CR.A/216/2000 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 216 of 2000 With CRIMINAL APPEAL No. 283 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= THAKOR SEDHAJI RAVAJI - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : Criminal Appeal No.216 of 2000. MS SADHANA SAGAR appointed by Free Legal Aid Committee for Appellant MR MUKESH PATEL APP for Respondent CR.A/216/2000 2/42 JUDGMENT Criminal Appeal No.283 of 2000. MR MUKESH PATEL APP for appellant MR G.RAMAKRISHNAN, MR. J.M. BUDDHABHATTI AND MS. K.D. PARMAR, appointed by Free Legal Aid Committee for respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 25/07/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in these two criminal appeals is to the correctness of the judgment and order dated 10.2.2000 rendered in Sessions Case No. 35 of 1999 by the learned Additional Sessions Judge, Mehsana by which Thakor Sendhaji Ravaji, appellant of Criminal Appeal No.216 of 2000 ('A- 1' for short) has been convicted for the offences punishable under Section 302/34 and Section 201 of the Indian Penal Code ('IPC' for short) and sentenced to imprisonment for life and fine of Rs.3,000/- i.d., imprisonment for one year for CR.A/216/2000 3/42 JUDGMENT the offence under Section 302 read with Section 34 IPC and rigorous imprisonment for two years and fine of Rs.1,000/- i.d., imprisonment for six months for the offence under Section 201 IPC whereas Thakor Jugiben, wife of Thakor Sendhaji Ravaji, respondent of Criminal Appeal No.283 of 2000 ('A-2' for short) has been acquitted of the offences with which she was charged, by giving benefit of doubt. 1.1. Aggrieved by the impugned judgment and order, A-1 has filed Criminal Appeal No.216 of 2000 under Section 374 of the Code of Criminal Procedure ('the Code' for short) challenging the order of conviction and sentence recorded against him whereas State of Gujarat has filed Criminal Appeal No.283 of 2000 under Section 378 of the Code against A-2 challenging the order of acquittal recorded in her favour. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: CR.A/216/2000 4/42 JUDGMENT 2.1. P.W.9, Maganbhai Harjibhai Chaudhari, brother of deceased Babubhai, has lodged a complaint before P.W.11, Arjun Girdharilal Mistri, P.I. of Visnagar wherein it is, inter alia, alleged that on the day of the incident, he was at his well after completing agriculture work in the morning. His youngest brother Babubhai came from the village with lunch for his father at about 1 O'clock at the well. He was sleeping below a neem tree after giving lunch to his father. He was resting with him in a cot nearby him. At that time Thakor Senthaji Ravaji residing in a cottage in the irrigated field in the sim of their village came at about 2 P.M. at his bore and took his younger brother Babubhai saying that he has work. At that time when he asked his brother he also told him that he is coming in an hour. His brother Babubhai went with Thakor Senthaji Ravaji by saying so. At that time his brother Devjibhai was also resting with him in the cot. His younger brother Babu did not return CR.A/216/2000 5/42 JUDGMENT till 6 O'clock in the evening. So he and his younger brother Dahyabhai went to the house of Thakor Senthaji Ravaji and asked his father Ravaji. Ravaji Motiji said that his son Senthaji and his wife had gone to the field since afternoon and have not returned yet. His brother Babu had not come there. So both the brothers came in the village. Their relatives Punjabhai Fuljibhai Chaudhari and Sangrambhai Vahjibhai Chaudhari and his brother Devjibhai all inquired in the Andhelavala Anta Paliyavala field. At that time it was night. The vetch was cut in his portion of the field. There was a government irrigation bore on Gunjala-basana road which was closed at that time. The grass and plantings were dragged in different fields and thereby there was a pathway. They inquired in surrounding area and thereafter returned to the village. They also inquired with their relatives in surrounding villages i.e., Punasan, Meghaaliyasana, Ghumthal, etc., and returned home late at night. CR.A/216/2000 6/42 JUDGMENT It was further case of the prosecution that relatives of the complainant and village leaders again inquired at the places mentioned above at about 7:30 A.M. On looking into the vetch field kept by him in mortgage, blood was found and blood was seen at different places from there towards the closed government irrigation bore. Therefore they again went to the house of Thakor Senthaji Ravaji and inquired. Thakor Senthaji and his wife Jugiben were not present in the house. Upon asking his father Ravaji Motiji, he told that they had not returned since the day before. So they inquired at the houses of Thakor Manaji Raghuji and Vaghari Bakabhai Somabhai who were residing near the field where there was blood. Manjuben, the daughter of Thakor Manaji Raghuji and Vinaben, the daughter of Bakabhai Somabhai Vaghari told that Senthaji Ravaji was beating somebody in the Paliyavala field of vetch at 2.30 P.M. and when they went to see there, Senthaji Ravaji came out from the vetch. He had put on black pant and his CR.A/216/2000 7/42 JUDGMENT upper body was open. On seeing them he told that they should go to their way and on saying so they went away. It was further case of the prosecution that Babubhai, brother of the complainant, was scolding Thakor Senthaji Ravaji and his wife Jugiben for cutting grass and taking the same frequently and there was exchange of words between them. Senthaji Ravaji was demanding the field in his share. They apprehended that Senthaji had taken his brother Babubhai at 2 O'clock in the afternoon from his well on the day of the incident and took him to Paliyavala field and killed him and threw his dead body in the government irrigation dead bore pipe. He immediately approached the office of D.S.P. at 11 O'clock in the morning and asked to make an inquiry immediately. He was asked to go to the police station for lodging the complaint and he returned to their village Gunjala. He has come to know that Senthaji Ravaji Thakor and his wife CR.A/216/2000 8/42 JUDGMENT Jugiben had gone to present themselves in Vasai Police station. Thereafter they have arrived in their village and he personally made the complaint before the police inspector. 2.2. The aforesaid complaint was recorded by P.W.11, Arjun Girdharilal Mistri. Thereafter he started investigation. During the course of the investigation, he visited the place of offence as shown by P.W.9, Maganbhai Harji Chaudhari, the complainant and drawn the panchnama of the place of offence in presence of panchas. He collected the blood stained earth as well as control earth and also collected the blood from the bore, in presence of panchas. 2.3. Both the accused persons voluntarily appeared before Vasai Police Station and, therefore, they were sent to the place of offence under police control. They disclosed that the dead body of Babubhai had been thrown to the bore and therefore he arranged to call experts to take CR.A/216/2000 9/42 JUDGMENT out the dead body from the bore. On arrival of the expert to take out the dead body from the bore, first they got right hand of the deceased and thereafter the whole dead body was taken out. Thereafter inquest was held on the dead body and it was sent for post mortem examination. He has also recorded statements of the witnesses. Since the accused were under police control, he has drawn the panchnama of their person in presence of panchas and they were arrested. As they had shown their willingness to show the muddamal articles used for committing murder of Babubhai and the dress worn by them, in presence of panchas discovery panchnama under Section 27 of the Evidence Act was drawn which is at Ex.27. On the basis of the information supplied by them, one axe and sickle and clothes were recovered and accordingly discovery panchnama was drawn in presence of panchas and the said muddamal articles were sent to FSL and the accused were sent to jail. CR.A/216/2000 10/42 JUDGMENT 2.4. The aforesaid complaint is registered vide CR No.I- 414 of 1998 at Visnagar Police Station for commission of the offences under Sections 302/34 of IPC. The said complaint is at Ex.79. 2.5. During the course of investigation it was revealed that there was a dispute with respect to agricultural land between the family members of the deceased and the accused and, therefore, the accused committed murder of Babubhai. On receipt of the FSL report and post mortem report and as sufficient incriminating evidence was found against the accused, charge sheet was filed against the accused in the court of learned JMFC, Visnagar. 2.6. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Visnagar committed the case to the Court of sessions, Mehsana where it was numbered as Sessions Case No. 35 of 1999. CR.A/216/2000 11/42 JUDGMENT 2.7. The learned Additional Sessions Judge, Mehsana ('the trial court' for short) to whom the case was made over for trial framed charge against the accused for commission of offence under Section 302 read with Section 34 and Section 210 IPC. The charge was read over and explained to both the accused. Both the accused pleaded not guilty to the charge and claimed to be tried and, therefore, they were put to trial by the trial Court in Sessions Case No.35 of 1999. 2.8. In order to bring home the charge levelled against the accused, the prosecution has examined in all 13 witnesses and also produced a number of documents like complaint, various panchnamas, post mortem report, FSL report, etc., and relied upon the contents of the same, details of which have been mentioned in paragraph 3 of the impugned judgment and order. Relevance of those evidences will be discussed in this CR.A/216/2000 12/42 JUDGMENT judgment hereinafter. 2.9. After recording of the evidence of the prosecution witnesses was over, the trial court recorded the further statement of the accused as required under Section 313 of the Code. In their further statement both the accused denied the case of the prosecution in its entirety. They have stated that false case has been filed against them. However, they have neither produced any evidence nor did they examine any witness in support of their defence. 2.10. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court has come to the conclusion that the prosecution has established that the deceased Babubhai died a homicidal death. It is also held by the trial court that the prosecution has on the basis of the circumstantial evidence successfully established the complicity of A-1 for commission of the offence with which he was CR.A/216/2000 13/42 JUDGMENT charged. The trial court has also held that the presence of A-2 with A-1 at the time of the commission of the crime is doubtful and therefore the prosecution has failed to prove the charge levelled against A-2 beyond doubt. The trial court therefore convicted A-1 for the offence with which he was charged and acquitted A-2 of the offence with which she was charged by giving benefit of doubt. It is this judgment and order which has given rise to instant two criminal appeals one being Criminal Appeal No.216 of 2000 filed by A-1 against the conviction and sentence passed against him and another being Criminal Appeal No.283 of 2000 filed by the State of Gujarat challenging the acquittal of A-2. 3. Ms. Sadhna Sagar, learned advocate appointed by Free Legal Aid Committee for A-1 who is the appellant in Criminal Appeal No.216 of 2000, has submitted that there is no eye witness to the incident. The prosecution case is based entirely on circumstantial evidence. The CR.A/216/2000 14/42 JUDGMENT prosecution has failed to prove the motive for committing the crime. The prosecution has failed to prove enmity between the accused and deceased Babubhai. Even the circumstances relied upon by the prosecution are not sufficient to prove the guilt of A-1 beyond reasonable doubt. This is a case of 'no evidence' and the prosecution has not been able to establish the chain of circumstances to connect A-1 with the crime. 3.1. On the aforesaid premises, according to her, there is no eye witness to the incident and the circumstantial evidence on which the prosecution has placed reliance does not complete the chain of circumstances to connect A-1 with the crime and, therefore, by allowing the appeal, the impugned judgment and order passed by the trial court convicting A-1 for commission of the offence under Section 302 read with Section 34 and Section 201 IPC and sentencing him for the said offences deserves to be quashed and set aside and A-1 may be acquitted of the offences CR.A/216/2000 15/42 JUDGMENT with which he was charged. She, therefore, urged to allow the appeal. 4. Per contra, Mr. Mukesh Patel, learned APP has supported the judgment and order passed by the trial court and submitted that it is just and proper and does not require interference of this Court. According to him, no interference is called for in the appeal filed by A-1 as the judgment and order of the trial court is just and proper and is on the basis of the evidence on record. He has further contended that no case is made out to take a view contrary to the view taken by the trial court. According to him, it is true that there is no eye witness to the incident of murder of Babubhai. However, there is consistent evidence with regard to the previous enmity of the deceased with the accused with regard to land. Moreover, the deceased was last seen together with A-1 who has taken him from the field. The conduct of the accused as proved from the evidence of P.W.2, Vinaben Bakabhai Vaghari, CR.A/216/2000 16/42 JUDGMENT who saw accused at the relevant time also proves his guilt. Therefore, according to him, it is a case of circumstantial evidence and the prosecution has been able to adduce sufficient circumstantial evidences and thereby the prosecution has established the complicity of A- 1 in commission of the crime. On the aforesaid premises, he submitted that the appeal filed A-1 lacks merit and deserves to be dismissed. He, therefore, urged to dismiss the appeal. 5. So far as Criminal Appeal No.283 of 2000 filed by the State of Gujarat against the acquittal of A-2, it is contended by Mr. Mukesh Patel, learned APP for the appellant – of Gujarat that A-2 was in the company of A-1 at the time of commission of crime and therefore the order of acquittal recorded in her favour is contrary to the evidence on record. There is ample evidence on the record to connect A-2 to with the commission of the offence of murder of Babubhai but the trial court has not appreciated CR.A/216/2000 17/42 JUDGMENT the evidence in its proper perspective and thereby wrongly acquitted A-2. He, therefore, submitted that the appeal filed by the State of Gujarat challenging the acquittal of A-2 deserves to be allowed and thereby judgment and order of acquittal recorded in favour A-2 may be quashed and set aside and A-2 may be convicted and sentenced for the commission of the offences with which she was charged. He, therefore, urged to allow Criminal Appeal No.283 of 2000. 6. We have considered the submissions advanced by the learned advocate Ms. Sadhna Sagar, learned Advocate for A-1 who is appellant in Criminal Appeal No.216 of 2000 and Mr. Mukesh Patel, learned APP for respondent – State of Gujarat. Similarly, we have heard Mr. Mukesh Patel, learned APP for the appellant – State of Gujarat in Criminal appeal No.283 of 2000. We have also perused the impugned judgment and order and the set of evidence. This Court has undertaken a complete and comprehensive CR.A/216/2000 18/42 JUDGMENT appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with the cases in which sentence of imprisonment for life is imposed on the accused on the basis of circumstantial evidence, this Court has examined the entire evidence on record for itself independently of the trial Court and examined arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether it was the accused and none else who have committed the offences as alleged against them. We have also gone through the documents which are on record and forming part of the paper book. 7. At the outset, be it noted that so far as the homicidal death of Babubhai is concerned, no dispute is raised by the learned advocate for the accused before this Court. It is submitted by the CR.A/216/2000 19/42 JUDGMENT learned advocate for the accused that Babubhai died a homicidal death. However, we have perused the evidence of P.W.1, Dr. Mansingbhai Laljibhai Chaudhari, Ex.10, who performed post mortem examination on the dead-body of Babubhai. He performed the post mortem examination with the panel doctor A.S. Naik. They have issued autopsy report which is at Ex.11. 7.1. On a conjoint reading of the evidence of P.W.1, Dr. Mansingbhai Laljibhai Chaudhari, Ex.10 and autopsy report at Ex.11, there is no manner of doubt that Babubhai died a homicidal death and, therefore, according to us, the trial court has rightly held that Babubhai died a homicidal death and we confirm the said finding of the trial court. 8. Now the next question which is required to be examined and answered by us is as to whether A-1 has committed the offence of murder of Babubhai punishable under Section 302 IPC and whether A-2 CR.A/216/2000 20/42 JUDGMENT has also abetted A-1 in doing the said crime. 9. So far as the instant case is concerned, there is no eye witness to the incident of killing the deceased. The whole case of the prosecution has rested on the circumstantial evidence. 10. It is settled principle of law that in order to sustain conviction on the basis of circumstantial evidence, prosecution must fulfill three conditions: (a) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (b) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (c) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by CR.A/216/2000 21/42 JUDGMENT the accused and none else, and it should also be incapable of explanation of any other hypothesis than that of the guilt of the accused. Further, in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. The above principles are laid down by the Supreme Court in the case of Jaharlal Das v. State of Orissa AIR 1991 SC 1388. 11. It is also one of the settled principles CR.A/216/2000 22/42 JUDGMENT of law that witnesses may tell lies but not circumstances. The Court must adopt cautious approach for basing conviction on circumstantial evidence. The Supreme Court has reiterated it in the case of State of Haryana v. Ved Prakash, AIR 1994 SC 468. 12. The Supreme Court in the case of Ramkumar Madhusudan Pathak v. State of Gujarat, (1998) 7 SCC 702 has aptly and elaborately laid down the principles as to which are the circumstances establishing guilt of the accused. 13. The Supreme Court in the very well known case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, has laid down following five principles to base conviction on the circumstantial evidence: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances CR.A/216/2000 23/42 JUDGMENT concerned 'must or should' and not 'may be' established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved, and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. In the case of Jaipal v. State of Haryana, (2003) 1 SCC 169, the Supreme Court has held that merely because the accused could have CR.A/216/2000 24/42 JUDGMENT had a motive for causing death of the deceased it would not by itself be enough to sustain the finding of guilt against him. 15. In the latest decision of the Supreme Court in the case of Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka, 2007 AIR SCW 4513, the Supreme Court has said that law in this behalf is no more res-integra and also reiterated the five principles enunciated by the Supreme Court in its previous decision in the case of Sharad Birdhichand Sarda (supra) to base conviction on circumstantial evidence. 16. Keeping in forefront the aforesaid principles elucidated by the Supreme Court, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the chain of circumstances to connect the accused with the crime and to base conviction on the basis of the circumstantial evidence adduced by it. CR.A/216/2000 25/42 JUDGMENT 17. To prove the case against the accused on the basis of circumstantial evidence, the prosecution has pitted the following circumstances against the accused: (i) On 5.10.1998 at 2 P.M., A-1 came to the field of the deceased and taken him with him. Thereafter the deceased was not seen alive and found in dead condition and his dead body was thrown in the bore which was found on the next day and that too on the basis of the information supplied by A-1, of course, when he was brought by the police under Japta at the place of the incident. (ii)P.W.2, Vinaben Bakabhai Vaghari, Ex.14 and one Manjulaben had seen A-1 on 5.10.1998 at 2/2.30 P.M. At that time A-1 was put on pant but was not having a shirt. He was found at the edge of agricultural farm of P.W.9, Maganbhai Harjibhai Chaudhari and they have also heard crying voice of somebody and at that time A-1 told them to go from there; CR.A/216/2000 26/42 JUDGMENT (iii) The conduct of A-1 was that he was not found