CR.A/238/1991 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 238 of 1991 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 ? ========================================================= RAJUBHAI SHANKERBHAI WAGHELA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS AMEE YAJNIK for Appellant(s) : 1, MR HL JANI, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 22/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. The present appeal is preferred by the appellant convict [original CR.A/238/1991 2/39 JUDGMENT accused] [hereafter to be referred to as “the accused”] under Section 374 read with Section 386 of Code of Criminal Procedure challenging the judgment and order of conviction dated 19.2.1991 rendered by the Additional Sessions Judge, Nadiad in Sessions Case No. 75 of 1990, whereby the appellant was held guilty of the charge of offences punishable under Section 302 of I.P.C. The learned trial Judge convicted the appellant­accused and sentenced him to life imprisonment and to pay fine of Rs. 5,000/­ and in default of payment of fine, sentenced him to undergo simple imprisonment of six months. The judgment is challenged on various grounds mentioned in para­5 of the memo of the appeal. Mr. Nitin Amin, learned counsel appearing on behalf of Ms. Amee Yajnik for the appellant has taken us through various grounds of challenge and has submitted that the order of conviction and sentence is not sustainable, more particularly, in the background of the facts and circumstances emerging from the evidence led by the prosecution, and has submitted that the conviction being unwarranted, the accused deserves acquittal. 2. It would be appropriate to state facts alleged by the prosecution leading to initiation of trial of Sessions Case No. 75 of 1990. According to the prosecution, Jayantibhai, real brother of PW 3 Kanu Parsottambhai was murdered. P.W. 3 Kanu and deceased CR.A/238/1991 3/39 JUDGMENT Jayanti had four more brothers and thus, they were total six brothers. Bachubhai is the eldest. Deceased Jayantibhai was younger to Bachubhai. Ramesh was younger to deceased Jayanti, fourth brother was Kanubhai himself, firth brother was Ashokbhai and the sixth brother was Rohitbhai. Deceased Jayanti and Kanu [P.W.3 ] were serving with transport businessman Mohammedali, resident of Vaso of District Kheda. They were working as driver and cleaner. Jayanti was driver of truck no. GRG 7305 and Kanu [P.W.3] was cleaner. One Babusing was another driver in the transport company of Mohammedali. According to prosecution, Kanu [P.W.3] had married to Minaben, real sister of appellant­ accused. One another sister of accused, namely, Kokila was married with Ramesh, elder brother of Kanu [P.W.3]. It is alleged that on account of a discord, Mina, wife of Ramesh was residing with Kanu [P.W.3]. So, two sisters, namely, Mina and Kokila were staying with Kanu [P.W.3] and these relations, as alleged by the prosecution were accepted by both the families including elder brother of Kanu [P.W.3], wife of Kanu and Ramesh. On the date of the incident, both, i.e. wife of Kanu [P.W.3] and wife of Ramesh were at Anand at their parental place, i.e. at the residence of the accused. Wife of the accused is originally resident of town Vaso and accused had been to his in­laws' home Vaso three days CR.A/238/1991 4/39 JUDGMENT prior to the incident in question. As per the prosecution, Kanu [P.W.3] being brother­in­law of accused had told the accused that he and the deceased Jayanti were to go to Jamnagar with a truck and the accused Rajubhai, if wished, could accompany them and may join them. The accused Rajubhai thereafter joined them and accompanied them to Jamnagar on 22nd November, 1989. All of them, i.e. accused Raju, Kanu [P.W.3], deceased Jayanti and another driver Babusing had come back from Jamnagar after loading Soda Ash in their truck in the early hours at about 5.00 a.m. in the morning and had taken snacks at Vaso. Initially, truck was to be taken to Nadiad as the same required repairing. It is the case of the prosecution that the truck was to proceed to Dhuliya [Maharashtra] and Kanu [P.W.3] had asked the accused that whether he wanted to join them further or wanted to stay at Vaso at his in laws' home as his wife was there at her parental home. To the query of Kanu [P.W.3], the accused had told Kanu that he would join them as he wanted to go to Anand so that he can drop down at Anand. Therefore, accused, Kanu [P.W.3], deceased Jayanti and driver Babusing had left for Nadiad at about 8.00 a.m. In the morning, they had met Mohammedali, their Sheth [boss] near Dabhan village near Nadiad, where Mohammedali instructed them to take the truck to Nadiad for necessary repairs. The truck CR.A/238/1991 5/39 JUDGMENT was then taken to Nadiad at about 3.00 p.m. and after getting the truck repaired, they had left for Dhulia. It is alleged that at about 4.00 p.m. On that very day, i.e. on 22nd November, 1989, the truck reached at Samarkha Chokdi where the deceased Jayanti had stopped the truck. At that time, accused Raju had told the deceased Jayanti to have cigarette smoking. Babusing and Kanu [P.W.3] had remained with the truck. Deceased Jayanti and accused went to have pleasure of smoking. It is further alleged that after having smoking, they were returning towards the truck and at that time, accused Raju had given knife blows to deceased Jayanti and done him to death. It is also the case of the prosecution that Kanu [P.W.3] had tried to save his brother, but the accused, with open knife had run after him and therefore, Kanu had run away and after taking a lift on a scooter, had reached Baroda. The scooterist dropped him near Baroda Railway Station, from where Kanu boarded a train for Nadiad. Thereafter, he reached his town Vaso in a truck and informed the family members about the incident. 3. The allegation of the prosecution is that in the meanwhile, Babusing had reached to Mohammedali, his Sheth [boss] and informed him about the incident and they had reached at the place of the incident. Before the arrival of Mohammedali and Babusing CR.A/238/1991 6/39 JUDGMENT on the spot of the incident, Iqbal, brother of Mohammedali had already reached at the place of incident and he had also attempted to inform his brother Mohammedali about the incident. Before Mohammedali, Babusing and others reached at the spot of incident, Police Patel of village Gamdi had seen the dead body of the deceased Jayanti lying some feet away from the National Highway No.8 at Samarkha Chokdi and he informed the police about the dead body lying there. He also informed that a man was murdered. Therefore, the police recorded a complaint of Police Patel Ramesh Shana at about 18.15 hrs. The police had started investigation on the strength of the complaint given by Ramesh Shana. When Mohammedali and Babusing reached at the place of incident, police was present there. The police investigated the crime and ultimately found that the accused had killed the deceased Jayanti. It is pleaded by the prosecution that the accused was under a belief that matrimonial life of his two sisters was spoiled by this deceased Jayanti. Therefore, he took the deceased to have pleasure of cigarette smoking and assaulted him with knife and killed him. 4. Learned trial Judge after appreciating the oral as well as documentary evidence led during the course of trial by the prosecution held that the prosecution had satisfactorily established CR.A/238/1991 7/39 JUDGMENT the guilt of the accused beyond doubt and therefore, he was required to be convicted and was accordingly convicted. 5. It is submitted by Mr. Nitin Amin that the learned trial Judge committed grave error in appreciating the evidence available on record and that the finding recorded by him is based on conjectures and surmises. Finding of guilt is based mainly on assumptions and presumptions and the learned trial Judge ought not to have drawn such assumptions and presumptions in view of the availability of the evidence and nature of facts and circumstances emerging from the evidence. 6. Prosecution has examined 9 witnesses. However, conviction is based mainly on the oral evidence of Kanu[P.W.3] who was posed as eye witness and Mohammedali [P.W.4] with whom deceased Jayanti and Kanu[P.W.3] were serving. Learned trial Judge has accepted the facts stated by Kanu [P.W.3] in his deposition before the court and the learned trial Judge has held that deposition of Mohammedali [P.W.4] corroborates the version of eye witness Kanu [P.W.3]. It is believed by the trial Judge that Kanu [P.W.3] had unfolded true story before Mohammedali [P.W.4] and therefore, there is no reason to disbelieve Mohammedali [P.W.4] as important witness and competent to corroborate the version of the eye witness. The learned trial Judge has also considered the CR.A/238/1991 8/39 JUDGMENT report of the F.S.L. tendered in the evidence by Investigating Officer [P.W.9] Fatesinh Khant. The report shows that clothes recovered from the body of the accused were stained with blood and that blood is of the blood group of the deceased. Learned trial Judge has also considered the conduct of the accused of surrendering to the police station with muddamal knife used in commission of offence, but the backbone of the submission of Mr. Amin is that the learned trial Judge has grossly erred in accepting the version of Kanu [P.W.3] as eye witness and material improvement made by this witness, and contradictions that have emerged during the course of the cross­examination have been ignored while accepting the version of Kanu [P.W.3] as trustworthy witness. It is also submitted that there is no consistency in the version of Kanu [P.W.3] and Mohammedali [P.W.4] whose version has been accepted as reliable version and reliable piece of evidence and capable of corroborating the testimony of Kanu [P.W.3]. On the contrary, if the evidence of this two witnesses is closely scanned, it emerges that these two witnesses have attempted to put curtain on certain material facts and other circumstances and therefore, conviction ought not to have been based on the version of these two witnesses. If the evidence of Kanu [P.W.3] is excluded saying that the same is not CR.A/238/1991 9/39 JUDGMENT reliable piece of evidence, then, the evidence of Mohammedali [P.W.4] loses its significance and therefore, it ought to have been held that the evidence of these two witnesses does not appear to be sufficient to link the accused with the crime. The panchas have not supported so far as the panchnama drawn by the police at the time of alleged surrender of the accused in the police station is concerned. This story placed by the prosecution appears to be highly improbable. On the contrary, it is more probable that the accused must have been arrested from his residence or as a suspect only from the residence of his in­laws because of the relations of Kanu [P.W.3] with 2 sisters of the accused. The case of the prosecution is mainly that on the date of the incident, both the sisters were at their parental home, i.e. at the residence of the accused and either Kanu [P.W.3] or police may have suspected the accused for murder of deceased Jayanti. But this suspicion ought not to have been equated with the proof. 7. As submitted by Mr. Amin, the conduct of the accused is relevant and can be considered by the Court while evaluating the circumstances emerging from the evidence and such conduct can also be considered as corroborative circumstance to the story placed by the prosecution. But it was not safe for the learned trial Judge to place reliance on the version of the Police Inspector CR.A/238/1991 10/39 JUDGMENT Fatesinh Sahebsinh [P.W.9] or any other witness that accused had surrendered before the police station voluntarily and that too with muddamal knife. In absence of independent evidence, this conduct of the accused of going to police station appears to be highly improbable. Somebody from the residence of the accused or his neighbour or family member could have been examined to support the say of the prosecution that the accused was not available on the night of the incident as stated by the police witness. It appears that no such panchnama as to absence of accused at his residence was drawn. Therefore, it would not be save to draw an inference that accused had remained absconding during the whole night and had then surrendered before the police station with blood stained knife. It is submitted by Mr. Amin that blood sample of the accused was not drawn, quantity of blood allegedly found on the clothes of the accused was also not narrated specifically in the panchnama of arrest of the accused nor the police officer has stated anything in this regard. Therefore, for the sake of argument, even if it is accepted that the clothes of the accused were stained with blood and that human blood was of the same group of that of the deceased, even then, that circumstance by itself could not have been accepted as sufficient evidence to link the accused with the crime. In absence of group of blood of the accused, such CR.A/238/1991 11/39 JUDGMENT inference, when panchas have not supported the case of the prosecution, ought not to have been drawn. Thus, Mr. Amin, in nutshell, has stated that ; [i] Considering the conduct of Kanu [P.W.3], he ought not to have been accepted as eye witness of the incident and/or reliable evidence to link the accused with the crime; [ii] Having regard to the conflict in the evidence and the facts emerging from the record, evidence of Mohammedali ought not to have been accepted as cogent or convincing piece of evidence which can be used as reliable piece of evidence for linking the accused with the crime. [iii] Non­examination of Babusingh would go to the root of the order of conviction. He is independent person and considering the blood relations between the eye witness Kanu [P.W.3] and deceased Jayanti, non­examination of this witness Babusingh ought to have been considered appropriately and the case of the prosecution was required to be thrown out on this sole ground or at least, the Court itself could have examined Babusingh if prosecution was not inclined to examine him as as witness. [iv] There is no satisfactory evidence on record to show that accused had ever accompanied deceased Jayanti, Kanu CR.A/238/1991 12/39 JUDGMENT [P.W.3] and Babusingh when they visited Jamnagar. [v] For the sake of argument even if it is accepted that the accused had boarded the truck along with the driver of the truck from Vaso, then also, case of the prosecution is that the accused himself had never insisted to board the truck. On the contrary, he was invited to board the truck, not only that, but to accompany them. He was on the contrary, told that the truck was proceeding towards Dhuliya and if the accused intended to go with them, he could even accompany the said prosecution witnesses. At that time, the response given by the accused, on the contrary, appeared to be very natural. Undisputedly, place of residence of the accused is Anand and therefore, to reach Anand, he was supposed to drop down at Samarkha Chokdi. So, getting down from truck at Samarkha Chokdi by itself is not guilty conduct. [vi] Conduct of eye witness Kanu [P.W.3], even if really he was an eye witness, is highly unnatural and he has not disclosed the incident at the earliest available opportunity for several hours. This makes the story unfolded by the prosecution as unreliable. In absence of independent evidence in reference to alleged surrender of the accused to the police station, CR.A/238/1991 13/39 JUDGMENT evidence of Investigating Officer ought not to have been accepted as gospel truth and the learned trial Judge ought to have sought some corroboration for accepting the evidence of the Investigating Officer in this regard. [vii] Even the facts emerging from the postmortem note and the evidence given by the doctor [P.W.1] makes the time of death doubtful. [viii] Hostility of witness Iqbal, real brother of Mohammedali [P.W.4] adversely affects the case of the prosecution, more particularly, the evidence of Mohammedli. If the evidence of this hostile witness is read in reference to context of Mohammedali, then, it is possible to infer that prosecution witnesses have tried to suppress some facts and therefore only, both these witnesses have not stated anything trustworthy about the incident and also about Babusing who, as per the case of the prosecution, was present in the very truck which deceased Jayanti was perhaps driving at the relevant point of time, that is, prior to the incident. It is very likely that such truck was to travel for some more kilometers and looking to the possibility of overnight journey, owner of the truck may have provided second driver. The facts show that the truck was loaded with Soda CR.A/238/1991 14/39 JUDGMENT Ash. When the case of the prosecution is that this loaded truck was repaired at Nadiad, then, sending second driver in the truck appears to be more probable. If Kanu [P.W.3] had really gone to Jamnagar from where the truck was loaded with Soda Ash so as to deliver it at Dhuliya, this Kanu [P.W.3] may have discontinued his journey at village Vaso and second driver Babusing may have joined the journey with deceased Jayanti, because, it is the evidence of the prosecution that the truck had reached Vaso in early morning at about 5.00 a.m on the date of the incident and after taking some snacks, they had left village Vaso at about 9.00 a.m. In this situation, dropping of Kanu [P.W.3] at Vaso and entry of Babusing as second driver appears to be more probable and this is inferable on the strength of the contradictions that have emerged from the evidence of Kanu [P.W.3] and his conduct after the alleged incident where his real brother was killed. [ix] Evidence of motive placed by the prosecution is not useful at all, because, deceased Jayanti was never party in the matrimonial relations of two sisters of the accused. The accused, if had any problem, then, it must be either with husband of Mina or Kanu [P.W.3] who was keeping two CR.A/238/1991 15/39 JUDGMENT sisters with him. For short, according to Mr.Amin, the conviction based on inadequate evidence deserves to be reversed and the accused may be acquitted. 8. Mr. H.L. Jani, learned Addl. PP, while resisting the submissions of Mr. Amin has submitted that the learned trial Judge has thoroughly discussed the evidence of Kanu [P.W.3] and Mohammedali [P.W.4] and has also assigned reasons that why these two witnesses should be believed and have been believed. That the learned trial Judge was not wrong in assuming that cleaner must be in the company of the driver when the truck was proceeding on a long journey. There is no cross­examination worth the name as to employment of Kanu [P.W.3] as cleaner on the very truck before they proceeded for Dhuliya. For the sake of argument even if it is accepted that there is no evidence on record to show that the accused had also accompanied deceased Jayanti and Kanu [P.W.3] when they had been to Jamnager, even then, the case of the prosecution would remain unaffected. The prosecution case is not in reference to the journey of this group of persons to Jamnagar. The prosecution was supposed to establish one fact that the accused was in the truck and he had dropped down from the truck at Samarkha Chokdi. Driver Jayanti had accompanied him at the request of the accused and the accused CR.A/238/1991 16/39 JUDGMENT was last in the company of the deceased who was found dead ultimately after some hours. It was possible for the learned trial Judge to observe that the accused was supposed to explain his position after the incident, because, police officer has stated in his deposition that the accused was not available at his residence though he had left Vaso to reach Anand at his residence. True it is that Nil panchnama has not been drawn by the police about the non­availability of the accused at his residence on the night of the date of the incident. But the Court can safely place reliance on the evidence of the police officer if the same is found reliable. Merely because a person is a police officer, his oral version before the Court should not be viewed with shadow of doubt. The learned trial Judge has also noticed that over and above the evidence of these two witnesses who have proved that the accused was in the truck which was proceeding towards Dhuliya and driver of that very truck is found murdered by the owner of the truck, then, owner would always inquire that as to what had happened to that unknown person who was in the company of his driver Jayanti and his cleaner Kanu [P.W.3]. It is in the evidence that once all the three, i.e. Babusing, Mohammedali and Kanu were there at village Vaso and from there, they had proceeded towards the place of incident where they found policemen and process of drawing CR.A/238/1991 17/39 JUDGMENT panchnama of the scene of offence was going on. Mohammedali [P.W.4] has been rightly believed by the learned trial court that Kanu [P.W.3] must have been told that how his brother Jayanti was killed and and why his Sheth [boss] should accompany him to the place of incident. True it is that the statement of Kanu [P.W.3] has been recorded late whereas the same could have been recorded immediately on the spot of the incident on arrival of Kanu [P.W.3]. But that would not make evidence of Kanu[P.W.3] doubtful, because, the conviction is not based only on the evidence of Kanu. The learned trial Judge has used his wisdom in seeking strong corroboration and this corroboration is of the report of FSL and the version of the police officer to whom the accused himself had surrendered. This is not a case based only on circumstantial evidence, but this is a case where version of eye witness has been believed as the same is found corroborated by independent evidence of report of the FSL. For short, according to Mr. Jani, this is a fit case where the appeal should be dismissed and the order of conviction may be upheld. 9. While responding to the argument of non­examination of Babusing, say of Mr. Jani is that there were two eye witnesses and the prosecution was satisfied after examining one of them and there was no need to duplicate the evidence. When real brother of CR.A/238/1991 18/39 JUDGMENT the deceased was ready to depose before the Court who had some knowledge about the motive as to crime committed and when he is close relative of the accused being brother­in­law, he was selected as a witness which requires to be examined. Complaint in the present case is practically innocuous, because same is given by Police Patel who had seen the dead body at about 18.35 hrs. Thus, the dead body remained at the place of incident for more than two hours from the time of alleged assault. Conduct of Babusing, as pleaded by prosecution of informing his Sheth [boss] about the incident appears to be natural. Mohammedali [P.W.4] has stated about this fact and therefore, non­examination of Babusing would not affect the case of the prosecution adversely. 11.It is not necessary to