CR.A/549/2000 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 549 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= SARTANBHAI @ RAMESHBHAI KALUBHAI MALIVAD - Appellant(s) Versus THE STATE OF GUJARAT & 1 - Opponent(s) ======================================================= Appearance : MS SADHANA SAGAR for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 18/02/2008 CR.A/549/2000 2/15 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This Criminal Appeal under Sec.374 of the Code of Criminal Procedure ('the Code' for short) has been filed by the appellant-original accused, who has been convicted to suffer life for the offence punishable under Section 302 of the Indian Penal Code and also convicted to suffer rigorous imprisonment for three years and fine of Rs.500/-, in default, to suffer rigorous imprisonment for three months for the offence punishable under Section 201 of the Indian Penal Code vide judgment and order of conviction dated 05.05.2000 delivered by the Learned Addition Sessions Judge, Panchmahal at Godhara in Sessions Case No.148 of 1999. 2.0 The case of the prosecution in short is that one Shivabhai Mansukhbhai Pagi disclosed the commission of offence before Santarampur Police Station alleging inter alia that on 20.03.1999, his brother viz., Natvarbhai (deceased), who had gone with the neighbour viz., Sartanbhai CR.A/549/2000 3/15 JUDGMENT Kalubhai Malivad, had not returned back to home. 2.1 On inquiry being made, he came to know that he did not attend the job also. Upon making search of the deceased, the dead body was found from the well of one Somabhai Valabhai. 2.2 Accordingly, Accidental Death Case No.5/1999 came to be registered and investigation was entrusted to P.S.I., Shri Parsinhbhai Limjibhai, who called two panchas, prepared the inquest panchnama in their presence and also made arrangements for sending dead body of the deceased for postmortem. He also prepared panchnama of scene of offence and also seized other articles by preparing panchnama to that effect and sent the same to FSL for analysis. On receiving the postmortem and FSL reports, same were kept with investigation file. 2.3 He himself has become the complainant and registered the complaint, which came to be registered as Santarampura Police Station I- C.R.No.40/1999 for the offence under Sections 302 and 201 of the Indian Penal Code. CR.A/549/2000 4/15 JUDGMENT 2.4 Further investigation was entrusted to P.S.I., Shri Rathod. He kept the papers of A.D. Case No.5/1999 along with the inquest panchnama and panchnama of scene of offence. He also recorded the statements of various witnesses. As the name of the accused was disclosed, he arrested the accused by preparing necessary panchnama. The appellant-accused has shown willingness to produce the muddamal glass bottle and, therefore, two panchas were called and prepared preliminary panchnama in the Police Station itself and, thereafter, they proceeded as directed by the accused, wherein first the accused has shown the well, in which, he pushed the deceased and, thereafter, produced shirt and pent worn by him at the time of incident and the muddamal glass bottle, by which, blow was given on the head of the deceased, which were seized along with pieces of glass at the instance of accused by way of 27 Panchnama. 2.5 Upon completion of investigation, charge sheet was submitted against the accused in the Court of Learned Judicial Magistrate, First Class, CR.A/549/2000 5/15 JUDGMENT Santarampur. 2.6 As the offence alleged against the accused was exclusively triable by the Court of Sessions, the Learned Judicial Magistrate, First Class, Santarampur committed the case to the Court of Sessions at Panchmahal where it was numbered as Sessions Case No.148 of 1999 and transferred to the Court of Learned Additional Sessions Judge, Panchmahal at Godhara, for trial. 3.0 On production of the accused, the learned Additional Sessions Judge framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 To prove the case against the accused, the prosecution examined 8 witnesses viz., P.W.No.1 viz., Dr.Rameshchandra Harjivanbhai at Exh.5, P.W.No.2 viz., Shivabhai Mansukhbhai at Exh.10, P.W.No.3 viz., Shardaben Natvarbhai at Exh.12, P.W.No.4 viz., Prabhatbhai Raymalsinh at Exh.13, P.W.No.5 viz., Abesinhbhai Rupabhai Khant at Exh.14, P.W.No.6 viz., Laxmanbhai Amarbhai at Exh.15, P.W.No.7 viz., Parsinhbhai Limjibhai at Exh.23 and P.W.No.8 viz., CR.A/549/2000 6/15 JUDGMENT Raghunath Motisinh Rathod at Exh.25. 3.2 The prosecution also placed reliance upon several documentary evidence viz., P.M. Report at Exh.6, Medical Certificate at Exh.7, complaint at Exh.11, recovery panchnama at Exh.16, inquest panchnama at Exh.17, panchnama of scene of offence at Exh.20, body position panchnama of the accused at Exh.21, map of scene of offence at Exh.22 etc. 3.3 On submission of closing purshis by the prosecution, Learned Additional Sessions Judge recorded the further statement of the accused under Section 313 of the Code qua the incriminating question wherein the accused came out with the case of total denial. Thereafter, on hearing, the Learned Additional Sessions Judge, Panchmahals at Godhara, delivered the impugned judgment, which gave rise to prefer this Criminal Appeal. 4.0 Heard learned Counsel for the appellant- accused, Ms.Sadhana Sagar and learned APP, Mr.H.L. Jani for the State. 4.1 Ms.Sadhana Sagar has taken us through the CR.A/549/2000 7/15 JUDGMENT evidence of P.W.No.2 viz., Shivabhai Mansukhbhai (Complainant), Exh.10, P.W.No.3 viz., Shardaben Natvarbhai (Wife of the deceased) at Exh.12, P.W.No.4 viz., Prabhatbhai Raymalsinh, Exh.13 (the person, who was serving with the deceased), P.W.No.5 viz., Abesinhbhai Rupabhai Khant (the person, who accompanied the deceased on 28.09.1999), Exh.14 and P.W.No.8 viz., Raghunath Motisinh Rathod, Exh.25 and argued that all the above referred witnesses are not the witnesses of incident. 4.2 It is argued that the prosecution case is based on circumstantial evidence and that too also on the evidence of last seen together. After taking us through the evidence of above referred witnesses, it is argued that the case of the prosecution is based only on the evidence of last seen together and if the Court accepts the evidence evidence of above referred witnesses then also, the prosecution has failed to prove the theory of last seen together because as per the evidence of the Shardaben Natvarbhai (P.W.No.3, Exh.12), when the CR.A/549/2000 8/15 JUDGMENT deceased has left the house, there were four persons (deceased, accused and two other persons) and as per the evidence of Abhesinhbhai Rupabhai Khant (P.W.No.5, Exh.14), on the night of alleged incident, there were three persons. Thus, the present appellant has been falsely involved into the crime in question and the motive has not been established. 4.3 It is argued that the discovery panchnama is not in eye of law and, therefore, it is required to be discarded. After taking us through the oral as well as documentary evidence, it is argued that even as per the evidence on record, the naked body of the deceased and the clothes of the deceased were found from the well. 4.4 It is argued that the deceased was drunkard and even as per the prosecution, lastly they have drunk liquor and all three went together. 4.5 It is also argued that even as per the evidence on record, well is on the road and, hence, he might have slipped or fell down into the well. CR.A/549/2000 9/15 JUDGMENT 4.6 Lastly, she has argued that in any circumstances of the matter, the evidence of last seen together is not satisfactory and it requires strongest corroboration and in absence of that, there is no evidence worth the name to connect the accused with the crime in question. 5.0 Learned APP, Mr.H.L. Jani, has also taken us through the oral as well as documentary evidence and also taken us through the impugned judgment delivered by the court below and submitted that the prosecution has proved the case against the appellant-accused beyond reasonable doubt. 5.1 It is submitted that it is true that the prosecution case is based on the principles of last seen together and according to him, the prosecution has proved that on the night of alleged incident, the appellant was with the deceased and others and, therefore, he has to explain that what has happened to him and in absence, it is the strongest evidence, which connect the accused with the crime in question. 6.0 We have gone through the oral as well as CR.A/549/2000 10/15 JUDGMENT documentary evidence shown to us by the learned counsel for the respective parties together with the reasoned judgment delivered by the court below. 6.1 It is required to be noted that P.W.No.2 viz., Shivabhai Mansukhbhai, Exh.10 is the brother of the deceased and he has no knowledge regarding the incident. Even he has not seen either his brother or any other persons on 20.03.1999 and he came to know about missing of his brother for the first time on 22.03.1999 when his brother's wife, Sharda informed him and, therefore, he tried to search the persons from neighbours, relatives and also in the vicinity and while searching, the dead body of the deceased was found in the well and, therefore, he has disclosed the same before Santarampur Police Station, which came to be registered as A.D. Case No.5/1999. Except that, his evidence does not support the prosecution case. 6.2 As far as P.W.No.3, Shardaben Natvarbhai, Exh.12 is concerned, she is the wife of the deceased and her evidence can be relied upon CR.A/549/2000 11/15 JUDGMENT upto 20.09.1999. She deposed that her husband and Sartan both came to house and after taking dinner, they went to the house of Sartan Kalu and, thereafter, the deceased had not returned back and, therefore, she informed the brother of the deceased. 6.3 As far as other part of evidence is concerned, she has stated that previously, quarrel took place between the deceased and the accused, at that time, the accused was telling the deceased that because of you, I have lost my job and I will see that how many days, you are going to serve. In her cross-examination, she deposed that at the time of incident, her husband was not working as cleaner with the appellant- accused, but was working as a cleaner with one Gulana Khant. She also admitted in her cross- examination that she came to know that Abhesing Rupa and Galap Kaul took her husband to the house of accused, Sartant. So the deposition qua to that effect is only on the basis of hearsay. She has also admitted that the distance between her house and the house of CR.A/549/2000 12/15 JUDGMENT accused is about 1 Km. She has also admitted that chappal of her husband has been found from the field of Pratap Raymal and same has been seized under Panchnama. 6.4 As far as P.W.No.4 viz., Prabhatbhai Raymalsinh, Exh.13 is concerned, he is the bootlegger. As per his deposition, 12 months prior to the date of incident, at about 11 o'clock in the night, the appellant-Sartan Kalu, deceased-Natvar and one Abha Rupa all three came there and gave Rs.9/- to him and asked for liquor and, thereafter, after drinking the same, they proceeded towards their house. Except that, he has not deposed further into the matter and from his evidence, it is proved that there were four persons last seen together. 6.5 As far as P.W.No.5 viz., Abhesing Rupabhai Khant, Exh.14 is concerned, he has not supported the say of the prosecution and has been declared hostile. He is the person, whose residence, the deceased and accused went and they seat there for hour. He was arrested by CR.A/549/2000 13/15 JUDGMENT the Police, however, he was made free. 6.6 In short, from the evidence of the wife of the deceased, it appears that she came to know about the incident on hearsay basis. It is required to be noted that evidence of last seen together is also very weak evidence as initially, it has been established that four persons were there, but it also creates doubt and it appears that there were three persons. Not only that, nobody supports the prosecution case to the effect that they have seen the accused prior to the incident along with the deceased except hostile witness. Not only that, the discovery panchnama is not as per the eye of law and evidence of P.W.No.1, doctor is also required to be kept in mind, which shows that the deceased had in all four injuries, but Injury No.3 is possible by way of hard and blunt substance. 6.7 The doctor has further opined that if somebody uses the same with force then, this type of injury is possible and injury no.3 is corresponding and fatal injury and all the four CR.A/549/2000 14/15 JUDGMENT injuries were anti-mortem. He has opined that the timing of injury no.3 and other injuries are different one. 7.0 Taking the same, learned counsel for the appellant has drawn our attention that he might be a case, wherein the appellant, who had drunken the liquor and, thereafter, he might have proceeded home and he might have fell down into the well and received injuries. 7.1 We are not entering into the above aspect, but we are of the opinion that it is true that the death of the deceased is homicidal one, but the prosecution has failed to connect the accused with the crime in question and the evidence of last seen together is also weak, which requires some more corroboration and in absence of that, the benefit of doubt is required to be given to the appellant-accused. 8.0 In the result, the appeal is allowed. Judgment and Order of conviction and sentence dated 05.05.2000 delivered by the Learned Additional Sessions Judge, Panchmahals at Godhara in Sessions Case No.148 of 1999 are quashed and CR.A/549/2000 15/15 JUDGMENT set aside. He is, therefore, ordered to be set at liberty forthwith, if not required in any other offence. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil