{"id":23192,"date":"2010-03-05T00:00:00","date_gmt":"2010-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-unknown-on-5-march-2010"},"modified":"2017-10-11T06:48:13","modified_gmt":"2017-10-11T01:18:13","slug":"appearance-vs-unknown-on-5-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-unknown-on-5-march-2010","title":{"rendered":"Appearance vs Unknown on 5 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Appearance vs Unknown on 5 March, 2010<\/div>\n
Author: A.L.Dave,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&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\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/631\/2004\t 13\/ 15\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. 631 of 2004\n \n\n \n\n\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.L.DAVE\n \n\n  \nHONOURABLE\nMR.JUSTICE BANKIM.N.MEHTA\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\nARJUNBHAI\nRATASING VASAVA \n\n \n\nVersus\n \n\nSTATE\nOF GUJARAT \n\n \n\n=========================================================\n \nAppearance\n: \nTHROUGH\nJAIL - MR\nJM BUDDHBHATTI for Appellant. \nMR HH PARIKH, ADDL.PUBLIC PROSECUTOR\nfor the\nState. \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 A.L.DAVE\n\t\t\n\t\n\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 \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE BANKIM.N.MEHTA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 05\/03\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)<\/p>\n
\tInstant
\nappeal filed under Section 374(2) of the Code
\nof Criminal Procedure, 1973 [ Code  for short] questions legality
\nof the judgment dated April 22, 2004, rendered by the learned
\nAdditional Sessions Judge, FTC-2, Rajpipla, in Sessions Case No.
\n164\/2003, by which the appellant is convicted for the offence
\npunishable under Section 302 of the Indian Penal Code [‘IP Code
\nfor short] for causing murder of Kamleshbhai Vechanbhai Vasava and
\nsentenced him to suffer imprisonment for life and to pay fine of
\nRs.1000\/-, in default to undergo S.I for 30 days. The appellant is
\nalso convicted for the offence punishable under Section 201 IP Code
\nfor causing disappearance of the evidence and sentenced him to suffer
\nR.I for seven years and to pay fine of Rs. 500\/-, in default to
\nundergo S.I for 15 days. However, the learned trial Judge acquitted
\nthe appellant of the offence punishable under Section 135 of the
\nBombay Police Act. Both the substantive sentences were ordered to run
\nconcurrently.\n<\/p>\n
2.\tThe
\nprosecution case, in nutshell, is that the appellant-accused and the
\ncomplainant happen to be the close relatives i.e. nephew and uncle
\nrespectively, and keeping grudge of the altercation which took place
\nabout six months prior to the date of the incident regarding land,
\nthe appellant, under the pretext of fishing, on 26.6.2003 at about
\n20.00 hours, took deceased Kamlesh with him in the field of Khansing
\nNaktiya Vasava situated in the sim of  Navagam and voluntarily caused
\nhurt with the muddamal weapon Koita and after causing his
\ndeath, threw his dead body  in the well owned by Khansing.\n<\/p>\n
3.\tOn
\nthe basis of the F.I.R lodged by Vechanbhai Khahaliyabhai Vasava, the
\nfather of deceased Kamlesh, offence was registered and investigation
\nwas started. The Investigating Officer recorded  statements of those
\npersons who were found to be conversant with the facts of the case.
\nIncriminating articles, seized during the course of investigation,
\nwere sent to F.S.L for analysis. On completion of investigation, the
\nappellant was charge-sheeted in the Court of learned J.M.F.C.
\nDediyapada for commission of offences punishable under Sections 302 &
\n201 of IP Code.\n<\/p>\n
4.\tAs
\nthe offence punishable under Section 302 I.P.C is exclusively triable
\nby a Court of Sessions, the case was committed for trial to Sessions
\nCourt, Rajpipala, where it was numbered as Sessions Case No.
\n164\/2003. The learned Additional Sessions Judge, Rajpipala, to whom
\nthe case was made over for trial, framed charge against the appellant
\nat Exh.4. The charge was read over and explained to the appellant,
\nwho pleaded not guilty to the same and claimed to be tried. The
\nprosecution, therefore, adduced oral and documentary evidence to
\nprove its case against the appellant. The prosecution examined 17
\nwitnesses and produced required documentary evidence.\n<\/p>\n
5.\tAfter
\nrecording of the evidence of the prosecution  witnesses was over, the
\nlearned Judge of the trial Court explained to the appellant the
\ncircumstances appearing against him in the evidence of the
\nprosecution witnesses and recorded his further statement as required
\nby Section 313 of the Code.  In his further statement, the appellant
\ndenied generally all the incriminating circumstances put to him by
\nthe trial Court and stated that he was falsely implicated in this
\ncase. After considering the evidence on record and submissions made
\non behalf of both the sides, the learned trial Judge came to the
\nconclusion that the prosecution has successfully proved its case
\nbeyond any reasonable doubt against the appellant and recorded his
\nconviction for the offences punishable under Section 302 & 201 of
\nIP Code and awarded sentence referred to earlier, giving rise to
\ninstant appeal.\n<\/p>\n
6.\tHeard
\nlearned advocate Mr. Budhdhbhatti for the appellant and learned
\nA.P.P. Mr.Parikh for the State, at length and in great detail.\n<\/p>\n
7.\tLearned
\nadvocate Mr.Budhdhbhatti has submitted that there is no eye witness
\nto the incident and the entire case rests upon the circumstantial
\nevidence, but, that evidence is also not cogent and reliable. He
\nsubmitted that the evidence of witness Somiben Vechanbhai (PW.11)
\nexamined at Exh.31 could not have been relied upon by the trial Court
\nand the medical evidence also does not indicate that the injuries
\nfound on the dead body were possible by muddmal weapon Koita.
\nHe further submitted that the medical evidence also does not
\npositively indicate that the injuries were caused by the muddamal
\nweapon Koita and thus, the learned trial Judge committed an
\nerror in relying upon the prosecution evidence and therefore, the
\nappeal should be allowed.\n<\/p>\n
8.\tThe
\nlearned A.P.P. Mr.Parikh has opposed this appeal. He submitted that
\nthe evidence of the witness, who last saw the deceased in the company
\nof the appellant is reliable and trustworthy. Mr.Parikh pleaded that
\nthe medical evidence also indicates that the injuries found on the
\ndead body of the deceased were possible by a sharp cutting weapon and
\nthe muddamal weapon recovered at the instance of the appellant was a
\nsharp cutting weapon. The learned A.P.P asserted that cogent and
\nconvincing reasons have been assigned by the learned Judge of the
\ntrial Court for convicting the appellant for the offences punishable
\nunder Sections 302 & 201 of IP Code, and as the learned counsel
\nfor the appellant has failed to dislodge those weighty reasons, the
\nappeal should be dismissed.\n<\/p>\n
9.
\nThis Court has also undertaken a complete and comprehensive
\nappreciation of all vital features of the case and the entire
\nevidence on record with reference to broad and reasonable
\nprobabilities of the case.\n<\/p>\n
10.\tIt
\nis relevant to notice that the prosecution has not claimed that the
\nmurder of the deceased was witnessed by any one and no direct
\nevidence regarding murder of the deceased is tendered before the
\nCourt. Admittedly, the whole case against the appellant rests on
\ncircumstantial evidence. Therefore, before dealing with the
\ncircumstantial evidence on record, it would be worthwhile to notice
\nthe law on the point.\n<\/p>\n
11.\tThe
\nlaw relating to circumstantial evidence is well settled. In dealing
\nwith the circumstantial evidence, there is always a danger that
\nconjecture or suspicion lingering on mind may take place of proof.
\nSuspicion, howsoever strong, cannot be allowed to take place of proof
\nand, therefore, the Court has to be watchful and ensure that
\nconjectures and suspicions do not take place of legal proof. However,
\nit is no derogation of evidence to say that it is circumstantial.
\nHuman agency may be faulty in expressing picturisation of actual
\nincident, but, the circumstances can not fail. Therefore, many a
\ntimes it is aptly said that  men may tell lies, but circumstances
\ndo not . In cases where evidence is of a circumstantial nature, the
\ncircumstances from which the conclusion of guilt is to be drawn
\nshould, in the first instance, be fully established and all the facts
\nso established, should be consistent only with the hypothesis of the
\nguilt of the accused. The circumstances should be of a conclusive
\nnature and  they should be such as to exclude every hypothesis except
\nthe one sought to be proved. There must be a chain of evidence so
\ncomplete as not to leave any reasonable ground for conclusion
\nconsistent with the innocence of the accused and it must be such as
\nto show that within all human probability, the act must have been
\ndone by the accused. In deciding the sufficiency of the
\ncircumstantial evidence for the purpose of conviction, court has to
\nconsider the total cumulative effect of all the proved facts, each
\none of which reinforces the conclusion of guilt and if the combined
\neffect of all these facts taken together is conclusive in
\nestablishing the guilt of the accused, the conviction would be
\njustified even though it may be that one or more of these facts by
\nitself or themselves is, or are not decisive. Where a case rests
\nsquarely on circumstantial evidence, the various sets of
\ncircumstantial evidence should be taken into consideration and their
\ntotal effect should be such that they must lead unerringly to the
\nguilt of the accused. Each fact must be proved individually and only
\nthereafter the sum total of the proved facts has to be taken into
\nconsideration, but this does not mean that before the prosecution can
\nsucceed in a case resting upon circumstantial evidence alone, it must
\nprove each and every hypothesis suggested by the accused, howsoever,
\nextravagant and fanciful it might be. In Sharad v. State of
\nMaharashtra, AIR 1984 SC 1622, after referring to earlier case
\nlaw, the Supreme court has summarized the conditions to be fulfilled
\nin a case based on circumstantial evidence as under : (i) the
\ncircumstances from which the conclusion of guilt is to be drawn
\nshould be fully established. The circumstances concerned `must’ or
\n`should’ and not `may’ be established, (ii) the fact so established
\nshould be consistent only with the hypothesis of the guilt of the
\naccused, that is to say, they should not be explainable on any other
\nhypothesis except that the accused is guilty; (iii) the circumstances
\nshould be of conclusive nature; (iv) they should exclude every
\npossible hypothesis except the one to be proved; (v) there must be a
\nchain of evidence so complete as not to leave any reasonable ground
\nfor the conclusion consistent with the innocence of the accused and
\nmust show that in all human probability the act must have been done
\nby the accused; and (vi) where the various links in a chain are in
\nthemselves complete, then a false plea or a false defence may be
\ncalled into aid only to lend assurance to the Court.\n<\/p>\n
12.\tIf
\nthe aforesaid various conditions are fulfilled,  then only a Court
\ncan use a false explanation or a false defence as an additional link
\nand not otherwise. As observed earlier, if the circumstances proved
\nare consistent with the innocence of the accused, then the accused is
\nentitled to the benefit of doubt. However, in applying this
\nprinciple, distinction must be made between facts called primary or
\nbasic on the one hand and inference of facts to be drawn from them on
\nthe other. In regard to the proof of basic or primary facts, the
\nCourt has to judge the evidence and decide whether that evidence
\nproves a particular fact or not and if that fact is proved, the
\nquestion arises whether that fact leads to the inference of guilt of
\nthe accused person or not. In dealing with this aspect of the
\nproblem, the doctrine of benefit of doubt applies. Although there
\nshould be no missing links in the case, yet it is not essential that
\nevery one of the links must appear on the surface of the evidence
\nadduced and some of these links may have to be inferred from the
\nproved facts. In drawing these inferences or presumptions, the Court
\nmust have regard to the common course of natural events, and to human
\nconduct and their relations to the facts of the particular case.\n<\/p>\n
13.\tHaving
\nnoticed relevant principles governing a case based on circumstantial
\nevidence, this Court proposes to consider the question whether the
\ncase against the appellant is proved.\n<\/p>\n
14.\tThe
\nmother of the deceased i.e. Somiben Vechanbhai (PW 11) is examined by
\nthe prosecution at Exh.31. She had last seen the deceased in the
\ncompany of the appellant. According to her evidence, on the night of
\nthe incident, the appellant had come to her house to call her son
\nKamlesh to go with him for fishing and both of them left her house
\nand thenceforth deceased Kamlesh did not return.  Therefore, on the
\nnext day, FIR was lodged by the father of the deceased. The version
\nof the witness about last seen together has not been challenged in
\nthe cross-examination by the appellant and thereby that version has
\ngone unchallenged. A re-evaluation of testimony of mother of the
\ndeceased makes it very clear that  the appellant was in the company
\nof the deceased when they both left her house for fishing on the day
\nof the incident and thereafter the deceased did not return. The
\nappellant has in his further statement not explained this
\nincriminating circumstance.\n<\/p>\n
15.\tThe
\ntestimony of PW.8 Vithalbhai Lallubhai Tadvi, examined at Exh.26,
\nalso indicates that the deceased was last seen in the company of the
\nappellant. It is true that this witness has been declared hostile and
\nwas cross-examined by the learned A.P.P as well as the learned
\nadvocate for the accused. On reappreciation of the evidence, it
\nappears that the witness has admitted having stated before the police
\nin his statement that he saw the appellant-convict in the company of
\nthe deceased. In view of this, even though the witness has been
\ndeclared hostile, his deposition can be relied upon to connect the
\nappellant with the offence.\n<\/p>\n
16.\tThe
\nevidence of  Dr.Champakbhai Madhavbhai Vasava, PW.13, examined at
\nExh.33, who performed post-mortem on the dead body, indicates that
\nthe deceased had sustained about 9 external injuries and the internal
\ninjuries were corresponding to the external injuries. It also
\nindicates that the injuries were caused on the vital part of the body
\nand the cause of death was injury to vital organ brain and  shock due
\nto severe haemorrhage after injuries to skull and neck. The evidence
\nof this witness also indicates that the injuries were possible by a
\nsharp cutting weapon like Koita. It is true that the witness
\nhas used word  Padiyu  in place of  Koita .\n<\/p>\n
But, there is no dispute that the weapon Koita was also known
\nas Padiyu.  The post-mortem
\nreport produced at Exh.35 indicates the injuries and the cause of
\ndeath. Reappraisal of testimony of Dr.Vasava makes it very clear that
\nthe deceased died because of shock resulting from injury on vital
\norgan (brain). It is also proved beyond pale of doubt that the
\ninjuries noticed by him were ante mortem. The injuries found on the
\ndead body of the deceased were neither natural nor accidental nor
\nsuicidal. Under the circumstances, the fact that the deceased died a
\nhomicidal death stands firmly established by the prosecution.\n<\/p>\n
17.\tA
\nconjoint reading of the medical evidence and the evidence of PW.11
\nand PW.8  reveals that the deceased
\nwas last seen in the company of the appellant and thereafter his dead
\nbody was found in the well. The discussion made above makes it very
\nclear that each of the circumstances sought to be proved is clearly
\nestablished by the prosecution. There is a chain of evidence so
\ncomplete as not to leave any reasonable ground for a conclusion
\nconsistent with the innocence of the appellant. The cumulative effect
\nof proved circumstances is such that
\nthey are only consistent with the guilt of the appellant. The
\nappellant-convict has not explained the incriminating circumstances
\nappearing against him in the evidence and the only explanation
\noffered is that he is innocent and at the time of the incident he was
\nattending ‘bhajans’ at
\nthe place of Amarsing Sursing. In absence of any plausible
\nexplanation and in view of the consistent evidence of the prosecution
\nwitnesses, in our considered opinion, the learned  Judge was
\njustified in coming to the conclusion that the appellant alone and
\nalone, and none-else, was responsible for causing death of deceased
\nKamlesh and rightly convicted the appellant for the offences with
\nwhich he was charged.\n<\/p>\n
18.\t\tFor
\nthe foregoing reasons, the appeal fails and stands dismissed.
\nMuddamal to be disposed of in terms of the directions given by the
\nlearned Judge in the impugned judgment.\n<\/p>\n
\t\t\t\t\t\t\t[A.L.Dave,J.]<\/p>\n
\t\t\t\t\t\t\t[Bankim
\nN.Mehta,J.]<\/p>\n
(patel)+<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Appearance vs Unknown on 5 March, 2010 Author: A.L.Dave,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/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-23192","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAppearance vs Unknown on 5 March, 2010 - 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\/appearance-vs-unknown-on-5-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appearance vs Unknown on 5 March, 2010 - 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