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CR.A/108219/1985 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1082 of 1985
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
======================================
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
Versus
AHMADBHAI
ABUBHAI & ANOTHER
======================================
Appearance
:
Mr Maulik Nanavati, Additional
Public Prosecutor for the appellant
MR PR ABICHANDANI for the
Opponents
======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 15/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal has been preferred by the State of Gujarat challenging
the judgment and order dated 19.08.1985 passed by the Additional
Sessions Judge, Surat in Sessions Case No.14 of 1985 acquitting the
present respondents original accused of offences punishable under
Section 302, 364, 201 read with Section 34 and 114 of the Indian
Penal Code.
The
case of the prosecution is that deceased Nisar and the present
respondents were engaged in business of sale of ice. Earlier, they
were partners in the business, but then separated. Later on, for
business reasons they again formed a syndicate and their business
relations have ever since been cordial. Sometime in the month of
September 1983, Nisar had gone for Haj and returned in November 1983.
On 14th November 1983, i.e. the date of the incident,
Nisar came home in the afternoon for lunch and while leaving he
informed his wife, Fareeda, that he was going along with accused
persons to Navapur for collecting money from buyers for the period
while he was out of country. Nisar did not return home till late
at night and so his wife went to the house of the accused next
morning to enquire about Nisar. At that time, she was informed that
the collection programme had been cancelled and that the accused had
not gone to Navapur. Instead, Ahmed had gone to Vapi for some
work. As Nisar was not found, the complaint of his being missing
was lodged with the police on 16th November 1983. The
police suspected the present respondents to have killed Nisar and
therefore arrested them. After the investigation was completed,
the present respondents were charged for causing death of Nisar and
were put on trial.
The
trial Court after appreciating the evidence, acquitted the accused on
the ground that the prosecution has miserably failed to prove the
circumstances relied upon by it to establish the guilt of the accused
beyond reasonable doubt. This being a case of circumstantial
evidence, the trial Judge found that the prosecution has not
established a complete chain of circumstances, which, when
cumulatively viewed, unerringly point towards the guilt of the
accused.
We
have heard Mr Maulik Nanavati, learned Additional Public Prosecutor
for the State and Mr P.R.Abichandani for the respondent-accused.
Mr Adil Mehta, learned advocate appeared on behalf of the complainant
and he was also permitted to assist the learned Additional Public
Prosecutor. With the assistance of counsel for both the sides, we
have perused the judgment impugned before us and have gone through
the entire record of the case.
Undisputedly,
this is a case of circumstantial evidence and Mr Nanavati, learned
Prosecutor has submitted that the prosecution has successfully proved
the circumstances which point towards the guilt of the accused and
admit of no other inference. Mr Nanavati has submitted that the
first circumstance against the accused is that they were last seen
together with the deceased – Nisar. He has argued that three
witnesses have categorically stated that they saw the accused in the
company of the deceased in the evening of 14th November,
going in a blue coloured truck. The circumstance of last seen
together does not by itself and necessarily lead to the inference
that it was the accused who committed the crime. There may be
cases where, on account of close proximity of place and time between
the event of the accused having been last seen with the deceased and
the factum of death, a rational mind may be persuaded to reach an
irresistible conclusion that either the accused should explain how
and in what circumstances the victim suffered the death or should own
the liability for the homicide. In the present case, there is no
such proximity of time and place. The dead body had been recovered
about 3 days after the date on which the deceased was last seen in
the company of the accused. The distance between the two places is
about 20-30 kilometers. The event of the two accused persons
having departed with the deceased and thus last seen together does
not bear such close proximity with the death of the victim by
reference to time or place. Merely because the accused were last
seen with the deceased a few days before his death, they cannot be
held liable for the offence of having caused the death of the
deceased. Even otherwise, the evidence of Jubeda Begum, PW 19 and
Muzaffar Khan, PW 28, who last see the deceased in the company of
accused is not free from doubt. Though Jubeda Begum had identified
the accused in the Test Identification Parade, it is of no
consequence as the evidence shows that the pictures of accused were
published in the newspapers prior to the date on which parade was
held. The statement of Muzaffar Khan and other witness of last seen
was recorded almost four months after the incident.
The
other circumstance relied upon by the prosecution is the recovery of
the dead body at the instance of the accused. However, careful
examination of the evidence shows that villagers of Kovali village
had complained about a foul smell coming from top of the hill from
where the dead body was subsequently found. This fact together
with the evidence of panchas that the accused did not say anything to
them and simply led them to the top of the hill would not bring
Section 27 of the Evidence Act into play and therefore cannot be
termed as recovery admissible in law. Also, as observed by the
trial Judge, possibility of police having prior knowledge of the
existence of the dead body lying on top of the hill cannot be ruled
out.
We
may also notice that the reason given by the prosecution for the
deceased to accompany the accused persons was collection of money
from Navapar village. It has come on record that recovery had
already been made on 13th November and therefore when the
money had already been collected there was hardly any necessity for
the deceased to have along with the accused for effecting recovery.
Therefore, the motive as suggested by the prosecution has not been
proved.
The
circumstance of recovery of truck used in the commission of crime and
the scooter of the deceased is also suspect. There is no evidence
to show as to who brought the tempo to the garage and as to who drove
from the garage to the police station. Both the scooter and tempo
have been seized by the police without drawing a panchnama. Also,
both the vehicles were brought to the police station prior to lodging
of the FIR or the arrest of the accused. Further, it has come in
evidence that the truck was washed sometime in the month of February.
Yet, stains were found on the seat of tempo when they were sent for
forensic examination in March. It is also strange that bloodstains
would be found on the seat of the tempo despite the fact that the
tempo was kept in open at the police station and remained exposed to
natural vagaries. Therefore, this aspect of the prosecution case
is improbable and suspicious and therefore loses its significance.
Lastly, the recovery of bloodstained clothes worn by the accused at
the time of incident is also not free from doubt. The clothes are
said to be soaked in water in a bucket. The sequence of
circumstances shows that there could be a contamination, but, in any
case, such recovery in its isolation would not be sufficient to bring
home the guilt of the accused.
For
the foregoing reasons, we are of the considered opinion that the
findings given by the trial Court are cogent, correct and sufficient.
There is no infirmity or perversity in the reasoning of the trial
Court, which would call for interference at our hands.
Consequently, we are of the opinion that the acquittal deserves to be
upheld.
Appeal
is dismissed. Bail bonds stand cancelled.
(Bhagwati
Prasad, J.)
(S.R.Brahmbhatt,
J.)
*mohd
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