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CR.A/631/2004 13/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 631 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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 ?
=========================================================
ARJUNBHAI
RATASING VASAVA
Versus
STATE
OF GUJARAT
=========================================================
Appearance
:
THROUGH
JAIL - MR
JM BUDDHBHATTI for Appellant.
MR HH PARIKH, ADDL.PUBLIC PROSECUTOR
for the
State.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 05/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
Instant
appeal filed under Section 374(2) of the Code
of Criminal Procedure, 1973 [ Code for short] questions legality
of the judgment dated April 22, 2004, rendered by the learned
Additional Sessions Judge, FTC-2, Rajpipla, in Sessions Case No.
164/2003, by which the appellant is convicted for the offence
punishable under Section 302 of the Indian Penal Code [‘IP Code
for short] for causing murder of Kamleshbhai Vechanbhai Vasava and
sentenced him to suffer imprisonment for life and to pay fine of
Rs.1000/-, in default to undergo S.I for 30 days. The appellant is
also convicted for the offence punishable under Section 201 IP Code
for causing disappearance of the evidence and sentenced him to suffer
R.I for seven years and to pay fine of Rs. 500/-, in default to
undergo S.I for 15 days. However, the learned trial Judge acquitted
the appellant of the offence punishable under Section 135 of the
Bombay Police Act. Both the substantive sentences were ordered to run
concurrently.
2. The
prosecution case, in nutshell, is that the appellant-accused and the
complainant happen to be the close relatives i.e. nephew and uncle
respectively, and keeping grudge of the altercation which took place
about six months prior to the date of the incident regarding land,
the appellant, under the pretext of fishing, on 26.6.2003 at about
20.00 hours, took deceased Kamlesh with him in the field of Khansing
Naktiya Vasava situated in the sim of Navagam and voluntarily caused
hurt with the muddamal weapon Koita and after causing his
death, threw his dead body in the well owned by Khansing.
3. On
the basis of the F.I.R lodged by Vechanbhai Khahaliyabhai Vasava, the
father of deceased Kamlesh, offence was registered and investigation
was started. The Investigating Officer recorded statements of those
persons who were found to be conversant with the facts of the case.
Incriminating articles, seized during the course of investigation,
were sent to F.S.L for analysis. On completion of investigation, the
appellant was charge-sheeted in the Court of learned J.M.F.C.
Dediyapada for commission of offences punishable under Sections 302 &
201 of IP Code.
4. As
the offence punishable under Section 302 I.P.C is exclusively triable
by a Court of Sessions, the case was committed for trial to Sessions
Court, Rajpipala, where it was numbered as Sessions Case No.
164/2003. The learned Additional Sessions Judge, Rajpipala, to whom
the case was made over for trial, framed charge against the appellant
at Exh.4. The charge was read over and explained to the appellant,
who pleaded not guilty to the same and claimed to be tried. The
prosecution, therefore, adduced oral and documentary evidence to
prove its case against the appellant. The prosecution examined 17
witnesses and produced required documentary evidence.
5. After
recording of the evidence of the prosecution witnesses was over, the
learned Judge of the trial Court explained to the appellant the
circumstances appearing against him in the evidence of the
prosecution witnesses and recorded his further statement as required
by Section 313 of the Code. In his further statement, the appellant
denied generally all the incriminating circumstances put to him by
the trial Court and stated that he was falsely implicated in this
case. After considering the evidence on record and submissions made
on behalf of both the sides, the learned trial Judge came to the
conclusion that the prosecution has successfully proved its case
beyond any reasonable doubt against the appellant and recorded his
conviction for the offences punishable under Section 302 & 201 of
IP Code and awarded sentence referred to earlier, giving rise to
instant appeal.
6. Heard
learned advocate Mr. Budhdhbhatti for the appellant and learned
A.P.P. Mr.Parikh for the State, at length and in great detail.
7. Learned
advocate Mr.Budhdhbhatti has submitted that there is no eye witness
to the incident and the entire case rests upon the circumstantial
evidence, but, that evidence is also not cogent and reliable. He
submitted that the evidence of witness Somiben Vechanbhai (PW.11)
examined at Exh.31 could not have been relied upon by the trial Court
and the medical evidence also does not indicate that the injuries
found on the dead body were possible by muddmal weapon Koita.
He further submitted that the medical evidence also does not
positively indicate that the injuries were caused by the muddamal
weapon Koita and thus, the learned trial Judge committed an
error in relying upon the prosecution evidence and therefore, the
appeal should be allowed.
8. The
learned A.P.P. Mr.Parikh has opposed this appeal. He submitted that
the evidence of the witness, who last saw the deceased in the company
of the appellant is reliable and trustworthy. Mr.Parikh pleaded that
the medical evidence also indicates that the injuries found on the
dead body of the deceased were possible by a sharp cutting weapon and
the muddamal weapon recovered at the instance of the appellant was a
sharp cutting weapon. The learned A.P.P asserted that cogent and
convincing reasons have been assigned by the learned Judge of the
trial Court for convicting the appellant for the offences punishable
under Sections 302 & 201 of IP Code, and as the learned counsel
for the appellant has failed to dislodge those weighty reasons, the
appeal should be dismissed.
9.
This Court has also undertaken a complete and comprehensive
appreciation of all vital features of the case and the entire
evidence on record with reference to broad and reasonable
probabilities of the case.
10. It
is relevant to notice that the prosecution has not claimed that the
murder of the deceased was witnessed by any one and no direct
evidence regarding murder of the deceased is tendered before the
Court. Admittedly, the whole case against the appellant rests on
circumstantial evidence. Therefore, before dealing with the
circumstantial evidence on record, it would be worthwhile to notice
the law on the point.
11. The
law relating to circumstantial evidence is well settled. In dealing
with the circumstantial evidence, there is always a danger that
conjecture or suspicion lingering on mind may take place of proof.
Suspicion, howsoever strong, cannot be allowed to take place of proof
and, therefore, the Court has to be watchful and ensure that
conjectures and suspicions do not take place of legal proof. However,
it is no derogation of evidence to say that it is circumstantial.
Human agency may be faulty in expressing picturisation of actual
incident, but, the circumstances can not fail. Therefore, many a
times it is aptly said that men may tell lies, but circumstances
do not . In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn
should, in the first instance, be fully established and all the facts
so established, should be consistent only with the hypothesis of the
guilt of the accused. The circumstances should be of a conclusive
nature and they should be such as to exclude every hypothesis except
the one sought to be proved. There must be a chain of evidence so
complete as not to leave any reasonable ground for conclusion
consistent with the innocence of the accused and it must be such as
to show that within all human probability, the act must have been
done by the accused. In deciding the sufficiency of the
circumstantial evidence for the purpose of conviction, court has to
consider the total cumulative effect of all the proved facts, each
one of which reinforces the conclusion of guilt and if the combined
effect of all these facts taken together is conclusive in
establishing the guilt of the accused, the conviction would be
justified even though it may be that one or more of these facts by
itself or themselves is, or are not decisive. Where a case rests
squarely on circumstantial evidence, the various sets of
circumstantial evidence should be taken into consideration and their
total effect should be such that they must lead unerringly to the
guilt of the accused. Each fact must be proved individually and only
thereafter the sum total of the proved facts has to be taken into
consideration, but this does not mean that before the prosecution can
succeed in a case resting upon circumstantial evidence alone, it must
prove each and every hypothesis suggested by the accused, howsoever,
extravagant and fanciful it might be. In Sharad v. State of
Maharashtra, AIR 1984 SC 1622, after referring to earlier case
law, the Supreme court has summarized the conditions to be fulfilled
in a case based on circumstantial evidence as under : (i) the
circumstances from which the conclusion of guilt is to be drawn
should be fully established. The circumstances concerned `must’ or
`should’ and not `may’ be established, (ii) the fact so established
should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty; (iii) the circumstances
should be of conclusive nature; (iv) they should exclude every
possible hypothesis except the one to be proved; (v) there must be a
chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have been done
by the accused; and (vi) where the various links in a chain are in
themselves complete, then a false plea or a false defence may be
called into aid only to lend assurance to the Court.
12. If
the aforesaid various conditions are fulfilled, then only a Court
can use a false explanation or a false defence as an additional link
and not otherwise. As observed earlier, if the circumstances proved
are consistent with the innocence of the accused, then the accused is
entitled to the benefit of doubt. However, in applying this
principle, distinction must be made between facts called primary or
basic on the one hand and inference of facts to be drawn from them on
the other. In regard to the proof of basic or primary facts, the
Court has to judge the evidence and decide whether that evidence
proves a particular fact or not and if that fact is proved, the
question arises whether that fact leads to the inference of guilt of
the accused person or not. In dealing with this aspect of the
problem, the doctrine of benefit of doubt applies. Although there
should be no missing links in the case, yet it is not essential that
every one of the links must appear on the surface of the evidence
adduced and some of these links may have to be inferred from the
proved facts. In drawing these inferences or presumptions, the Court
must have regard to the common course of natural events, and to human
conduct and their relations to the facts of the particular case.
13. Having
noticed relevant principles governing a case based on circumstantial
evidence, this Court proposes to consider the question whether the
case against the appellant is proved.
14. The
mother of the deceased i.e. Somiben Vechanbhai (PW 11) is examined by
the prosecution at Exh.31. She had last seen the deceased in the
company of the appellant. According to her evidence, on the night of
the incident, the appellant had come to her house to call her son
Kamlesh to go with him for fishing and both of them left her house
and thenceforth deceased Kamlesh did not return. Therefore, on the
next day, FIR was lodged by the father of the deceased. The version
of the witness about last seen together has not been challenged in
the cross-examination by the appellant and thereby that version has
gone unchallenged. A re-evaluation of testimony of mother of the
deceased makes it very clear that the appellant was in the company
of the deceased when they both left her house for fishing on the day
of the incident and thereafter the deceased did not return. The
appellant has in his further statement not explained this
incriminating circumstance.
15. The
testimony of PW.8 Vithalbhai Lallubhai Tadvi, examined at Exh.26,
also indicates that the deceased was last seen in the company of the
appellant. It is true that this witness has been declared hostile and
was cross-examined by the learned A.P.P as well as the learned
advocate for the accused. On reappreciation of the evidence, it
appears that the witness has admitted having stated before the police
in his statement that he saw the appellant-convict in the company of
the deceased. In view of this, even though the witness has been
declared hostile, his deposition can be relied upon to connect the
appellant with the offence.
16. The
evidence of Dr.Champakbhai Madhavbhai Vasava, PW.13, examined at
Exh.33, who performed post-mortem on the dead body, indicates that
the deceased had sustained about 9 external injuries and the internal
injuries were corresponding to the external injuries. It also
indicates that the injuries were caused on the vital part of the body
and the cause of death was injury to vital organ brain and shock due
to severe haemorrhage after injuries to skull and neck. The evidence
of this witness also indicates that the injuries were possible by a
sharp cutting weapon like Koita. It is true that the witness
has used word Padiyu in place of Koita .
But, there is no dispute that the weapon Koita was also known
as Padiyu. The post-mortem
report produced at Exh.35 indicates the injuries and the cause of
death. Reappraisal of testimony of Dr.Vasava makes it very clear that
the deceased died because of shock resulting from injury on vital
organ (brain). It is also proved beyond pale of doubt that the
injuries noticed by him were ante mortem. The injuries found on the
dead body of the deceased were neither natural nor accidental nor
suicidal. Under the circumstances, the fact that the deceased died a
homicidal death stands firmly established by the prosecution.
17. A
conjoint reading of the medical evidence and the evidence of PW.11
and PW.8 reveals that the deceased
was last seen in the company of the appellant and thereafter his dead
body was found in the well. The discussion made above makes it very
clear that each of the circumstances sought to be proved is clearly
established by the prosecution. There is a chain of evidence so
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the appellant. The cumulative effect
of proved circumstances is such that
they are only consistent with the guilt of the appellant. The
appellant-convict has not explained the incriminating circumstances
appearing against him in the evidence and the only explanation
offered is that he is innocent and at the time of the incident he was
attending ‘bhajans’ at
the place of Amarsing Sursing. In absence of any plausible
explanation and in view of the consistent evidence of the prosecution
witnesses, in our considered opinion, the learned Judge was
justified in coming to the conclusion that the appellant alone and
alone, and none-else, was responsible for causing death of deceased
Kamlesh and rightly convicted the appellant for the offences with
which he was charged.
18. For
the foregoing reasons, the appeal fails and stands dismissed.
Muddamal to be disposed of in terms of the directions given by the
learned Judge in the impugned judgment.
[A.L.Dave,J.]
[Bankim
N.Mehta,J.]
(patel)+
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