CR.A/48/2000 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 48 of 2000 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 ? ========================================================= VISHRAMBHAI KARSANBHAI VAGHAMSHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant(s) : 1, MR H.L. JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/02/2008 CR.A/48/2000 2/39 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This Appeal is directed against the common judgment and order dated 23rd December, 1999 passed by the learned Addl. Sessions Judge, Kutch – Bhuj in Sessions Cases No. 75/1998 and 76/1998 whereby, the appellant, original accused no. 1, was convicted for the offences punishable u/s. 302, 325 and 379 of the Indian Penal Code [for short, “the I.P.C.”] while original accused nos. 2 to 5 were acquitted from all the charges levelled against them. For conviction u/s. 302 of I.P.C., the appellant was sentenced to undergo imprisonment for life while for conviction u/s. 325 of I.P.C., he was sentenced to undergo rigorous imprisonment for a period of two years with fine of Rs.5,000/- and in default of payment of fine, simple imprisonment for a further period of six months. While for conviction u/s. 379 of I.P.C., he was sentenced to undergo simple imprisonment for a period of six months with fine of Rs.500/- and in default of payment of fine, simple CR.A/48/2000 3/39 JUDGMENT imprisonment for a further period of two months. All the sentenced were ordered to run concurrently. The appellant was given the benefit of set-off. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 On 21.05.1998, at around 0830 hrs., Prafulchandra Keshavjibhai Hadiya, the complainant and son of deceased Keshavjibhai Rajabhai Sorathiya, was sitting near his shop situated opposite to the bus-stand of Nagor Village. At that time, deceased Keshavjibhai Rajabhai Sorathiya came to his shop on a two-wheeler bearing registration No. GUX – 532 with two of his minor grand- daughters – Rashmi and Urvi aged 6 and 4 years respectively. Some time later, deceased Keshavjibhai Rajabhai Sorathiya and the two grand-daughters proceeded towards Bhuj on the said two-wheeler for the purpose of attending a marriage function. 2.2 At around 1015 hrs., one Naran Ladha, a resident CR.A/48/2000 4/39 JUDGMENT of the same Village, came to the shop of the complainant and informed that his father has met with an accident at Bhid Naka situated on the way to Bhuj. During that time, the two minor daughters of the complainant, who had also sustained severe bodily injuries, were taken to Civil Hospital, Bhuj in an Auto-rickshaw that was passing through the said route. 2.3 A member of the crowd that had gathered at the place of incident namely, one Mahesh Bhinde, had also accompanied the two minor grand-daughters of the deceased to the Civil Hospital, Bhuj. The said person informed about the aforesaid incident to the Police Head Constable, Dilipsinh Umedshinh Jadeja, who was on duty in the Hospital at the relevant point of time. The Police Head Constable noted down the same and telephonically informed about the said incident to City Police Station, Bhuj. The P.S.O., who was on duty at the relevant point of time, made necessary entry in the Station Diary and handed over a 'wardhi' to P.S.I. - Alkubhai Nagbhai Vala for the purpose of carrying out necessary preliminary investigation. CR.A/48/2000 5/39 JUDGMENT 2.4 In the meantime, the complainant reached the place of incident and he noticed that his father had succumbed to the injuries at the place of incident itself. A member of the crowd that had gathered at the scene of offence informed him that his two daughters have been taken to Civil Hospital, Bhuj for necessary treatment. Therefore, the complainant proceeded towards Civil Hospital, Bhuj. At Civil Hospital, Bhuj, the P.S.I. noted down the complaint and thereafter, sent the same to the Police Station for the purpose of registering the offence. On receipt of the same, it was registered as I – C. R. No. 142 of 1998 for offences punishable u/s. 302 & 307 of the I.P.C. 2.5 Investigation into the said offence was taken over by P.S.I. - Ramsinhg Badiyabhai Bambhor. The Investigating Officer went to the scene of offence. Inquest 'panchnama' was prepared in the presence of 'panchas'. 'Marnottar' form was filled-up and necessary arrangements were made for sending the body for performing post-mortem. 'Panchnama' of the scene of offence was done in the presence of 'panchas' CR.A/48/2000 6/39 JUDGMENT and necessary 'muddamal' articles were collected. The Auto- rickshaw in which the two daughters of the complainant were taken to the Hospital were also seized by way of a separate 'panchnama' in the presence of 'panchas'. The Investigating Officer went to Civil Hospital, Bhuj and seized the clothes wore by the two grand-daughters of the deceased at the relevant point of time by way of a separate 'panchnama' in the presence of 'panchas'. 3.0 On the same day, i.e. on 21.05.1998, at around 1335 hrs., Ratilal Virjibhai Sorathiya filed a complaint before City Police Station, Bhuj against the appellant herein, alleging that his Truck bearing registration No. GJ – 12T – 9978, has been stolen, which was registered as I – C. R. No. 132 of 1998 for offence punishable u/s. 379 of the I.P.C,. Investigation into the alleged offence was handed over to P.S.I. - Maheshwar Hariprasad Joshi. The said Investigating Officer went to the scene of offence and carried out necessary preliminary investigation. 'Panchnama' of the scene of offence was done in the presence of 'panchas'. Necessary 'muddamal' articles were collected. Statements of CR.A/48/2000 7/39 JUDGMENT several witnesses were also recorded. 3.1 On 22.05.1998 the appellant came to be arrested in connection with the offence registered as I – C. R. No. 132 of 1998. The Truck in question was seized by way of a separate 'panchnama' in the presence of 'panchas'. The R. C. Book and other documents pertaining to the said vehicle were also seized as 'muddamal' articles. 4.0 In the meanwhile, the Investigating Officer of the complaint being I – C. R. No. 142 of 1998 also recorded the statements of several witnesses. A 'yaadi' was sent to the Executive Magistrate for the purpose of recording the dying declaration of the two daughters of the complainant. As cogent material was found against the appellant, he was arrested in connection with the said offence also. Subsequently, the other accused persons surrendered themselves before the City Police Station, Bhuj. On completion of the remand period, all the accused persons were sent to judicial custody. CR.A/48/2000 8/39 JUDGMENT 4.1 The 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the Injury Certificates of the two grand-daughters, their dying declarations, the post-mortem report of the deceased and other reports, they were kept in the investigation file. On completion of investigation, charge-sheet was filed against the accused persons in respect of the complaint being I – C. R. No. 142 of 1998 along with the charge-sheet papers in respect of the complaint being I – C. R. No. 132 of 1998 before learned Chief Judicial Magistrate, Bhuj since both the offences had arisen from one and the same offence. 4.2 As the case was exclusively triable by the Court of Sessions, the learned C.J.M., Bhuj committed the case to the Sessions Court, Kutch at Bhuj and the same were numbered as Sessions Cases No. 75/1998 and 76/1998. Subsequently, the cases were handed over to the learned Addl. Sessions Judge for disposing of the same on merits. The learned Addl. Sessions Judge framed the charge and as the accused persons pleaded not guilty to the said charge, trial was conducted. CR.A/48/2000 9/39 JUDGMENT 5.0 To prove the guilt against the accused persons, the prosecution has examined in all twenty three witnesses namely, PW–1 Prafulchandra Keshavjibhai Hadiya at Exhibit – 10, PW – 2 Dr. Vinod Kavjibhai Varsaat at Exhibit – 11, PW – 3 Lalitkumar Chimanlal Mehta at Exhibit – 17, PW – 4 Jayantilal Maganlal Soni at Exhibit – 20, PW – 5 Ishaq Aamad Lota at Exhibit – 24, PW – 6 Narsinhbhai Rudabhai at Exhibit – 25, PW – 7 Dayaram Velji Sorathiya at Exhibit – 27, PW – 8 Mahmadhussain Alimahmad Luhar at Exhibit – 30, PW – 9 Rashmiben Prafulbhai Aahir at Exhibit – 31, PW – 10 Urvi Prafulbhai at Exhibit – 54, PW – 11 Bhailal Jivram Gaur at Exhibit – 55, PW – 12 Dinesh Manji Sorathiya at Exhibit – 76, PW – 13 Kirtikumar Karsanji Gaur at Exhibit – 77, PW – 14 Manji Valji Sorathiya at Exhibit – 80, PW – 15 Ratilal Virjibhai Sorathiya at Exhibit – 81, PW – 16 PW – 16 Ishwar Parsottam at Exhibit – 83, PW – 17 Vishrambhai Valjibhai Hadiya at Exhibit – 84, PW – 18 Maheshwar Hariprasad Joshi at Exhibit – 86, PW – 19 Alkubhai Nagbhai Vala at Exhibit – 88, PW – 20 Valrajsinh Tapubhai Chudasama at Exhibit – 89, PW – 21 Ramsinhg Badiyabhai CR.A/48/2000 10/39 JUDGMENT Bambhor at Exhibit – 90, PW – 22 Sanjaykumar Aniruddhsinh Jadeja at Exhibit – 95 and PW – 23 Dilipsinh Umedsinh Jadeja at Exhibit – 96. 5.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaints vide I – C. R. No. 132/1998 & 142/1998 at Exhibits – 87 and 101 respectively, A. D. No. 20/1998 of Bhuj City Police Station at Exhibit – 32, the inquest 'panchnama' at Exhibit – 33, the 'panchnama' regarding sample of blood collected from the auto-rickshaw at Exhibit – 34, the 'panchnama' regarding seizure of the clothes of the two daughters of the complainant at Exhibit – 35 / 37, the 'panchnama' regarding seizure of the clothes of the deceased at Exhibit – 36, the 'panchnama' regarding collection of sample of petrol from the place of incident at Exhibit – 38, the 'panchnama' regarding collection of sample of petrol from the motor-cycle at Exhibit – 39, the 'panchnama' regarding collection of sample of blood from the body of the deceased at Exhibit – 40, the carbon copy of vehicle bearing registration No. GJ-12T-9978 at Exhibit – CR.A/48/2000 11/39 JUDGMENT 41, the sale deed of vehicle bearing registration No. GJ – 12T – 9978 at Exhibit – 42, the noting of the F.S.L. at Exhibit – 43, the dying declarations of the two daughters of the complainant at Exhibits – 21 and 22, the Medical Certificates of the two daughters of the complainant at Exhibits – 13 & 14, the Post-mortem report at Exhibit – 12, Forwarding letter of 'muddamal' sent to the F.S.L. at Exhibit – 44, the copy of the receipt prepared on the spot by the F.S.L. at Exhibit – 45, Receipt issued by the F.S.L. at Exhibit – 46, Letter of the F.S.L. at Exhibit – 47, F.S.L. Report at Exhibit – 48, the Serological Report at Exhibit – 49, the Report of the Chemistry Division of the F.S.L. at Exhibit – 50, the Report of the Physics Division of the F.S.L. at Exhibit – 51, R.T.O. Report of vehicle No. GJ – 12T – 9978 (Truck) at Exhibit – 18 and the R.T.O. Report of vehicle No. GUX – 532 at Exhibit – 19. 5.2 On submission of the closing 'purshis', the learned Addl. Sessions Judge recorded the further statement of the accused persons u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for CR.A/48/2000 12/39 JUDGMENT the respective parties, the learned Addl. Sessions Judge passed the impugned judgment convicting the appellant and acquitting the other accused persons from the offences alleged against them. Hence, this Appeal. 6.0 Mr. Y. S. Lakhani learned Advocate for the appellant has submitted that the case of the prosecution rests upon circumstantial evidence and that the prosecution has failed to establish the chain of circumstances pointing towards the guilt of the appellant. He has submitted that if the said chain of circumstances remains incomplete or if there is any reasonable ground for a conclusion consistent with the innocence of the accused, then the accused cannot be convicted for the alleged offence in question. In support of the said principle, learned Advocate has relied upon a decision of the Apex Court in the case of Laxmi Raj Shetty & anr. v. State of Tamil Nadu reported in A.I.R. 1988 S.C. 1274 wherein the Apex Court has laid down the factors to be considered while dealing with a case pertaining to circumstantial evidence. CR.A/48/2000 13/39 JUDGMENT 6.1 Learned Advocate for the appellant has further submitted that in a case based on circumstantial evidence, the prosecution also has to prove the 'motive' behind the alleged offence in question. 6.2 Learned Advocate has contented that in the present case, the prosecution has failed to prove that there was any 'motive' behind the commission of the alleged offence in question. He has submitted that the appellant was settled in a foreign country and had come to India only about one month prior to the date of the alleged incident in question. Apart from that there is no evidence on record to show that there was any altercation or dispute pending between the appellant and the deceased or with any of his family members which might have led the appellant to commit the alleged offence in question. Thus, in the absence of any evidence on record to show the existence of any 'motive' behind the commission of the alleged offence in question, the appellant deserves to be acquitted by granting him the benefit of doubt. CR.A/48/2000 14/39 JUDGMENT 6.3 In support thereof, learned Advocate has relied upon a decision of the Apex Court in the case of Badam Singh v. State of Madhya Pradesh reported in A.I.R. 2004 S.C. 26 wherein it has been held that in a case where the ocular testimony appears to be suspect, the existence or absence of motive acquires some significance regarding the probability of the prosecution case. 6.4 Learned Advocate for the appellant has next submitted that the prosecution case mainly rests upon the oral evidence of PW–1 Prafulchandra Keshavjibhai Hadiya at Exhibit – 10, PW – 6 Narsinhbhai Rudabhai at Exhibit – 25, PW – 16 Ishwar Parsottam at Exhibit – 83 and PW – 17 Vishrambhai Valjibhai Hadiya at Exhibit – 17. He has submitted that on a bare perusal of the evidence led by the aforesaid witnesses, several inconsistencies come to the fore and, in such circumstance, the evidence led by them could not be relied upon. CR.A/48/2000 15/39 JUDGMENT 6.5 Learned Advocate for the appellant has contented that the appellant has been involved in the alleged offence in question only on the basis of a dispute that was pending between original accused no. 2 and the deceased. He has contented that the complainant himself has admitted in his chief-examination that when he was informed by one Naran Ladha about the accident in question, he apprehended that the same might have been caused by the appellant. Thus, from the evidence of the complainant himself, it is evident that the appellant has been involved in the alleged offence only on the basis of a suspicion and not on the basis of any cogent evidence. 6.6 In support of the same, learned Advocate has relied upon a decision in the case of Narendra Singh & anr. v. State of M.P. reported in (2004) 10 S.C.C. 699 wherein it has been held that suspicion, however grave may be, cannot take the place of proof. Learned Advocate has, therefore, submitted that the appellant deserves to be acquitted by granting him the benefit of doubt. CR.A/48/2000 16/39 JUDGMENT 6.7 Learned Advocate for the appellant has further contented that the F.S.L. Reports on record also does not support the case of the prosecution. He has submitted that from the evidence of PW – 8 at Exhibit – 30 and PW – 15 at Exhibit – 81, it is evident that the vehicle in question was locked from the outside and that the said lock was not found to be either broken or tampered with. Therefore, it is highly improbable that the alleged accident in question was caused by the appellant by driving the vehicle in question. 6.8 Learned Advocate for the appellant has next submitted that the prosecution has not examined certain persons as prosecution witnesses though their evidence could have been of considerable help. He has submitted that one Naran Ladha – who had informed the complainant about the alleged incident in question, one Vinod Kevadiya – who was present at the shop of the complainant at the relevant point of time, one Mahesh Bhinde – who, according to the entry in the Police Station Diary, had brought the two injured daughters of the complainant to the Hospital and one Shah – whose presence was found at the place of CR.A/48/2000 17/39 JUDGMENT incident, immediately after the alleged incident in question and who, according to PW – 5 at Exhibit – 24, had firstly gone to the Police Station and had, thereafter, also gone to Civil Hospital, Bhuj have not been examined. 6.9 Learned Advocate has submitted that non- examination of these witnesses creates serious doubts about the credibility of the prosecution case. Thus, the appellant deserves to be acquitted from the alleged offence by granting him the benefit of doubt. 7.0 Mr. H. L. Jani learned APP has submitted that from the oral evidence on record, it is clear that between 0845 – 0900 hrs., four prosecution witnesses had seen the appellant driving the vehicle in question and proceeding towards Bhid Naka, i.e. the place where the alleged accident in question had taken place. Further, the fact that the lock was lying inside the cabin of the vehicle in question establish that the appellant had entered the said vehicle after breaking its lock, for which a complaint u/s. 379 of I.P.C. was also filed by PW – 15. Thus, the involvement of CR.A/48/2000 18/39 JUDGMENT the appellant in the alleged offence in question is established beyond doubt. 7.1 Learned APP has further submitted that a dispute pertaining to some land in the Village was pending between original accused no. 2, who is the elder brother of the appellant, and the deceased at the relevant point of time. The said fact is evident from the documents at Exhibits – 28, 57 to 62 and also from the statement of the appellant recorded u/s. 313 of the Cr.P.C,. 7.2 Learned APP has contented that in order to settle the same, the appellant has killed the deceased by creating a picture that the deceased had died an accidental death. Thus, there was motive behind the commission of the offence in question. 7.3 Learned APP has further submitted that PW – 5 Ishaq Aamad Lota at Exhibit – 24, PW – 15 Ratilal Virjibhai Sorathiya at Exhibit – 81 and PW – 17 Vishrambhai Valjibhai Hadiya at Exhibit – 84 are independent witnesses CR.A/48/2000 19/39 JUDGMENT and that from their evidence, the involvement of the appellant in the alleged offence in question is established beyond doubt. He has, therefore, submitted that looking to the overall oral as well as documentary evidence on record, this is a fit case wherein the prosecution has been able to prove beyond doubt the guilt of the appellant. Hence, the impugned judgment passed by the Court below deserves to be confirmed. 8.0 Heard learned counsel for the respective parties and perused the entire oral as well as documentary evidence on record. The law relating to the proof of a case based purely on circumstantial evidence has been settled by several authorities of this Court as well as of the Apex Court. Needless to say that in cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn, must be fully established beyond any reasonable doubt and the circumstances so established should not only be consistent with the guilt of the accused but, they must in their effect be such as to be entirely CR.A/48/2000 20/39 JUDGMENT incompatible with the innocence of the accused and must exclude a reasonable hypothesis with his innocence. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. The case on hand is also one which rests purely on circumstantial evidence. 8.1 We shall briefly enumerate the circumstances arising from the evidence adduced by the prosecution; (i) On the date of the alleged incident in question, at around 0800 hrs., the complainant opened his shop situated opposite to the bus-stand of Nagor Village. (ii) At around 0830 hrs., the deceased came to the shop of the complainant in a two-wheeler along with two of his grand-daughters. CR.A/48/2000 21/39 JUDGMENT (iii) Some time later, the deceased proceeded towards Bhuj on the said two-wheeler along with two of his grand-daughters. (iv) At around 0900 hrs., the appellant passed by in front of his shop by driving a Truck and was proceeding towards Bhuj. (v) At around 1015 hrs., one Naran Ladha informed the complainant that the deceased has met with an accident near Bhid Naka situated on the way to Bhuj. (vi) The deceased died on the spot. The two minor daughters of the complainant were taken to Civil Hospital, Bhuj for necessary treatment. In the meantime, a complaint was also filed against the appellant for theft of the Truck in question. 9.0 We shall now consider the aforesaid circumstances in light of the evidence led by the prosecution witnesses, more particularly, PW–1 Prafulchandra CR.A/48/2000 22/39 JUDGMENT Keshavjibhai Hadiya at Exhibit – 10, PW – 6 Narsinhbhai Rudabhai at Exhibit – 25, PW – 7 Dayaram Velji Sorathiya at Exhibit – 27, PW – 14 Manji Valji Sorathiya at Exhibit – 80, PW – 16 Ishwar Parsottam at Exhibit – 83 and PW – 17 Vishrambhai Valjibhai Hadiya at Exhibit – 84. 9.1 PW–1 Prafulchandra Keshavjibhai Hadiya at Exhibit – 10 is the son of the deceased as also the complainant in this case. In his deposition, he has stated that on the date of the alleged incident in question, he opened his shop at around 0830 hrs., during which time, the original accused no. 2 was sitting under a tree situated near his shop, along with his brothers. At that time, one Vinodbhai Kevadiya had come to his shop. He has further deposed that at around 0900 hrs., the deceased came to his shop on a two-wheeler along with his two grand-daughters and informed him that he was going to Bhuj. Thereafter, the deceased proceeded towards Bhuj on the said two-wheeler along with his two grand-daughters. About five to seven minutes thereafter, the appellant passed by in front of his shop in a Truck bearing registration No. GJ – 12T – 9978. CR.A/48/2000 23/39 JUDGMENT He has further deposed that the appellant stopped the said Truck at the place where the brothers of the appellant were sitting and entered into some conversation with them. Thereafter, the appellant proceeded with the said Truck towards Bhuj. He has further deposed that at around 1015 hrs., one Naran Ladha came