained a bone of contention between the two brothers; Bhemjibhai
wanting to have his brother gave the land to him for cultivation. On
his insistence, deceased Premjibhai gave his share of the land to his
brother Bhemjibhai for cultivation against a lump sum amount of
Rs.1500=00 in year 1998. It is the case of the prosecution that out
of this amount, Rs.300=00 had remained outstanding and for recovery
of the said amount, Premjibhai often used to visit Bhemjibhai and ask
for the money. On 22.03.1998 at about 8.00 O’ clock in the evening,
Premjibhai had gone to the house of Bhemjibhai for getting back his
outstanding amount. At that time, Vaghjibhai Virsangbhai-complainant
(P.W.-7), Sardarbhai Nathuhai (P.W.-8), Bhagwanbhai Dalsangbhai
(P.W.-9) and Manjibhai Virsangbhai (P.W.-10) were also present. It is
further the case of the prosecution that a quarrel took place between
deceased Premjibhai and appellant Bhemjibhai over repayment of money
and Bhemjibhai gave a threat to Premjibhai to kill him at night.
Thereafter, deceased Premjibhai went to his house. Next morning, when
Vaghjibhai Virsangbhai returned from his farm, he was informed about
the death of his cousin Premjibhai. Therefore, Vaghjibhai lodged a
complaint with the Police. After the investigation, charge-sheet came
to be filed against accused Bhemjibhai for the offence under Section
302 IPC. As the offence was exclusively triable by Court of Sessions,
it was committed to Sessions Court where it was numbered as Sessions
Case No.23 of 1999. The learned Additional Sessions Judge,
Banaskantha at Palanpur, framed charge at Exhibit 4 for the aforesaid
offence. The charge was read over and explained to the accused, who
pleaded not guilty to the charge and claimed to be tried. Therefore,
the prosecution led the evidence. After recording of evidence was
over, the learned trial Judge explained to the accused incriminating
circumstances appearing against him in the evidence of prosecution
and recorded his further statement under Section 313 of the Code of
Criminal Procedure, 1973. In his further statement, the accused
denied the case of the prosecution.
3. On appreciation
of the evidence, the trial Court relying upon the evidence of
complainant Vaghjibhai Virsangbhai (P.W.-7), Investigating
Officer? Ramjibhai Laljibhai Patel (P.W.-12) and the evidence of
recovery of weapon of offence at the instance of the accused, found
the charge against the accused as proved and convicted him for the
offence punishable under Section 302 IPC and imposed the sentence as
stated above.
Being aggrieved by
the said decision, the appellant-convict has preferred this appeal.
4. We have heard
Mr.Jaiprakash Umot, learned advocate appearing for the appellant and
Mr.Maulik Nanavati, learned Additional Public Prosecutor for the
respondent-State and with their assistance, we have perused the
record and proceedings of the trial Court.
5. Mr.Umot, learned
advocate for the appellant, has submitted that the trial Court has
erred in convicting the appellant by relying upon the evidence of the
Investigating Officer and the statements of witnesses recorded by the
Police during the course of investigation, particularly when the said
witnesses have denied having given such statements to the Police. He
has submitted that the evidence of complainant – Vaghjibhai
Virsangbhai (P.W.-7), on whose evidence great reliance has been
placed by the learned trial Judge, does not conclusively indicate or
suggest the guilt of the accused. As regards the evidence of
discovery of the weapon of offence, the learned advocate for the
appellant has submitted that the same has not been proved and,
therefore, no reliance ought to have been placed on the same. On the
other hand, the learned Additional Public Prosecutor for the State
has supported the judgment of the trial Court and submitted that the
findings of the trial Court are correct and have been arrived at
after proper appreciation of the evidence.
6. It appears from
the evidence that there was no eyewitness to the incident and the
prosecution is launched on the basis of circumstantial evidence. On
scrutiny of the evidence, we find that the complainant (P.W.-7)
though has narrated in the complaint lodged on 23.03.1998 that there
was a quarrel between Premjibhai and Bhemjibhai about non-payment of
Rs.300=00 on previous day, i.e. on 22.03.1998 and appellant
Bhemjibhai had threatened to kill Premjibhai that night, he has
remained silent in his evidence before the Court about any quarrel
having taken place between the appellant and the deceased over issue
of non-payment of Rs.300=00 or that the appellant having given any
threat to kill Premjibhai. On the contrary, he has deposed that on
the deceased asking the appellant for money, the appellant told him
that he would pay up the money next morning. This is an important
contradiction, particularly when the prosecution story rests
primarily on the events of the previous evening wherein the appellant
is alleged to have given a threat to the deceased to kill him in the
night. We find that to this extent, the complainant has not stuck to
his original statement given before the Police and in absence of him
having been declared hostile, his evidence must be held binding on
the prosecution. The other witnesses, who according to the
prosecution, were present at the previous evening when alleged
altercation took place between the deceased and the appellant, have
not supported the case of the prosecution and have been declared
hostile. Even in their cross-examination, nothing could be elicited
by the learned Prosecutor, which would lend credence or corroborate
the evidence of the complainant (P.W.-7) or further the case of the
prosecution as regards motive to kill the deceased except to the fact
that Premjibhai was giving his land for cultivation to others and for
that particular year Bhemjibhai was cultivating the land of
Premjibhai. The evidence of all these witnesses does not prove even
remotely that a quarrel had taken place between the deceased and the
appellant in the evening on 22.03.1998 and that the appellant on
getting infuriated had threatened to kill the deceased and in
furtherance thereof committed the offence.
7. The other
evidence relied upon by the prosecution is the recovery of weapon of
offence at the instance of the accused. The panch witnesses
have not supported the prosecution case and have been declared
hostile. The panch witnesses, Hareshbhai Babubhai Chaudhary
(P.W.-5, Exhibit 23) and Kanjibhai Haribhai (P.W.-6, Exhibit 27) have
only identified their signatures on panchnama Exhibit 26. Even
otherwise also alleged recovery is from a public place and, hence, it
cannot form the basis of conviction.
8. On perusal of
the record, we find that there is no other evidence led by the
prosecution to prove the guilt of the accused. This being a case of
circumstantial evidence, it is necessary for the prosecution to
establish conclusively the chain of events and circumstances, which
point unerringly the guilt of the accused. As observed above, we find
that the prosecution has not been able to prove the circumstances
establishing conclusively the guilt of the accused.
9. For the
foregoing reasons, we are of the considered opinion that the
prosecution has failed to prove its case against the appellant and
the learned trial Judge committed error in relying upon such evidence
in convicting the appellant. Therefore, the appellant is required to
be acquitted.
In the result, the
appeal is allowed. The conviction of the appellant recorded under
Section 302 IPC and the sentence imposed by the learned Additional
Sessions Judge, Banaskantha-Palanpur, vide judgment and order
dated 17.06.1999 in Sessions Case No.23 of 1999 is hereby quashed and
set aside. The appellant is ordered to be set at liberty forthwith if
not required in any other case. Muddamal be disposed of.
[Bhagwati
Prasad, J.]
[Bankim N.
Mehta, J.]
Rajendra
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