{"id":200112,"date":"2008-11-11T00:00:00","date_gmt":"2008-11-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naranbhai-vs-unknown-on-11-november-2008"},"modified":"2018-09-26T08:19:43","modified_gmt":"2018-09-26T02:49:43","slug":"naranbhai-vs-unknown-on-11-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naranbhai-vs-unknown-on-11-november-2008","title":{"rendered":"Naranbhai vs Unknown on 11 November, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Naranbhai vs Unknown on 11 November, 2008<\/div>\n
Author: C.K.Buch,&Nbsp;Honourable Mr.Justice Patel,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/214\/1996\t 2\/ 10\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 214 of 1996\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE C.K.BUCH  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE D.N.PATEL\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nNARANBHAI\nHIRABHAI MOCHI - Appellant\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent\n \n\n=========================================================\n \nAppearance : \nMRS\nSHILPA R SHAH for the Appellant. \nMS\nD.S.PANDIT, APP for the\nOpponent. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE C.K.BUCH\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.N.PATEL\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 11\/11\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE D.N.PATEL)<\/p>\n
1.\t\tThis
\nappeal has been preferred against the judgement and order of
\nconviction and sentence passed by learned Additional Sessions Judge,
\nSabarkantha, Himmatnagar, Camp at Modasa vide order dated 14th
\nFebruary,1996 in Sessions Case No.11 of 1995, whereby the present
\nappellant has been convicted and sentenced to undergo life
\nimprisonment for the offence punishable under Section 302 of the
\nIndian Penal Code and to pay a fine of Rs.500\/-, in default, to
\nundergo further simple imprisonment of one month. The appellant has
\nalso been convicted for an offence punishable under Section 404 of
\nthe Indian Penal Code, but, no separate sentence has been awarded for
\nthis offence. Against this order, the present appeal has been
\npreferred.\n<\/p>\n
2.\t\tBrief
\nfacts of the prosecution case, are as under:\n<\/p>\n
\t\tIt
\nis the case of the prosecution that original complainant Mr.B.N.Barot\n<\/p>\n
– P.W.No.14, P.S.I., Malpur Police Station, District: Sabarkantha,
\nreceived an information from Ambaliya Outpost from P.W.No.2 Somaji
\nKohayaji, Head Constable that a deadbody of one young boy was lying
\nnear temple of Gebimata. Thereafter, P.S.I., Malpur Police Station
\nhad gone to the place, Inquest Panchnama and other panchnama were
\ndrawn. FIR was filed on 22nd October,1994. Dead body was
\nsent for postmortem. Postmortem was carried out by P.W.No.1 on 23rd
\nOctober,1994 at about 7:30 to 8:30 a.m..  Doctor opined that prior to
\n36 to 40 hours before postmortem, murder of the deceased must have
\nbeen caused. Several injuries were found upon the dead body of the
\ndeceased. As per prosecution, these injuries were caused to the
\ndeceased by stones. Father of the deceased, who is P.W.No.5 was in
\nsearch of his son, who sent the deceased to sell food grain to
\nP.W.No.4, who purchased food grain and paid Rs.177\/- to the deceased.\n<\/p>\n
3.\t\tIt
\nis the  case of the prosecution that Suraji Bapuji had seen the
\ndeceased and the appellant together, at evening hours on 21st
\nOctober,1994. The case of the prosecution is based upon circumstance
\nlast seen together. Thereafter, dead body of the deceased was found.
\nThere is no eye-witness to the incident. The whole case is based upon
\ncircumstantial evidence. Investigation was carried out and
\ncharge-sheet was filed. Sessions Case was registered against the
\nappellant. The appellant has been convicted on the basis of
\ncircumstantial evidence and sentence of life imprisonment has been
\nawarded by the Trial Court. Against this order, the present appeal
\nhas been preferred by the appellant.\n<\/p>\n
4.\t\tWe
\nhave heard learned counsel for the appellant, who has submitted that
\nprosecution has failed to prove the case against the appellant,
\nbeyond reasonable doubt. There are lot of omissions and
\ncontradictions in the deposition of the witnesses, especially in
\ndepositions of P.W.Nos.3 and 5. These omissions and contradictions
\nhave been proved with the help of deposition of P.W.No.14, who is
\nP.S.I., Malpur Police Station. It is further submitted that there is
\nno eye-witness to the incident and whole chain of circumstances has
\nnot been proved against the present appellant, so as to come to the
\nconclusion that the appellant has committed the murder of the
\ndeceased. In fact, as per learned counsel for the appellant, there is
\nno evidence at all, which connects the appellant with the murder of
\nthe deceased. The appellant is working as a cobbler. If the case of
\nthe prosecution is taken on its highest pitch, there were few blood
\nstained on the shirt of the accused. Otherwise, there is no evidence
\nat all against the appellant-accused. This aspect of the matter has
\nnot been appreciated by the Trial Court. The whole deposition is not
\nuseful to the prosecution as most of the part of the deposition
\nstated in the examination-in-chief was never stated before the
\npolice, which is proved by deposition of P.W.No.14. There are
\nmaterial omissions, contradictions and improvements and, therefore,
\nthese witnesses i.e. P.W.Nos.3 and 5 are not trustworthy witnesses.
\nThis aspect of the matter has not been appreciated by the Trial Court
\nand, therefore, the impugned judgement and order of conviction and
\nsentence passed by the Trial Court, deserves to be quashed and set
\naside.\n<\/p>\n
5.\t\tLearned
\ncounsel for the appellant submitted that admission of the accused in
\npresence of panchas during custody of police, as stated by the
\npanch-witnesses cannot be a basis for conviction. This aspect of the
\nmatter has not been appreciated by the Trial Court and, therefore,
\norder of conviction deserves to be quashed and set aside.\n<\/p>\n
6.\t\tWe
\nhave heard learned Additional Public Prosecutor on behalf of the
\nState, who has submitted that there is enough evidence against the
\npresent appellant. P.W. No.3 has clearly stated in his deposition at
\nExh-14 that he has seen the deceased in the company of the present
\nappellant on 21st October,1994 at evening hours. Looking
\nto the deposition of P.W.No.1 ?  Dr.Nayankumar Dineshkumar
\nSwaminarayan at Exh-8,  murder of the deceased had taken place prior
\nto 36 to 40 hours before the postmortem. Postmortem was performed on
\n23rd October,1994 at about 7:30 a.m. to 8:30 a.m.. Thus,
\nit is submitted by learned Additional Public Prosecutor that most of
\nthe circumstances prove beyond reasonable doubt that last seen
\ntogether. It is further submitted that looking to the deposition
\ngiven by P.W.No.4 at Exh-15, who has purchased food grain and paid
\nRs.177\/- to the deceased. Wallet of the deceased was also found  from
\nthe place of offence. Looking to the deposition of P.W.No.5 at
\nExh-17, who is father of the deceased, it is stated by the father
\nthat he was in search of his son. He has stated the fact about
\nselling of food grain, which has supported the evidence of P.W.No.4.
\nIt is submitted by learned Additional Public Prosecutor that blood
\nstains on the clothes of the accused was recovered, which is having
\nsame blood group of the deceased, as per Serologist Report. It is
\nsubmitted by Learned Additional Public Prosecutor that no error has
\nbeen committed by the Trial Court by convicting the
\nappellant-accused, as the circumstance are proved beyond reasonable
\ndoubt against the present appellant and, therefore, impugned
\njudgement and order of conviction and sentence passed by the Trial
\nCourt may not be interferred with by this Court.\n<\/p>\n
7.\t\tHaving
\nheard the learned counsel for both the sides and looking to the
\nevidence on record, it appears that the present case is full of
\nomissions, contradictions and improvements. Material evidence is of
\nP.W.Nos.3 and 5, which are examined at Exh-14 and 17. The offence has
\ntaken place at any time prior to 36 to 40 hours before the
\npostmortem, which was performed on 23rd October,1994 at
\nabout 7:30 a.m. to 8:30 a.m. Looking to the deposition of P.W.No.3,
\nit appears that he is claiming last seen together the deceased in the
\ncompany of the appellant on 21st October,1994 at evening
\nhours, who is relative of the deceased. Looking to his status in the
\nsociety, he is responsible person. He has not stated this fact of
\nlast seen together in his deposition. He stated that the appellant
\nwas walking ahead and behind him, the deceased was walking. This is
\nan improvement, which is material one, looking to para-6 of the
\ndeposition of P.W.No.14 at Exh-34, who is P.S.I., Malpur Police
\nStation. Thus, there is improvement by this P.W.No.3 in his
\ndeposition before the Court. Likewise, this witness has never stated
\nthis fact before the father of the deceased, who is P.W.No.5 namely
\nSomabhai Fulabhai. When father had gone in search of his son to
\nP.W.No.3, this fact was never stated by P.W.No.3 before P.W.No.5.
\nP.W.No.5 has also not stated this fact when he met Suraji Bapuji.
\nP.W.No.3 has stated to Somabhai that he had seen his son with the
\nappellant on 21st October,1994 at evening hours. Looking
\nto the cross-examination of this P.W.No.3, they are also suggestive
\nabout desire that P.W.No.3 wanted to purchase the land of the
\nappellant, but, the appellant had sold the land to some one else. As
\na cumulative effect of all the aforesaid facts and looking to the
\ndeposition of P.W.No.3 read with deposition of P.W.No.14 at Exh-34,
\nP.W.No.3 is not a trustworthy witness. This aspect of the matter has
\nnot been appreciated by the Trial Court.\n<\/p>\n
8.\t\tWhen
\nprosecution case is based upon circumstantial evidence, motive to
\ncommit murder ought to be established by the prosecution. Looking to
\nthe facts of the present case and evidence on record, prosecution has
\nfailed to prove the motive against the present appellant. A lumpsum,
\ngeneral and vague allegation against the present appellant, without
\nevidence, is not sufficient to convict the appellant. It is  the
\nprosecution case that initially two umbrellas were given to the
\nappellant for repairing and the appellant had not repaired these two
\numbrellas and, therefore, P.W.No.5 sent his son to get umbrellas or
\nmoney back from the appellant. No umbrella is recovered during
\ninvestigation.  Looking to the evidence by P.W.Nos.3 and 5 and as
\nstated hereinabove, the improvement that P.W.No.5 has never stated
\nthese facts before the police, looking to the evidence of P.W.No.14.
\nLikewise also, looking to the age of the appellant, which was at the
\nrelevant time 30 years and looking to the age of the deceased, which
\nwas 15 years at the relevant time, there was no reason for them to go
\ntogether. One was doing a work of cobbler  and, therefore, there are
\nall chances that he may have sustained injury while doing his work.
\nThis aspect of the matter has not been appreciated by the Trial
\nCourt. There is no  convincing evidence about motive by this witness
\nand, therefore also, they are not trustworthy witnesses and the
\nprosecution has failed to prove the motive for the satisfaction of
\nthis Court to commit murder of the deceased.\n<\/p>\n
9.\t\tLooking
\nto the deposition of P.W.No.5 namely Somabhai Fulabhai, who is father
\nof the deceased, examined at Exh-17, there are omissions,
\ncontradictions and improvements in his deposition, when it is read
\nwith deposition of P.W.No.14 examined at Exh-34, who is P.S.I.,
\nMalpur Police Station. The alleged motive imputed by the prosecution
\nthat deceased wanted not to make the payment of Rs.100\/- to the
\ndeceased as he could not do repairing of two umbrellas nor was he
\nreturning umbrellas. This fact was never stated by this witness
\nbefore the police. Looking to the cross-examination also, he has
\nnever stated that P.W.No.3 told him that he had seen his son in the
\ncompany of the appellant on 21st October,1994. Even if
\nsome of the improved facts are presumption, as stated by P.W.No.5 in
\nfirst point of time before the Court, had never linked the appellant
\nwith the offence. Looking to the deposition of P.W.No.5, there is
\npresumption on the part of this witness that the appellant must have
\ncommitted murder of his son, but, this is not sufficient for
\nconviction of the appellant. There must be cogent and convincing
\nreasons, which prove the offence committed by the appellant, beyond
\nreasonable doubt. On the contrary, looking to the deposition of this
\nwitness, there is no evidence against the appellant. Likewise,
\nlooking to the evidence of P.W.No.7, who is Malaji Nathaji Damor,
\nexamined at Exh-19, panch-witness of panchnama of Inquest Panchnama;
\nlooking to the deposition of P.W.No.8, Rameshwarlal Mistry, who is
\nexamined at Exh-21, who is panch-witness of panchnama of scene of
\noffence, nothing is proved against the appellant.\n<\/p>\n
10.\t\tIt
\nis the case of the prosecution that the present appellant has shown
\nthe place of scene of offence. As stated hereinabove, looking to the
\ndeposition given by police witness, who is examined at Exh-34, the
\nplace of scene of offence was known, much before the arrest of the
\nappellant. Even dead body was also found. Therefore, this
\ncircumstance cannot connect the appellant with an offence of murder
\nof the deceased. The only evidence left out with the prosecution is
\npanchnama of clothes of the accused, which is at Exh-28, which is
\nproved by P.W.No.10 Nathabhai Bhemabhai, who is examined at Exh-27,
\nthere were blood stains on the shirt of the accused. Looking to the
\nevidence on record, it appears that the accused had presented his own
\nshirt before the police officer. He was working as a cobbler. His
\nblood group is not examined by the police during the course of
\ninvestigation and only on shirt, because of few blood stained of
\nblood group ?SB?? is found, is not sufficient evidence to impose
\npunishment of life imprisonment. By this evidence only, the offence
\ncannot be said to have been proved beyond reasonable doubt. This
\naspect of the matter has not been appreciated by the Trial Court.
\nThus, looking to the evidence on record, Trial Court ought to have
\ncome to the conclusion that deposition of P.W.No.3 read with
\ndeposition of P.W.No.5 read with deposition given by P.W.No.14 at
\nExh.34, there is material improvements in their depositions. These
\nsentences were never stated before the police in their statements,
\nwhich were recorded first in point of time, after the incident had
\ntaken place. If these two witnesses i.e. P.W.Nos.3 and 5 are proved
\nto have improving their case, nothing remains against the present
\nappellant, except few blood stains found on the shirt of the
\nappellant. It appears that the appellant was doing  cobbler work and
\nthere are all chances that he might have sustained injuries. Blood
\ngroup of the appellant was never checked by the Investigating Agency.
\nEven otherwise also, this is not a sufficient evidence for connecting
\nthe appellant with an offence. Prosecution ought to prove an offence
\nbeyond reasonable doubt. If the case is based upon circumstantial
\nevidence, the chain of circumstances, must be proved against the
\npresent appellant and circumstances must be sufficient as to connect
\nthe appellant with the offence. In the facts of the present case,
\nP.W.No.3 is not a trustworthy witness.\n<\/p>\n
11.\t\tAs
\na cumulative effect of the aforesaid facts, the judgement and order
\nof conviction and sentence  passed by learned Additional Sessions
\nJudge, Sabarkantha, Himmatnagar, Camp at Modasa, vide order dated
\n14th February,1996 in Sessions Case No.11 of 1995 is
\nhereby quashed and set aside. The appellant is hereby acquitted from
\nall the charges levelled against him. The appellant was already
\nenlarged on bail vide order dated 3rd July,1996 at the
\ntime of admission of the appeal. The amount of fine, if any, paid by
\nthe appellant be refunded to the appellant, on his proper
\nidentification. Bail bond of the appellant-accused is hereby
\ncancelled forthwith.\n<\/p>\n
\t\t\t\t\t\t\t\t(C.K.BUCH,J)<\/p>\n
\t\t\t\t\t\t\t\t(D.N.PATEL,J)<\/p>\n
*dipti<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Naranbhai vs Unknown on 11 November, 2008 Author: C.K.Buch,&Nbsp;Honourable Mr.Justice Patel,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-200112","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNaranbhai vs Unknown on 11 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/naranbhai-vs-unknown-on-11-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Naranbhai vs Unknown on 11 November, 2008 - 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