CR.A/875/1999 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 875 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================= 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 ? ========================================= PRAKASH TRIKAMRAO ALIAS GANPAT DIGAY & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MISS CHETANA M SHAH FOR HL PATEL ADVOCATES for Appellants. MR HL JANI, LD.ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 11/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N. PATEL) CR.A/875/1999 2/15 JUDGMENT 1. The present appeal has been preferred by the appellants-orig.convicts against the judgment and order of conviction and sentence dated 13th August 1999 passed by the learned Additional Sessions Judge, Ahmedabad City, Court No.5, Ahmedabad, in Sessions Case No.267 of 1996, whereby the present appellants have been convicted for the offence punishable under Section 302 of the Indian Penal Code for Life Imprisonment as well as to pay a fine of Rs.1,000/- and in case of default 3 months' rigorous imprisonment. The appellants have been convicted and sentenced for the offence punishable under Section 323 of the Indian Penal Code for a period of six months' rigorous imprisonment as well as to pay a fine of Rs.1,000/- and in case of default to undergo rigorous imprisonment for three months. The appellants have also been convicted and sentenced for the offence punishable under Section 506 of the Indian Penal Code for a period of six months' rigorous imprisonment as well as to pay a fine CR.A/875/1999 3/15 JUDGMENT of Rs.1,000/- and in case of default to undergo further rigorous imprisonment for three months. The appellants have also been convicted and sentenced for the offence punishable under Section 201(2) of the Indian Penal Code for a period of 2 years' rigorous imprisonment as well as to pay a fine of Rs.1,000/- and in case of default to undergo further rigorous imprisonment for three months. 2. If the case of prosecution is unfolded, the facts of the present case in nutshell are as under : 2.1 It is the case of prosecution that on 23rd July 1996 at about 22-00 hours, the appellants were beating Dinesh Ramnarayan Bhaiya (deceased) and there was a hot altercation. The complainant intervened and she was also beaten. The appellants chased the said Dinesh Ramnarayan Bhaiya. Threat was also administered to the complainant. It is also a case of the prosecution that thereafter the CR.A/875/1999 4/15 JUDGMENT dead body of Dinesh Ramnarayan Bhaiya was found out from the river Sabarmati, City of Ahmedabad, and a complaint was filed by Menaben Ramnarayan Bhaiya, mother of the deceased, on 24th July 1996. The case was investigated by the Investigating Agency. The chargesheet was filed against the present appellants and Sessions Case No.267 of 1996 was registered against the appellants. Upon recording of evidence by the trial Court, the appellants have been punished as stated hereinabove. Barring two medical officers and two Police Witnesses, who are from PW-9 to PW- 12, all the prosecution witnesses, including the complainant, have turned hostile. 3. We have heard the learned counsel appearing for the appellants, who has mainly submitted that there is no eye-witness of the incident. There is no evidence against the present appellants, much less cogent, convincing and beyond reasonable doubt, which links the appellants with the offence. The learned counsel appearing for the appellants has taken CR.A/875/1999 5/15 JUDGMENT this Court through the examination-in-chief as well as cross-examination of the witnesses and submitted that barring two Police Witnesses and two Medical Officers, not a single prosecution witness has been able to prove the prosecution case beyond reasonable doubt. It is also vehemently submitted by the learned counsel appearing for the appellants that the chain of circumstances has not been proved against the present appellants. There are a number of omissions, contradictions and improvements in the depositions of prosecution witnesses, mainly of PW-1 and PW-2, upon which reliance has been placed by the trial Court erroneously. It is also submitted by the learned counsel appearing for the appellants that when the case of prosecution is based upon circumstantial evidence, the motive has to be proved by the prosecution. The motive stated in the FIR is quite different than what is stated by the prosecution witnesses in their depositions. PW-2, who is the brother of the deceased, has also not supported the case CR.A/875/1999 6/15 JUDGMENT of prosecution and conclusion, therefore, arrived at by the trial Court that PW-2 has supported the case of prosecution, is de hors the evidence and, therefore, the judgment and order of conviction and sentence passed by the trial Court against the appellants deserves to be quashed and set aside. No link between the offence and the appellants has been proved by the prosecution. This aspect of the matter has also not been appreciated by the trial Court and lastly it is submitted by the learned counsel appearing for the appellants that the trial Court has emphasized much upon what is not stated by the prosecution witnesses in their depositions. In fact, trial Court has placed much more reliance upon what is stated by the prosecution witnesses before the Police, which cannot be the basis of the conviction of appellants and therefore, the judgment and order of conviction and sentence passed by the trial Court deserves to be quashed and set aside. CR.A/875/1999 7/15 JUDGMENT 4. We have heard the learned Additional Public Prosecutor appearing on behalf of the respondent-State, who has submitted that there is enough cogent and convincing evidence against present appellants, especially looking to the depositions of PW-1 and PW-2, to be read with depositions given by the Police Witnesses. All the panchnamas have been proved by the Police Witnesses, especially panchnama of scene of offence, panchnama of auto- rickshaw, etc. It is also submitted by learned Additional Public Prosecutor that even if the prosecution witnesses have turned hostile, their depositions cannot be brushed aside in totality. PW-1 has proved her complaint, which is at Ex.25. It is submitted by the learned Additional Public Prosecutor that looking to the evidence of the prosecution witnesses, no error has been committed by the trial Court in appreciating the evidence and convicting the present appellants and, therefore, the judgment and order of conviction and sentence may not be altered by this Court. CR.A/875/1999 8/15 JUDGMENT 5. Having heard the learned counsel appearing for both the sides and looking to the evidence on record, it appears that the offence has taken place on 23rd July 1996 at about 22-00 hours. The complainant is the mother of the deceased. The dead body of the deceased was found from the river Sabarmati. Looking to the evidence on record, the whole incident can be divided into two parts. The first part is that Dinesh Ramnarayan Bhaiya (deceased) was beaten by the appellants. The complainant was informed by her younger son about the same. Thereafter, the complainant had rushed to the house of the appellants. Meanwhile, one of the appellants gave her fist blow and thereafter, they also administered threat to the complainant. Thereafter, they were chasing the deceased and thereafter, the dead body of the deceased was found out. This is the highest case of the prosecution as per the FIR which is at Ex.25. Looking to the depositions given by the PW-1 complainant at Ex.16, there is total departure from the FIR by this PW-1. This witness has CR.A/875/1999 9/15 JUDGMENT not supported the case of prosecution. The motive alleged in the FIR is to the effect that the deceased had attempted to hold the hand of sister-in-law of one of the appellants, whereas looking to the deposition given by PW-1 at Ex.16, another motive has been stated. Looking to her deposition, she has also improved her case about inflicting her fist blow. What is stated in the FIR is not stated in her deposition. She has been declared as hostile. Looking to the totality of evidence presented by the prosecution, we are of the opinion that the complainant is not the trustworthy witness. Not only that she has not supported the case of prosecution, but she has much more improved her case. There are omissions and contradictions which are material in nature, which destroy the substratum of the prosecution case. The conclusion arrived at by the trial Court that PW-1 complainant, who has been examined at Ex.25, has supported the case of prosecution, is totally de hors the evidence. CR.A/875/1999 10/15 JUDGMENT 6. Looking to the evidence given by PW-2, Suresh R. Bhaiyaji, who has been examined at Ex.17 and who is the brother of deceased, it appears that he has also not supported the case of prosecution. Looking to his examination-in- chief and cross-examination, there is nothing in his evidence which supports the case of prosecution. For conviction the trial Court has relied upon what this witness has stated before the Police. This is an error apparent on the face of the record. No conviction can be based upon a statement made by a witness before the Police. There is a vast difference between the statement made by a witness before the police and the deposition given by him before the Court. The omissions and contradictions can be proved before the Court with the help of statement of the witness given under the provisions of the Code of Criminal Procedure, 1973. However, this statement given before the Police during the course of investigation cannot be based upon for conviction. This aspect of the matter has CR.A/875/1999 11/15 JUDGMENT not been appreciated especially by the trial Court. 7. Looking to the deposition given by PW-4 Manjula D. Bhaiya, who has been examined at Ex.19 and who is the wife of deceased, it appears that she has also not supported the case of prosecution. She has also been declared as hostile. There is nothing in her deposition which favours the case of prosecution or proves the accusations levelled by the prosecution against appellants beyond reasonable doubt. 8. Looking to the depositions of PW-3 Mehboob S. Shaikh, PW-6 Nizam Belim, PW-7 Madhukar D. Naik, PW-8 Chandubhai M. Patel and the panch witnesses of scene of offence as well as auto- rickshaw, it appears that they have not supported the case of prosecution. There is nothing in their depositions by which it can be said that the appellants are connected with the offence in question. CR.A/875/1999 12/15 JUDGMENT 9. Now the only left out witnesses are the Police Witnesses, who have been examined as PW-9 and PW-11 at Ex.24 and Ex.29 respectively, who have recorded the complaint and have carried out further investigation. Looking to the depositions of these witnesses and as stated hereinabove, it appears that PW-1 has narrated different facts before the Court than the facts narrated in the complaint at Ex.25. There are material omissions and contradictions in the deposition of PW-1. Even the motive stated in the complaint and the motive stated before the Court in her deposition, are different. Further looking to the deposition given by PW-11, the Investigating Officer, the omissions and contradictions have been proved. As a cumulative effect of evidence of these prosecution witnesses, it cannot be said that the prosecution has proved beyond reasonable doubt that the present appellants have committed murder of Dinesh Ramnarayan Bhaiya. In fact, there is no evidence at all before CR.A/875/1999 13/15 JUDGMENT the Court which links the appellants with the offence of murder. Even if there is no eye- witness, the prosecution could have proved the chain of circumstances which is so complete that it leads to one and only conclusion that they are the appellants and the only appellants who have committed the murder of Dinesh Ramnarayan Bhaiya. As per the evidence of prosecution witnesses, no such circumstance has been proved by the prosecution. In fact, this is a case of no evidence, much less cogent and convincing. This aspect of the matter has also not been appreciated by the trial Court. The trial Court has placed much reliance upon the depositions of PW-1 and PW-2 and also upon the FIR and the statement of PW- 2 before the Police. However, as stated hereinabove, no conviction can be based upon a statement of a witness made before the Police. There ought to have been a clear, cogent and convincing evidence before the Court. In the present case, there is no evidence before the Court which links the CR.A/875/1999 14/15 JUDGMENT appellants with the offence of murder of Dinesh Ramnarayan Bhaiya. 10. Looking to the evidence on record, it appears that there is a callous and casual approach on the part of Investigating Agency. Had a care been taken by the Investigating Agency, enough evidence could have been collected by them. Looking to the FIR at Ex.25, it appears that there are eye-witnesses of the incident named by the complainant herself. We are unable to find out the fact that their statements have ever been recorded or not. Even they could have been called and examined by the trial Court and non-examination of the independent witnesses destroys the case of prosecution, especially when they were available and named in the FIR. In view of these facts and as a cumulative effect of evidence on record and as a result thereof, we are of the view that the judgment and order of conviction and sentence under challenge is required to be quashed and set aside. CR.A/875/1999 15/15 JUDGMENT 11. In view of aforesaid observations and discussion, the present Criminal Appeal is hereby allowed. The judgment and order of conviction and sentence dated 13th August 1999 passed by the learned Additional Sessions Judge, Ahmedabad City, Court No.5, Ahmedabad, in Sessions Case No.267 of 1996, is hereby quashed and set aside. All the three appellants are hereby ordered to be acquitted from the charge of offences levelled against them and they are ordered to be set at liberty forthwith, if they are not required to be detained in any other offence/s. The amount of fine, if any, paid by appellants be refunded to each appellant respectively on his proper identification. Direct Service is permitted. (C.K. Buch, J) (D.N. Patel, J) Aakar