CR.A/317/1999 1/47 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 317 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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 ? ========================================================= KANU RANCHHOD TALPADA VAGHARI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR CHIRAG M PAWAR, appointed by Legal Aid Committee for Appellant MR RC KODEKAR APP for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 24/08/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/317/1999 2/47 JUDGMENT 1. Challenge in this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 12.2.1999, rendered in Sessions Case No.175 of 1998, by the learned Additional Sessions Judge, District Kheda at Nadiad, by which the sole appellant ('the accused' for short) has been convicted for commission of the offence under Section 302 of the Indian Penal Code ('IPC' for short) and sentenced to R.I. for life and fine of Rs.2,000/- and in default of payment of fine, further R.I. for three months. 2. The prosecution case, as disclosed from the FIR and unfolded during trial, is as under: 2.1. P.W.1, Govindbhai Mohanbhai Talpada, who lodged the complaint and the accused, were residing in the neighbourhood in the area known as Malav Bhagol, Vaghari Vas of Petlad Town. Govindbhai had a love affair with Sharda, daughter of the accused, who is married. The CR.A/317/1999 3/47 JUDGMENT accused had warned him about the said relation when he came to know about it. However, Govindbhai continued the said illicit relationship with Sharda. Because of the illicit relation Govindbhai had with his daughter Sharda, the accused was very much annoyed with Govindbhai and his family and wanted to take revenge. As per further case of the prosecution, Mohanbhai Fulabhai, father of Govindbhai, and the accused were guarding the fields of Kesarising Jesingbhai Ajana and Manharbhai Kubersing Ajana during the night and at night hours the accused and Mohanbhai used to go together and sleep in a shelter erected in the field. 2.2. As per further case of the prosecution, on 25.5.1998, at about 10 P.M., the accused, in furtherance of his motive to take revenge against the complainant or any of his family members, went to call Mohanbhai at his residence and took him to the fields situated on Dharmaj Road, Petlad and thereafter, during night hours, in CR.A/317/1999 4/47 JUDGMENT between 25.5.1998 10 P.M. and 26.5.1998 at 7.00 A.M. killed Mohanbhai Fulabhai when he was asleep by cutting his throat with butcher's knife. Mohanbhai and his family members waited for the arrival of Mohanbhai in the morning but as he did not return upto 7 A.M, Govindbhai went to the field in search of his father. He saw the dead body of his father lying in a pool of blood in the field. He immediately came back and informed his mother Kashiben about the murder of his father Mohanbhai. Thereafter Govindbhai went to Petlad Town Police Station and lodged the complaint which is on record at Ex.11. The said complaint is registered by Madhavsinh Padsinh Vasava, P.I. of Petlad Town Police Station vide CR No.I-75/98 against the accused for commission of offence under Section 302 IPC. 2.3. On registration of the complaint, P.I. Madhavsinh Padsinh Vasava, held inquest on the dead body of Mohanbhai and thereafter sent the dead body for autopsy. Panchnama of the scene of CR.A/317/1999 5/47 JUDGMENT the offence was prepared, blood stained earth from the place of offence was collected, slipper, bush-shirt, etc., of the deceased were recovered. He got the place of offence photographed and also seized the muddamal knife. He recorded the statements of the witnesses and arrested the accused. On receipt of the autopsy report and report from FSL and as sufficient incriminating evidence was found against the accused for commission of the offence punishable under Section 302 IPC, the accused was charge-sheeted in the Court of learned JMFC, Petlad. 2.4. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Petlad committed the case to the Court of Sessions, District Kheda at Nadiad. 2.5. The learned Additional Sessions Judge, Nadiad, to whom the case was made over for trial against the accused, framed the charge against CR.A/317/1999 6/47 JUDGMENT the accused for commission of the offence punishable under Section 302 IPC. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried and thereupon the learned Additional Sessions Judge, Nadiad put him to trial in Sessions Case No.175 of 1998. 2.6. In order to prove the charge levelled against the accused, the prosecution has examined in all 10 witnesses and relied upon their oral testimony, the details of which have been given in paragraph 4 of the judgment which are as under: PW No Name Ex.No Page 1. Govindbhai Mohanbhai Talpada 10 37-42 2. Kesarising Jesingbhai Ajana 2 83-86 3. Maganbhai Shivabhai 24 87-88 4. Kashiben Mohanbhai 25 89-90 5. Kalpesh Pratapsing Ajana 26 91-92 6. Kuberbhai Naranbhai 31 103- 104 7. Budhabhai Madhabhai 34 109- 110 8. Bhikhabhai Ramabhai 35 111- 112 CR.A/317/1999 7/47 JUDGMENT PW No Name Ex.No Page 9. Madhavsinh Padsinh Vasava 36 113- 118 10. Dr. Dattatrey Radhakrishna Khadayte 39 127- 128 2.7. To prove the culpability of the accused, the prosecution has also produced a number of documents and relied upon the contents of the same, the details of which are mentioned in para 5 of the impugned judgment and order, which are as under: S.No. Particulars Ex.No 1. Complaint filed by Govindbhai Mohanbhai Talpada 11 2. Inquest Panchnama 12 3. Panchnama with regard to physical state of the accused 13 4. Panchnama of dead body of Mohanbhai 14 5. Extract of record of right of S.No.516 15 6. Police report for Post mortem 16 7. Post Mortem notes 17 8. Forwarding letter for sending muddamal to FSL 18 9. Receipt of FSL 19 10. Map of place of offence 20 11. Letter of FSL 21 CR.A/317/1999 8/47 JUDGMENT S.No. Particulars Ex.No 12. Photographs of dead body at the place of offence 22 13. Panchnama of place of offence 27 14. Slips sighed by panch witnesses 32 15. FSL report 37 16. Serological report from FSL 38 2.8. After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution in its entirety. He has denied the circumstances pointed out against him by the prosecution. However, he has neither offered any explanation nor did he examine any witnesses in his defence. 2.9. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court came to the conclusion that all the circumstances from which the inference of guilt CR.A/317/1999 9/47 JUDGMENT is to be drawn are cogently and firmly established and they have definite tendency unerringly pointing towards guilt of the accused and that the circumstances taken cumulatively form a chain so compete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. The circumstances are complete and incapable and explanation of any other hypothesis than that of guilt of the accused and they are inconsistent with his innocence. 2.10. On the aforesaid finding, the trial court held that the complicity of the accused of murdering Mohanbhai has been duly established and consequently the trial court has convicted the accused for commission of offence under Section 302 IPC and sentenced to RI for life and fine of Rs.2000 i.d., further RI for three months, which has given rise to instant appeal at the instance of the accused. CR.A/317/1999 10/47 JUDGMENT 3. In support of the appeal, Mr. Pawar, learned advocate appointed by the Legal Aid Committee for the accused, has contended that as per the prosecution case, the accused himself appeared before the Police station and made extra judicial confession before P.W.8, Bhikhabhai Ramabhai, PSO, Petlad Town Police Station, in presence of P.W.1, Govindbhai Mohanbhai Talpada and P.W.2, Kesarising Jesingbhai Ajana. Extra judicial confession, inherently is a weak piece of evidence and in instant case it was made before the police personnel and, therefore, it was not voluntary in nature and no reliance can be placed on the said piece of evidence. 3.1. So far as the evidence of 'last seen together' is concerned, i.e., the accused had taken deceased Mohanbhai with him on previous night, it does not get corroboration from the evidence of any independent witness. This is the evidence given by P.W.4, Kashiben Mohanbhai, who CR.A/317/1999 11/47 JUDGMENT is the widow of Mohanbhai. She is one of the near and dear relatives of the deceased and is a very interested witness in procuring conviction to the accused, and therefore, her evidence alone is not sufficient, in absence of other corroborative evidence, to establish the guilt of the accused. Therefore, according to him, the prosecution has failed to prove the charge levelled against the accused beyond reasonable doubt and a doubt is created in the prosecution case and hence the accused is entitled to get the benefit of doubt. He, therefore, submitted that the impugned judgment and order is against the evidence on record and the trial court has misdirected itself in reading the evidence of the prosecution witnesses and hence the impugned judgment and order convicting and sentencing the accused for the commission of the offence punishable under Section 302 IPC, deserves to be quashed and set aside by giving benefit of doubt and thereby acquitting the accused of the offence with which he was charged. He, therefore, urged CR.A/317/1999 12/47 JUDGMENT to allow the appeal. 4. Per contra, Mr. RC Kodekar, learned APP for the State of Gujarat, has submitted that the trial court has recorded a categorical finding about the guilt of the accused and the complicity of the accused is duly established by the prosecution on the basis of the extra-judicial confession made by the accused, last seen together, motive of the accused to commit the crime, conduct of the accused and the recovery of handkerchief of the accused stained with human AB Group blood, which is the blood group of deceased Mohanbhai, and therefore, there is no room of doubt in the prosecution case and the trial court has rightly recorded the finding with regard to the guilt of the accused. According to him, since complicity of the accused in the commission of the crime of murder of Mohanbhai is established by the prosecution beyond doubt, the impugned judgment and order convicting and sentencing the accused for commission of offence of murder of CR.A/317/1999 13/47 JUDGMENT Mohanbhai does not call for interference of this court in this appeal. He, therefore, urged to dismiss the appeal. 5. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive 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. This court has examined the entire evidence on record for itself independently of the learned Judge of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. CR.A/317/1999 14/47 JUDGMENT 6. To prove the fact that the deceased Mohanbhai died a homicidal death, the prosecution has examined P.W.10, Dr. Dattatrey Radhakrishna Khadayte, Ex.39. He was the Medical Officer, Petlad Hospital, when the dead body of Mohanbhai was brought to him with inquest report for performing autopsy. He has deposed that he performed autopsy on the dead body of Mohanbhai and prepared autopsy report which is at Ex.17. 7. A conjoint reading of the oral evidence of P.W.10, Dr. Dattatrey and the autopsy report at Ex.17, according to us, there is no manner of doubt that the deceased died a homicidal death. The trial court has also recorded a categorical finding that the deceased Mohanbhai died a homicidal death. We, therefore, confirm the said finding recorded by the trial court. 8. Having held that the deceased died a homicidal death, the next question that requires CR.A/317/1999 15/47 JUDGMENT consideration of this court is as to whether the accused was the assailant and author of the injuries caused to deceased Mohanbhai. 9. In order to establish the guilt of the accused, the prosecution has mainly relied upon the evidence in the form of extra judicial confession made by the accused, last seen together, FSL report, motive of the accused to commit the crime, conduct of the accused prior to and after the crime allegedly committed by him. 10. In this connection, we shall first advert to the deposition of P.W.1, Govindbhai Mohanbhai Talpada, Ex.10. He has deposed that he is the son of deceased Mohanbhai. In his deposition he has further stated that the accused is residing just adjoining to their house. The accused has two daughters, elder daughter is Manjulaben and the younger is Shardaben. Both of them are married. He has further deposed that he had a love affair CR.A/317/1999 16/47 JUDGMENT with Shardaben and when the accused came to know about it, the accused had admonished him. He has further stated in his deposition that his father Mohanbhai used to guard the fields of Kesarising Jesingbhai and he used to go for work at 10 P.M. and return the next day morning at 6 O' clock. 10.1. He has further testified that on 25.5.1998 at 10 PM, the accused came to his house to call his father and Mohanbhai had accompanied the accused for guarding the fields at night. He has further deposed that as his father did not return in the morning, he went to the residence of the accused for making inquiry about his father but the accused was not there. He waited upto 7 AM for his father and thereafter searched for him in the field. He saw his father lying dead in the field near water feeder and his throat was cut. He found blood stains on the water feeder. He has further deposed that immediately he came back and informed about the CR.A/317/1999 17/47 JUDGMENT death of his father to his mother Kashiben. Persons residing in the locality came to know about the incident and they gathered at the place of the incident. He thereafter went to inform the owner of the fields and also to lodge complaint at the police station. 10.2. He has further deposed that when he went to the police station with Kesarising, the owner of the fields, he saw the accused sitting there. On asking, the accused informed him that he had cut the throat of his father and surrendered before the police with butcher's knife. After lodging the complaint, he returned to his house. On his way, he met one Maganbhai. Maganbhai told him that at night he had gone for watering his field and while returning at about 2'O clock at night he saw the accused with butcher's knife in his hand and he was found frightened. Maganbhai also told this witness Govindbhai that when he asked the accused as to where had he been, he CR.A/317/1999 18/47 JUDGMENT replied that he had gone to make a sacrifice and this witness found that the accused was very frightened. 10.3. He has identified in the Court, the lungi, slipper and bed sheet as that of his father. He has also identified muddamal Article No.9- shirt, Muddamal Article No.11 blue pant which were put on by the accused at the relevant time. He has also identified the butcher's knife which is at Article No.8. 10.4. He has been extensively cross-examined by the learned advocate of the accused. He has admitted in his cross-examination that Maganbhai is his grand father and Somabhai and Fulabhai are his uncles. He has also admitted that he has made no mention of money transaction between him and the accused in the complaint. He has stated in his cross-examination that he was mentally disturbed after knowing about the murder of his CR.A/317/1999 19/47 JUDGMENT father and he had given the complaint in a disturbed state of mind. This witness has denied the suggestion that he has falsely involved the accused as he had a love affair with Sharda, daughter of the accused. He has admitted in the cross-examination the fact that there was a love affair between him and Sharda. 10.5. On reappraisal of the evidence of P.W.1, Govindbhai Mohanbhai Talpada, it is clear that when he went to the police station along with Kesarising, the owner of the fields, he found the accused sitting in the police station, with knife. He has supported the case of the prosecution and has also stated about the motive behind the commission of crime by the accused. According to his testimony, he and Sharda, daughter of the accused were in love which was not liked by the accused and he has also attributed the reason that he had lent an amount of Rs.12,000/- to the accused for the purpose of CR.A/317/1999 20/47 JUDGMENT doing Mango business but the said amount is not returned to him by the accused and, therefore, the motive behind the murder of Mohanbhai, according to his deposition, is the above two grounds. He has also supported the case of the prosecution that the deceased was last seen together with the accused because the accused had been to his house on the previous night and called his father to accompany him to the field. It is also clear from his evidence that the accused had taken Mohanbhai from his house on the previous night and thereafter Mohanbhai did not return to his house. 11. The prosecution has thereafter examined and relied upon the evidence of P.W.2, Kesarising Jesingbhai Aajna, Ex.23. He has, inter alia, testified that he is owner of land bearing Survey No.516 admeasuring 3-A-19-Gunthas. He has further testified that half of the land belongs to his brother Kubersing. The crop in the said field was CR.A/317/1999 21/47 JUDGMENT being guarded by Mohanbhai Fulabhai and the accused was guarding the crop in the portion of the field of his brother Kubersing. At night the accused and Mohanbhai used to go to the field for guarding the crop and they used to sleep in the shelter erected at a height of 4 to 5 ft. in the field. He has further deposed that when he had gone to see his field at 8 AM, he saw a crowd near the passage of his field and at that time he knew that somebody had killed Mohanbhai near water feeder in the field. He had accompanied Govindbhai to the police station. When they were in the police station, the accused told that he had finished Mohanbhai with butcher's knife as his daughter's matrimonial life was disturbed because of the love affairs Govindbhai had with his daughter Sharda. He has further testified that while returning with Govindbhai, they came across one Maganbhai Shivabhai who told them that he had seen accused at 2 AM at night and that the accused had told him that he had gone to make a sacrifice. Kesarising has further testified that CR.A/317/1999 22/47 JUDGMENT the accused was having a butcher's knife with him when he was sitting in the police station. He has further testified that the accused killed Mohanbhai because there was a love affair between Sharda, the daughter of the accused and Govindbhai, son of deceased Mohanbhai, which the accused did not like. 11.1. In cross-examination he has denied the suggestion that Maganbhai and Shivabhai were in the crowd which had gathered near the field. He has further stated that Maganbhai has no land of his own but his father-in-law has a field. He has admitted that when he saw the accused in the police station, the butcher's knife was lying on the table. 11.2. On reappraisal of the evidence of P.W.2, Kesarising, it is clear that he is an independent witness and he has supported the prosecution case that the accused has, in his presence, made extra CR.A/317/1999 23/47 JUDGMENT judicial confession to the effect that he has killed Mohanbhai. 12. The prosecution has thereafter examined and relied upon the oral testimony of P.W.3, Maganbhai Shivabhai, Ex.24. He has, inter alia, testified that he had gone for watering his field at night but as there was no light he returned at about 2 to 2.15 AM. While returning he saw the accused with a butcher's knife. At that time the accused was put on a red bush shirt with lining and a gray pant and the accused was found to be very frightened. On asking, the accused informed him that he made a sacrifice. At about 6.30 A.M., Govindbhai came and informed him that his father is murdered. Thereafter he had gone to the field and saw the dead body of Mohanbhai near the water feeder. He has further testified that there was a love affair between Sharda, daughter of the accused and Govindbhai, son of deceased Mohanbhai. He has identified CR.A/317/1999 24/47 JUDGMENT Article No.11 and 9, respectively the pant and shirt of the accused. He has also identified Article No.8 knife. He has further deposed that the accused and deceased used to sleep at night in same shelter in the field. 12.1. In cross-examination he has stated that Mohanbhai and the accused were neighbours. He has denied the suggestion that the accused was not guarding the crop of anyone. He has clarified that he had gone for watering the field belonging to his father-in-law. He has also denied the suggestion that there was no enmity between the accused and deceased Mohanbhai. 12.2. This witness has also supported the prosecution case that he had seen the accused with butcher's knife in his hand at night hours on the fateful night. CR.A/317/1999 25/47 JUDGMENT 13. The prosecution has thereafter examined and relied upon the oral testimony of P.W.4, Kashiben Mohanbhai, Ex.25. She is the widow of Mohanbhai and the mother of the complainant. She has, inter alia, deposed that Mohanbhai used to go to guard the field in which Millet is cultivated. She has testified that the accused is their neighbour. She has further stated in his deposition that on the fateful night, when she and her family members were watching T.V. programme, the accused came to their house and asked Mohanbhai to accompany him to the field. Initially Mohanbhai had shown his unwillingness to go on that day but the accused insisted him to accompany him. In the morning she sent Govindbhai to search Mohanbhai as he did not return from the field at the usual time, and Govindbhai who had gone in search of his father, came back and informed her that he had been killed and the accused was also not available at his residence. She has further testified that people from the locality gathered in the field CR.A/317/1999 26/47 JUDGMENT where deadbody of Mohanbhai was lying. Thereafter her son Govindbhai along with Kesarising, the owner