CR.A/5920/2002 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 59 of 2002 With CRIMINAL APPEAL No. 62 of 2002 With CRIMINAL APPEAL No. 63 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ====================================== 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 ? ====================================== MAHESHBHAI JESINGBHAI RABARI Versus STATE OF GUJARAT ====================================== Appearance : Criminal Appeal No.59 of 2002: Mr Yogesh Lakhani for the Appellant Mr Mukesh Patel, Additional Public Prosecutor for the State Criminal Appeal No.62 of 2002: Mr T.S.Nanavati for the Appellant Mr Mukesh Patel, Additional Public Prosecutor for the State CR.A/5920/2002 2/5 JUDGMENT Criminal Appeal No.63 of 2002: Mr Ramnandan Singh for the Appellant Mr Mukesh Patel, Additional Public Prosecutor for the State ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 27/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present group of appeals has been filed by the appellants – original accused challenging judgment and order dated 19th November 2001 passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No.306 of 2000. Heard the learned counsel for the parties. In the present case four accused persons have been convicted by the learned Additional Sessions Judge, Vadodara and they have been imposed sentence as under:- (1)All the appellants – accused have been convicted under Section 302 read with Section 114 of IPC and have been ordered to undergo life imprisonment with a fine of of Rs.10,000/-, in default to further undergo RI for one year. (2)All the appellants – accused have been convicted under Section 364 read with Section 114 of the IPC and have been ordered to undergo 10 years' RI with a fine of of Rs.10,000/-, in default to further undergo SI for one year. (3)All the appellants – accused have been convicted under Section 201 read with Section 114 of the IPC and have been ordered to undergo three years' RI. CR.A/5920/2002 3/5 JUDGMENT The case rests on circumstantial evidence. There is no direct evident and that the circumstances which are said to be occurring in the case against accused Nos.2, 3 and 4 are that they are last seen together with the deceased. Against these accused there is no other circumstances indicated by the prosecution except the circumstance that they were last seen with the deceased in a vehicle. Apart from these circumstances, the other circumstances are pressed against accused No.1, namely, (1) dead body was discovered at his instance, (2) a weapon, a dharia, was recovered at his instance, which has bloodstains of human origin of Group-B, and (3) his clothes were found to be stained with blood. Learned counsel for the appellant urged that the chain of circumstances as against accused appellants Nos.2, 3 and 4 is concerned is not available for the simple reason that they were last seen together with the deceased on 19th September 2000. The exact date of death is a doubtful proposition because, the post mortem was conducted on 22nd September 2000 and according to the medical evidence the date of death could travel beyond a week from the date of post mortem. Thus, in all probability, it was not on 19th September 2000, only 3 days prior to post mortem and therefore it cannot be said that the circumstance of last seen together can be pressed against accused persons, that too with vehemence. The learned counsel further presses that since the body was totally unidentifiable and according to the prosecution case the date of death was prior to 19th September 2000, in those circumstances, the recovery of dead body at the instance of accused No.1 becomes doubtful to suggest that this was the dead body of the deceased. The question of identification of dead body assumes significance because, none of the family members who are near relatives of the deceased have come forward to identify the body. However, a distant relation has identified CR.A/5920/2002 4/5 JUDGMENT the dead body, which was only wearing a short. The reason of identification of dead body is not clothes. The body was highly decomposed. When the body is decomposed and the medical evidence is clear and positive that the identification of the deceased is a distant possibility, then, non-identification of the deceased by the nearest members of the family, which is not supported by any reason why the dead body was not identified by a close relative, nor any bearing on the dead body is being identified, the identification of the dead body is a doubtful proposition. The another circumstance is that bloodstains on the alleged weapon and the clothes of the accused. The blood group is stated to be “B” Group of human origin, but then learned counsel is very positive that what was the blood group of the deceased is not indicated. The control samples taken from the canal where the dead body was not recovered. The dead body was recovered from the river. Therefore, the circumstances as relied upon by the prosecution are of no consequence. Per contra, when the learned Additional Public Prosecutor was asked as to who was the person who identified the deceased he was not in a position to indicate as to who was the person who identified the dead body. He has not been able to indicate that any near relative who had reason to identify the deceased was ever asked to identify the dead body. Therefore, the identification question as pressed by the learned counsel for the appellants becomes a subject matter where prosecution stands to be discredited. A feeble attempt was made on behalf of the prosecution that in the statement of Devraj, who is not a near relation, a statement has been made by him that some relatives were present and identified the dead body, but none of these near relatives have been produced by the prosecution to identify the deceased. Thus, not only that there was no attempt to produce those witnesses to examine, but no CR.A/5920/2002 5/5 JUDGMENT serious attempt to establish the identity of the deceased. Once when identity of the dead body becomes doubtful and according to the medical evidence the dead body, which was subject to the post mortem on 22nd September 2001 could have been subjected to death on 15th September 2001 then, last seen on 19th September cannot be said to be a probable proposition as put forward by the prosecution. In that view of the matter, the circumstances as indicated by the prosecution against accused No.1 do not make out a clear chain of circumstances and as regards accused Nos.2, 3 and 4 there is hardly any circumstances except an indication that on 19th September 2001 he was seen together where the existence of the deceased was doubtful proposition. This Court feels that the prosecution has miserably failed to substantiate the circumstances which are sought to be based against the accused persons. Hence, the circumstances as indicated by the prosecution against the accused deserve to be discarded and benefit of doubt is required to be given to the accused persons. In the result, this Court feels that the prosecution has miserably failed to bring out the charges against the accused persons. The charges against the accused persons are unsubstantiated. The conviction and sentence recorded by the learned Additional Sessions Judge, Vadodara is quashed and set aside. The appellants - accused are ordered to be set at liberty forthwith if not required in any other case. Writ to be sent to the jail concerned. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) *mohd