CR.A/679/2001 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 679 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================= 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 ? ========================================= KANUBHAI SHANKARBHAI NAYAK - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MS BHARTI H RANA 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 : 11/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/679/2001 2/20 JUDGMENT 1.0 This Appeal is directed against the judgment and order dated 29.07.2001 passed by the learned Addl. Sessions Judge, Vadodara in Sessions Case No. 174 of 2000 whereby, the appellant – original accused was convicted for the offences punishable u/s. 302 & 201 of the Indian Penal Code [for short, “the IPC”]. For conviction u/s. 302 IPC, the appellant was sentenced to undergo imprisonment for life with fine of Rs.500/- and in default of payment of fine, simple imprisonment for a further period of one month while for conviction u/s. 201 IPC, he was sentenced to undergo rigorous imprisonment for one year with fine of Rs.500/- and in default of payment of fine, simple imprisonment for a further period of one month. Both the sentences were ordered to run concurrently. The appellant was also given the benefit of set-off. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 On 24th – 25th January, 2000, Head Constable – Shanabhai Andarsinh Rathod, the complainant herein, was CR.A/679/2001 3/20 JUDGMENT discharging his duties at Jarod Out-Post, which falls under the jurisdiction of Vaghodiya Police Station. On 25.01.2000, at around 1030 hrs., the appellant herein came to Jarod Out-Post and informed him that during the night hours of 24th – 25th January, 2000 while he and his brother – Amarsinh Shankarbhai were discharging their duties as Watchman in the go-down of a company named World Trade Company, his brother, victim – Amarsinh Shankarbhai, had died in an accident at the work-place. 2.2 It was informed by the appellant that during the mid-night hours of 24.01.2000, when he and victim – Amarsinh Shankarbhai had prepared a bonfire, victim – Amarsinh Shankarbhai accidentally fell on the bonfire and his clothes caught fire. As a result thereof, the victim started to move hurriedly here and there, and in that process, collided with an iron-shutter on account of which the victim sustained severe injuries and became unconscious. Thereafter, the appellant rushed to their Village and informed about the said incident to the family of the victim and few other persons. At around 0100 hrs. of 25.01.2000, CR.A/679/2001 4/20 JUDGMENT they came to the place of incident. However, the victim was found to be dead. 2.3 The aforesaid information was noted down by the complainant as occurrence report No. 1 of 2000 and thereafter, the same was sent to Vaghodia Police Station wherein, it was numbered as A. D. No. 4 of 2000. Thereafter, he started necessary investigation into the matter. He went to the place of incident and prepared inquest 'panchnama' in the presence of 'panchas'. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body of the deceased to Referral Hospital, Jarod for performing post-mortem. ‘Panchnama’ of the place of incident was done in the presence of ‘panchas’ and necessary ‘muddamal’ articles were collected. 2.4 In the meanwhile, he received a Report from Referral Hospital, Jarod that the deceased had died a homicidal death and that the cause of death has been shown to be respiratory asphyxia caused due to throttling. Statements of several witnesses were recorded. The clothes CR.A/679/2001 5/20 JUDGMENT worn by the deceased at the time of the incident in question were also seized. During the course of investigation, as cogent evidence was found against the appellant, the Investigating Officer filed a complaint against the appellant, which came to be registered as I – C. R. No. 15 of 2000 under Sections 302 & 201 of IPC. 2.5 From 26.01.2000 investigation into the alleged offence was taken over by P.S.I. - Narayanbhai Someshwarbhai Trivedi of Vaghodiya Police Station. On 27.01.2000 the appellant came to be arrested. Arrest ‘panchnama’ was prepared in the presence of 'panchas'. A 'panchnama' with regard to the physical condition of the appellant was also prepared and he was sent for medical examination. During the course of interrogation, the appellant showed willingness to produce the 'muddamal' weapon used in the commission of the alleged offence in question and therefore, the same was recovered by way of a separate 'panchnama' in the presence of 'panchas'. After completing necessary formalities, the appellant was sent to judicial custody. The ‘muddamal’ articles so collected were CR.A/679/2001 6/20 JUDGMENT sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other reports, they were kept in the investigation file. 2.6 Statements of several other witnesses were also recorded. On completion of investigation, charge-sheet was filed against the appellant in the Court of learned Judicial Magistrate, First Class, Vaghodiya. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Vaghodiya committed the case to the District & Sessions Court, Vadodara and the same was numbered as Sessions Case No. 174 of 2000. As the appellant pleaded not guilty to the said charge, trial was initiated. 3.0 The prove the guilt against the appellant, the prosecution has examined in all nineteen witnesses, namely, PW – 1 Shanabhai Andarsinh Rathod at Exhibit – 9 is the complainant, PW – 2 Jaswantbhai Bhagwandas Patel at Exhibit – 16 is a resident of the same Village and also a co- worker, PW – 3 Maniben Amarsinh Nayak at Exhibit – 13 is CR.A/679/2001 7/20 JUDGMENT the wife of the deceased and who has been declared hostile, PW – 4 Arvindbhai Amarsinh Nayak at Exhibit – 18 is the son of the deceased and who has been declared hostile, PW – 5 Shanabhai Magabhai at Exhibit – 19 is a relative of the deceased and who has also been declared hostile, PW – 6 Raisinhbhai Dhulabhai at Exhibit – 20 is a neighbour of the deceased and who has also been declared hostile, PW – 7 Jagdish Govindlal Shah at Exhibit – 21 is a shop-keer, PW – 8 Mohmadyusuf Mithabhai Makrani at Exhibit – 22 is a 'panch' witness of the 'panchnama' of the scene of offence, PW – 9 Sarfarazali Munsafali Makrani at Exhibit – 23 is a 'panch' witness of the 'panchnama' of the house of the deceased, PW – 10 Mehboobkhan Mubibkhan Pathan at Exhibit – 26 is a 'panch' witness of the discovery 'panchnama', PW – 11 Rajendrabhai Amrutlal Gajjar at Exhibit – 28 is the Medical Officer who performed the post- mortem, PW – 12 Kothiya Fatehsinh Raisinh at Exhibit – 34 is the Circle Inspector, PW – 13 Ramanbhai Ramsinhbhai Bariya at Exhibit – 38 is the 'panch' witness who has been declared hostile, PW – 14 Lakshmanbhai @ Lakhu Sadhumal Sindhi at Exhibit – 40 is the 'panch' witness, PW CR.A/679/2001 8/20 JUDGMENT – 15 Ramabhai Mohanbhai Harijan at Exhibit – 81 is the 'panch' of the inquest 'panchnama', PW – 16 Chatrasinh Himmatsinh Chavda at Exhibit – 42 is the 'panch' witness of 'panchnama' regarding seizure of clothes of deceased, PW – 17 Dalpatsinh Himmatsinh Makwana at Exhibit – 46 is the Police Constable who collected the clothes of the deceased, PW – 18 Mansukhlal Ramjibhai at Exhibit – 47 is the Police Inspector / Investigating Officer and PW – 19 Narayanbhai Someshwarbhai Trivedi at Exhibit – 48 is the Police Inspector / Investigating Officer. 3.1 The prosecution had also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 12, inquest ‘panchnama’ at Exhibit – 10, the ‘panchnama’ of the scene of offence at Exhibit – 11, the ‘panchnama’ regarding seizure of clothes of the deceased at Exhibit – 13, the 'panchnama' of the house of the deceased at Exhibit – 24, the 'panchnama' of the physical condition of the accused at Exhibit – 25, the 'panchnama' regarding seizure of blanket, shawl and wood CR.A/679/2001 9/20 JUDGMENT from PW – 8 at Exhibit – 27, the 'panchnama' of the place from where the weapon – wood used in the commission of the alleged offence at Exhibit – 39, the 'yaadi' sent by P.S.O., Vaghodiya Police Station at Exhibit – 49, the copy of the letter written by Head Constable of Jarod Out-Post to Executive Magistrate at Exhibit – 14, the copy of the letter sent by the Investigating Officer to Jarod Referral Hospital for performing post-mortem at Exhibit – 15, the 'yaadi' regarding handing over of the dead body of the deceased to his relatives at Exhibit – 46, the copy of the Receipt regarding custody of the dead body as well as the clothes on the dead body of the deceased at Exhibit – 45, the copy of the Receipt regarding handing over of the dead body to PW – 8 at Exhibit – 44, the Medical Certificate issued by Medical Officer, Jarod at Exhibit – 30, the PM Report at Exhibit – 29, the 'yaadi' written by P.S.I. to the F.S.L. at Exhibit – 50, the 'yaadi' for carrying out map of the scene of offence at Exhibit – 35, the Map of the scene of offence at Exhibit – 37, the 'yaadi' written by Circle Inspector to the Medical Officer, Jarod at Exhibit – 32, the 'yaadi' sent by Medical Officer on regarding his opinion with respect to the medical CR.A/679/2001 10/20 JUDGMENT examination of the accused at Exhibit – 33, the 'yaadi' sent by the I.O. to the F.S.L. regarding furnishing the F.S.L. Report at Exhibit – 51, the forwarding letter of F.S.L. at Exhibit – 52 and the Receipt issued by the P.S.I. to the F.S.L. regarding custody of 'muddamal' articles at Exhibit – 53. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order convicting the appellant for the offences as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Ms. Bharti H. Rana learned Advocate for the appellant has submitted that the deceased died as a result of an accidental and that he was not murdered, as has been brought out by the prosecution. She has submitted that at the relevant point of time, the deceased accidentally fell into a bonfire, which the appellant and the deceased had jointly CR.A/679/2001 11/20 JUDGMENT lit-up, and on account of the resultant sensitivity, the victim began to run haphazardly, during which process, the victim collided with an iron-door and sustained the injuries in question. Consequently, he succumbed to the injuries. In such circumstances, the appellant could not be held guilty for the offence of 'murder' since the death has been caused by an accident. 4.1 Learned Advocate has further submitted that the entire case of the prosecution rests upon circumstantial evidence and that the prosecution has not been able to prove the chain of circumstances so as to connect the appellant with the crime in question. She has submitted that except the fact that the appellant and the deceased were in the company of each other, at the relevant point of time, there is no other evidence on record to connect the appellant with the alleged offence in question. Hence, the benefit of doubt is required to be given to the appellant. 4.2 Learned Advocate has further submitted that a majority of the prosecution witnesses have not supported CR.A/679/2001 12/20 JUDGMENT the case of the prosecution. She has, therefore, submitted that in absence of any cogent evidence on record to connect the appellant with the alleged offence, the appellant deserves to be acquitted by granting him the benefit of doubt. 5.0 Mr. H. L. Jani learned APP has submitted that the prosecution has been able to prove the aspect of “last seen together” and that the evidence to that effect, which is on record of this Court, is trustworthy and reliable. He has further submitted that the documentary evidence on record in the form of discovery 'panchnama' at Exhibit – 39, the F.S.L. Report at Exhibit – 56, the Post-mortem Report at Exhibit – 29, etc. clearly establish the guilt of the appellant. He has, therefore, submitted that the prosecution has been able to prove the chain of circumstances pointing towards the guilt of the appellant beyond doubt. 5.1 Learned APP has further submitted that so far as the aspect of motive is concerned, the prosecution has also been able to prove the same inasmuch as from the evidence CR.A/679/2001 13/20 JUDGMENT on record, it is established that the appellant was having an illicit relationship with the wife of the victim. Therefore, the prosecution has also been able to prove the aspect of motive which is an essential ingredient in cases pertaining to circumstantial evidence. Hence, the Court below was completely justified in convicting the appellant for the alleged offence in question and no interference is required from this Court in this Appeal. 6.0 We have gone through the oral as well as documentary evidence as shown to us by learned counsel for the respective parties as also the impugned judgment and order passed by the Court below. Looking to the peculiar facts of the case, it would be beneficial to high-light certain material aspects, which are undisputed and which shall have considerable bearing on the merits of the case. The appellant and deceased are brothers and at the time when the alleged incident in question took place, the appellant was residing along with the family of the victim, consisting of his wife and four children, under one roof. Both the appellant and the deceased were earning their CR.A/679/2001 14/20 JUDGMENT livelihood by serving as 'Watchman' in a closed go-down situated in their Village. The alleged incident in question took place during the mid-night hours of 24th - 25th January, 2000, and evidently, at a time when both the appellant and the deceased were discharging their duties at the go-down in question as 'Watchman'. 6.1 The main contention raised by the appellant is that the deceased died an accidental death and that he was not murdered. Admittedly, there are no eye-witness to the alleged incident in question. In such circumstance, to hold the appellant guilty for the alleged offence in question, the prosecution has to prove two aspects ; first, the deceased died a homicidal death and second, the evidence on record establish the guilt of the appellant beyond doubt. 6.2 So as to prove the aspect of homicidal death, the prosecution has relied upon the medical evidence on record in the form of deposition of the Medical Officer – Dr. Rajendrabhai Amrutlal Gajjar [PW – 11 at Exhibit – 28] and the Post-mortem Report of the deceased at Exhibit – 29. The CR.A/679/2001 15/20 JUDGMENT Post-mortem Report states the cause of death as “respiratory asphyxia causing anoxia of brain due to throttling”. The Medical Officer, who has performed the Post- mortem of the deceased, has been examined as PW – 11 at Exhibit – 28. From his evidence, it has come out that the deceased died on account of strangulation. The said Medical Officer has also opined that a number of injuries, other than the burn injuries, sustained by the deceased were ante- mortem. Looking to the aforesaid medical evidence on record, it is amply clear that the deceased died a homicidal death. Therefore, the contention raised by the learned Advocate for the appellant that the deceased died an accidental death is devoid of any merits and is rejected. Accordingly, we hold that the deceased died a homicidal death. 6.3 The document at Exhibit – 33 is the Medical Report given by the Medical Officer – Dr. Rajendrabhai Amrutlal Gajjar [PW – 11 at Exhibit – 28], apropos the communication dated 27.01.2000, written by the Senior Police Inspector, Vaghodiya Police Station regarding the CR.A/679/2001 16/20 JUDGMENT medical examination of the appellant after his arrest. In the said Report, the Medical Officer has categorically opined that the appellant had sustained injury on the upper portion of the right-hand side of the abdomen, which might have been caused on account of some scuffle. He has also opined that the said injuries were about 60 – 72 hours old. The said facts have also been stated by the Medical Officer in his examination-in-chief before the Court below. Thus, from the document at Exhibit – 33, it is established that the appellant had sustained injuries in some scuffle that had taken place about 60 – 72 hours prior to his medical examination. 7.0 The 'muddamal' weapon – wooden log, alleged to have been used in the commission of the offence in question, has been recovered by way of discovery 'panchnama' at Exhibit – 39. Both the 'panch' witnesses have not supported the case of the prosecution. The said 'muddamal' weapon was also sent to the F.S.L. for examination along with other 'muddamal' articles. The Report of the F.S.L. is at Exhibit – 56. On a perusal of the CR.A/679/2001 17/20 JUDGMENT said Report, it is evident that human blood stains were found on the blanket, partly-consumed 'bidi' pieces, weapon – wooden log, clothes of the deceased, clothes of the appellant wore by him at the time of the alleged incident in question, etc,. Human blood stains were also found on the nails of the appellant. All the aforesaid articles / items, seized by way of 'muddamal' articles, contained human blood stains belonging to Blood Group 'A', which is that of the deceased. Thus, the F.S.L. Report at Exhibit – 56 clearly establish the guilt of the appellant 8.0 It is a matter of record that a majority of the witnesses have not supported the case of the prosecution. The Police Head Constable – Shanabhai Andarsinh Rathod, who is also the complainant in this case, has been examined as PW – 1 at Exhibit – 9. From his evidence, an important fact which has come out is that the appellant was having illicit relationship with the wife of the victim – Maniben Amarsinh Nayak [PW – 3 at Exhibit – 17]. This witness has been cross-examined at length before the Court below. However, nothing incriminating has come out from his CR.A/679/2001 18/20 JUDGMENT cross-examination, which may lead us to believe his evidence to be untrue or unreliable. 9.0 At this juncture, it would be pertinent to note that PW – 2 Jaswantbhai Bhagwandas Patel at Exhibit – 16, who is a resident of the same Village and was also a co-worker of the appellant as well as the deceased about three to four years prior to the date of the alleged incident in question, has deposed about the aspect of alleged illicit relationship between the appellant and the wife of the victim. Except the aforesaid evidence, the deposition of this witness shall not be of any other help to the case of the prosecution. This witness has also been cross-examined at length before the Court below. However, nothing incriminating has come out from his cross-examination, which may lead us to believe his evidence to be untrue or unreliable. 10.0 From the evidence led by the aforesaid two witness, viz. – PW – 1 Shanabhai Andarsinh Rathod at Exhibit – 9 and PW – 2 Jaswantbhai Bhagwandas Patel at Exhibit – 16, it is established that there existed some illicit CR.A/679/2001 19/20 JUDGMENT relationship between the appellant and the wife of the victim [PW – 3] and the said fact must have prompted the appellant to kill the deceased, by plotting an episode of accidental death. Thus, it has to be said that there was motive behind committing the alleged offence in question and the prosecution has been able to establish the same beyond doubt. 11.0 The wife of the victim – Maniben Amarsinh Nayak [PW – 3 at Exhibit – 17] and the son – Arvindbhai Amarsinh Nayak [PW – 4 at Exhibit – 18] have not supported the case of the prosecution and have been declared 'hostile' by the Court below. Hence, we are not discussing the evidence led by them in detail. 12.0 From the evidence discussed herein above, viz. the depositions of PW – 1 Shanabhai Andarsinh Rathod at Exhibit – 9, PW – 2 Jaswantbhai Bhagwandas Patel at Exhibit – 16 and PW – 11 Dr. Rajendrabhai Amrutlal Gajjar at Exhibit – 28 and documentary evidence in the form of Post- mortem Report at Exhibit – 29, the Medical Report of the CR.A/679/2001 20/20 JUDGMENT appellant at Exhibit – 33 and the F.S.L. Report at Exhibit – 56, the guilt of the appellant is established beyond doubt. In our opinion, the prosecution has succeeded in proving the involvement of the appellant in the alleged offence in question beyond doubt as also the chain of events. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below and hence, find no reasons to interfere in this Appeal. 13.0 For the foregoing reasons, the Appeal is dismissed. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*