CR.A/815/2003 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 815 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================= 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 ? ========================================= STATE OF GUJARAT Versus MOHAN RAMBHAI KAMALIYA & ORS ========================================= Appearance : MR KC SHAH APP for Appellant MR HRIDAY BUCH for Respondents No. 1, 2 & 3 MR ZUBIN F BHARDA for Respondent No. 4 ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 29/08/2007 CR.A/815/2003 2/28 JUDGMENT ORAL JUDGMENT : (Per : HONOURABLE MR. JUSTICE J.R. VORA) 1 Instant Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, against the judgment and order rendered by learned Additional Sessions Judge, District – Junagadh, on 1st of August, 2002, in Sessions Case No.45 of 2001, whereby all the present four respondents, being accused of the said Sessions Case, came to be acquitted by the Trial Court, for the offences punishable under Sections 302, 394, 201, 120(B),34, 411 and 114 of the Indian Penal Code. 2 Learned APP Mr. K.C.Shah for the State, learned Advocate Mr. Hirday Buch for respondents No. 1, 2 and 3 and learned Advocate Mr. Zubin F. Bharda for respondent No. 4 were heard. Leave to Appeal is granted. Appeal is admitted. 3 Learned counsels appearing in the Appeal requested this Court to hear the Appeal finally as the Record and Proceedings of the Trial Court are available with this Court and that they shall provide extra copies of the evidence recorded during trial and the documents produced on record. Request is granted and the matter is heard finally. CR.A/815/2003 3/28 JUDGMENT 4 According to the facts of prosecution case accused Nos.1 and 2 had committed murder of Bharwad Lakhabhai Ambabhai, who was resident of village Rohika of Dholka taluka. Bharwad Lakhabhai was the Driver of Truck No. GJ-1-TT-9870, belonging to one Jagadishgiri Mohangiri Goswami, resident of Baroda. The truck was plying between Kodinar Ambuja Cement Factory to Ahmedabad for shifting cement from the factory through one transport company named as “Jeel Transport Co.” belonged to Ahmedabad. Accused No.1 Mohan Rambhai Kamaliya was also a Driver in Truck No. GJ-12-V 7338 and the said truck was also plying in Ambuja Cement Company and, therefore, he knew deceased Bharwad Lakhabhai Ambabhai. On 20.1.2001, according to prosecution case, deceased Lakhabhai Bharwad came to Kodinar at Ambuja Cement Factory from Ahmedabad for loading cement in his Truck No. GJ-1-TT-9870. At that time, accused No.1 Mohan Rambhai Kamaliya along with accused No.2 Kishor Mohanbhai Makwana had been to the cement factory for the settlement of his account from witness Karshan Jethabhai about the truck accused No.1 was plying earlier. Accused Nos. 1 and 2 stayed in Poratha House belonging to one Parshottam Bapu, and said Paratha House was situated near the office of Raj Moti Transport . On the next day, accused No.1 left Paratha House stating that he was going to Karshan Jethabhai to settle the accounts and returned to Paratha House CR.A/815/2003 4/28 JUDGMENT at 6.00 a.m. in Truck No. GJ-1-TT 9870 along with deceased Lakhabhai Barward. Accused No.1 Mohan Rambhai Kamaliya thereafter introduced accused No.2 Kishor Mohanbhai Makwana to the deceased and deceased had been to Ambuja Cement factory for loading the truck and came out of the factory at 4.30 p.m. and halted near Paratha House. At that time, accused No.1 Mohan Rambhai Kamaliya and accused No. 2 Kishor Mohanbhai Makwana were sitting on a cot near Paratha House. Parking his truck near Paratha House, deceased went to the office of Ambuja Cement for collecting papers. At that time, accused Nos. 1 and 2 both conspired together to cause murder of Lakhabhai Bharwad and to rob the cement loaded in his truck and to implement this conspiracy, both the accused Nos. 1 and 2 boarded in the truck along with deceased Lakhabhai Bharwad at 10.30 p.m. and sat in the cabin of the truck. When the truck reached near Veraval at bye-pass road, they took supper and when they reached near village Kanaja, they halted to take tea and thereafter they proceeded ahead. When they proceeded further from Kanaja, the accused No.1 started driving the said truck, accused No.2 was sitting near him, while deceased Lakhabhai Bharwad was sitting on left side door of the cabin of the truck. When this truck at 2.00 a.m. reached near Dilavar Nagar, accused Nos. 1 and 2 started implementing their conspiracy and intentionally accused No.1 stated that there was something wrong in the mechanism of the truck and some CR.A/815/2003 5/28 JUDGMENT noise was coming. Therefore, deceased leaned from the window to ascertain whether there was anything wrong in the truck. At that time, according to the instructions of the accused No.1 Mohan Rambhai Kamaliya, accused No.2 took one iron rod and inflicted one blow on the back side of the head of the deceased. Deceased had fallen down from the cabin of the truck and, thereafter, the truck was halted nearby. Thereafter both accused Nos. 1 and 2 got down from the truck and inflicted more blows by iron rod and wooden log on the body of the deceased and they inflicted at about 10 to 15 blows. Accused No.2 caught hold of the legs of the deceased and accused No.1 throttled deceased. Both of them thereafter snatched cash and the papers from the pocket of the deceased. Thereafter accused Nos. 1 and 2 travelled upto village Vadla in the said truck along with dead body of deceased. They washed their clothes, which were bloodstained at village Vadla and thereafter they went to Dhanfuliya village and changed their clothes. Shoes of the deceased were thrown in waste land and with intention to destroy the evidence, the dead body of the deceased, was thrown on railway track from the Bridge of Shahpur village. From there in truck, accused Nos. 1 and 2 came near railway crossing of village Vadla and near a petrol pump situated there, the accused burnt and destroyed papers and diary found from the pocket of the deceased. Both the accused Nos. 1 and 2 thereafter in the truck came to village CR.A/815/2003 6/28 JUDGMENT Timbavadi and where they met accused No.3 Gopal Ramjibhai Makwana and with the abatement of accused No.3, cement which was loaded in the truck was unloaded and was stored in the house of accused No.4 Ramji Nathubhai Vaja. Thereafter, unloading the truck, accused Nos. 1 and 2 came to Amreli Chalala road and abandoned the truck on the road. From there, both the accused hired one rickshaw and came to Bagasara and from there they came to Junagadh. On 21st of January, 2001, Maganbhai Sangrambhai, Mukadam of Railway Station of Shapur, informed Deputy Superintendent that Engine Driver of the train, which was passing in the early morning, had conveyed that one dead body was noticed by him near railway over-bridge at Shahpur. In pursuance of this information, Maganbhai was directed to make inquiry. Maganbhai found the dead body of the deceased on railway track, which was crushed and, prima facie, it appeared that, the death was caused on account of accident with the train. Deputy Superintendent Madhusudan Tuljashankar Pandya was informed and after preparing one Yadi, Mukadam Maganbhai Sangrambhai was sent to Vanthali Police Station for declaring this incident before police. Vanthali Police registered the incident as Accidental Death Case No.2 of 2001 and In- charge PSI Shri Joshi, conducted this inquiry. In the meantime, PSI S.N. Mehta of Striking Force of the Junagadh received information on 28th of January, 2001 that in village Timbavadi of Junagadh one stolen CR.A/815/2003 7/28 JUDGMENT stock of cement was stored and, therefore, he conducted a raid in the house of accused No.4 Ramji Nathubhai Vaja and seized the stock of cement along with those stock of cement, accused No.3, accused No.4 and one more person named as Nilesh Nathu, were also found and proceedings were started against them according to Section 41(1)(d) of the Criminal Procedure Code, and those three persons were arrested. In inquiry, it was found that the stock of cement was sold by accused No.1 Mohan Rambhai Kamaliya and accused No.2 Kishor Mohanbhai Makwana to accused Nos. 3 and 4 in much lesser price. During investigation, on 28th of January, 2001, accused No.2 Kishor Mohanbhai Makwana was found from village Dhanfuliya and PSI Mehta inquired from him and he stated that along with accused No.1 they had caused death of Lakhabhai Bharwad and had stolen the cement from the truck, so the crime came to be registered at Vanthli Police Station vide Crime Register No. 13 of 2001 against present respondents for above said charges. It appears that FIR came to be registered of accused No.1. In-charge Circle Police Inspector of Manavdhar investigated the offence and thereafter Vanthli Police Station PSI Mr. M.V. Parmar took the charge of investigation. Ultimately, a charge sheet came to be filed against all the four respondents on 23rd of April, 2001 in the Court of Judicial Magistrate, First Class, at Vanthli Police Station for the above said offences, which was registered as Criminal Case No. 239 of 2001. CR.A/815/2003 8/28 JUDGMENT The case was committed to the Court of Sessions and where it was registered as Sessions Case No. 45 of 2001. Charge was framed against the respondents vide Exhibit – 1 by learned Additional Sessions Judge on 10th of April, 2002 and was read over to the respondents. Each of the respondents pleaded not guilty to above charges. 5 The prosecution, therefore, examined as many as 55 witnesses to prove its case and produced on record 45 documents. The learned Trial Judge recorded this voluminous evidence and thereafter recorded the statements of each of the respondents under Section 313 of the Code of Criminal Procedure and the defence of each of the respondents was of total denial. After hearing the prosecution as well as defence, Trial Court came to the conclusion to acquit all the respondents and, hence, this Appeal by the State. 6 Learned A.P.P. Mr. K.C. Shah on behalf of the State, learned Advocate Mr. Hirday Buch and Mr. Zubin F. Bharda for the respondents were heard in great detail in respect of this Appeal. 7 Having heard rival contentions and having gone through each corner of the record and proceedings, we have considered in great detail vital features of the matter. We have taken into consideration CR.A/815/2003 9/28 JUDGMENT reasonable probabilities arising out of the evidence recorded during the trial. We have taken into account evidence of each of the witnesses recorded during trial and the documents produced on record. Though this is an appeal against the acquittal, we have re-appreciated the evidence independently and we have scanned carefully the findings arrived at by the Trail Judge with reference to re-appreciation of the evidence undertaken by us. 8 The whole prosecution case rests on circumstantial evidence. Prosecution proposes to establish the case against all the four respondents by the circumstances found during the evidence and recorded before the court in shape of the deposition and the documents produced. So far as the death of the deceased is concerned, there is no dispute that the same was homicidal death. This fact is established by the prosecution beyond doubt by PW-14 Jamnadas Chhaganlal Ladani, who conducted postmortem of the deceased. He conducted postmortem on 21.1.2001 in pursuance of yadi which he received, and in pursuance of inquest panchnama forwarded with yadi. He narrated injuries in Column–17 of postmortem note, which is placed on record at Exhibit–42. He narrated the corresponding internal injuries in his postmortem note placed at Exhibit – 42. He opined that all the injuries were anti-mortem and the death was on account of multiple injuries on CR.A/815/2003 10/28 JUDGMENT the skull of the deceased and on account of fractures of the skull. The injuries were caused, according to Doctor, by hard and blunt substances. 9 Prosecution proposed to prove the crime of the respondents by following eight circumstances by which according to the prosecution it was established that accused Nos. 1 and 2 caused murder of deceased Lakhabhai Bharwad and accused Nos. 3 and 4 were liable to store the stolen muddamal of cement. It is also the case of the prosecution that after causing murder of deceased Lakhabhai Bharwad, accused Nos. 1 and 2 had stolen the cement loaded in the truck. The circumstances which were relied on by the prosecution, can be summarised as under : i) The circumstances of last seen together i.e. accused Nos. 1 and 2 were seen along with the deceased near cement factory at Kodinar, thereafter at Paratha House and thereafter at tea stall on the night of incident. ii) The evidence in respect of destroying all papers and diary by accused Nos. 1 and 2 near petrol pump at Vadla crossing. CR.A/815/2003 11/28 JUDGMENT iii)Evidence by which it is established that accused Nos. 1 and 2 thrown the dead body of deceased Lakhabhai Bharwad from over-bridge of railway track near Shahpur. iv) The evidence of disposal of cement loaded in the said truck by accused Nos. 1 and 2 to accused Nos. 3 and 4. v) Evidence of disposal of shoes of the deceased by accused Nos. 1 and 2. vi) Disposal of the stolen truck No. GJ-1-TT-9870, by accused Nos. 1 and 2, which was in possession of the deceased Lakhabhai Bharwad. vii)Panchnama prepared by the Investigating Agency, by which both the accused demonstrated that how they committed the crime. viii)Forensic Science Laboratory evidence and witnesses of Forensic Science Laboratory. 10 Through above eight circumstances, it is submitted on CR.A/815/2003 12/28 JUDGMENT behalf of the State that, the charges levelled against each of the respondents are amply proved and that the judgment and order of acquittal in question requires to be interfered with. While on behalf of the respondents, it has been argued that in the case resting on the circumstantial evidence, it becomes the duty of the prosecution to prove each link of circumstances, which leads to a chain, leading to the crime committed by the accused. It is submitted that not a single link of any circumstance could be established by the prosecution against any of the accused and, therefore, no interference is warranted in the order impugned in this Appeal. 11 We have re-appreciated the evidence and each circumstances proposed by the prosecution to establish the case against all the respondents through the circumstantial evidence. 12 Very first circumstance is in respect of last seen of the accused and deceased together on 21.1.2001 at Ambuja Cement factory and thereafter. Though it is proved through PW-1 Haribhai Varsinhbhai, examined at Exhibit 101, that on that day i.e. 20.1.2001, deceased Lakhabhai Bharwad loaded his truck with cement from cement factory at Kodinar and, thus, the said truck was to be taken at Ahmedabad and the cement was to be unloaded there. Except this, the fact of last seen CR.A/815/2003 13/28 JUDGMENT together of the accused and deceased could not be established by the prosecution through circumstantial evidence. PW-24 witness Dayalgar Jivangar, examined at Exhibit – 67, did not support the prosecution case that accused Nos.1 and 2 had stayed overnight in his lodging house, named as Giriraj, situated near Ambuja Cement factory. It was not supported by this witness that on next day both the accused boarded in Truck No. GJ-1-TT 9870 along with deceased Lakhabhai Bharwad. PW-43 Virambhai Hathiyabhai, who was Manager of the said lodging house, was also examined at Exhibit – 96, but he also did not support the fact that he had seen accused Nos. 1 and 2 along with the deceased on 21st of January, 2001 and both the witnesses denied the fact that on 19.1.2001 accused Nos. 1 and 2 stayed overnight in their lodging house and had taken supper. Both the witnesses denied to have known accused No. 2 Kishor Mohanbhai Makwana and stated that they knew accused No.1 Mohan Rambhai Kamaliya only. Prosecution in this respect has also examined PW-44, Exhibit – 97 witness Jagadish Hajabhai, who was also a servant in the lodge owned by witness Dayalgar Jivangar, but he has also not supported the prosecution case. Going further, the prosecution examined PW-45 Amrutlal Jamnadas, vide Exhibit-98, to prove that near the bye-pass road of Veraval town, in Paratha House, accused Nos. 1 and 2 and deceased were seen together by this witness but this witness also did not support the prosecution case and stated CR.A/815/2003 14/28 JUDGMENT that he neither knew deceased Lakhabhai Bharwad nor any of the accused and he had not seen any of them at the Paratha House. PW-36 Ramesh Virambhai is also examined at Exhibit - 84 in this respect that near village Kanaja both the accused Nos. 1 and 2 and the deceased took tea at the tea stall named as `Jai Mataji'. This stall belonged to PW-36 Ramesh Virambhai, and it is the prosecution case that, deceased and accused Nos. 1 and 2 were seen at the said tea stall after the Paratha House. Witness Rameshbhai Virambhai, examined at Exhibit – 84 did not support the prosecution case and stated that he had never seen those three persons together at his tea stall. The prosecution though examined PW-49 Shamla Menandbhai, who stated before the court that on the day of the incident at his pan beedi cabin, which was situated near village Kanaja, accused Nos. 1 and 2 and Lakhabhai Bharwad had come. He stated that at his cabin accused Nos. 1 and 2 took tea and had boarded in truck of Jeel Transport Co. and had gone away. In his examination in cross, he admitted that his cabin was situated on highway road and he could not say that on particular day which person had visited his cabin. He denied that at the behest of the police, he deposed before the court that accused Nos. 1 and 2 had visited his cabin. He admitted that he did not know deceased Lakhabhai and he did not know that how the person was looking and he belonged to which village. He stated that, he could not say that, what was the name of the CR.A/815/2003 15/28 JUDGMENT father of deceased Lakhabhai. He admitted in his cross-examination that he had never known or met Lakhabhai earlier and never had any kind of talk with him. Appreciating the evidence of this witness, the learned Trial Judge came to the conclusion that this witness was not reliable as he failed to establish that he did know deceased Lakhabhai and unless it is established that he knew deceased Lakhabhai very well, it was not possible for the witness to state that he knew Lakhabhai, who had visited his pan-beedi cabin situated on highway at Kanaja along with accused Nos. 1 and 2. The learned Trial Judge further observed that it was not a case of stray incident which could be remembered by the witness, but the cabin was situated on the high way, on each day, according to the witness, many trucks and many persons were visiting his cabin and, therefore, the learned Trail Judge came to the conclusion that the evidence of this witness was not beyond doubt. On appreciating independently the evidence of this witness, we also come to the conclusion that this witness is not reliable to establish the fact that accused Nos. 1 and 2 and the deceased were last seen together at his pan -beedi cabin and took tea. When the witness did not know deceased Lakhabhai Bharwad, it was not possible for him to state that it was deceased Lakhabhai Bharwad who had visited his cabin along with accused Nos. 1 and 2 to take tea. Noteworthy it is that, no description at all of deceased Lakahbhai could be given by this witness to recognise CR.A/815/2003 16/28 JUDGMENT the deceased, who allegedly had visited the cabin of this witness. Thus, so far as the first circumstance of last seen together of accused Nos. 1 and 2 along with the deceased is concerned, from the above appreciation of evidence, it is clearly established that the prosecution has failed to establish this link against the accused in the chain of circumstantial evidence. 13 The second circumstance which is proposed by the prosecution is in respect of destroying the papers and diary recovered by accused Nos. 1 and 2 from the pocket of the deceased. It is the prosecution case that near Vaishali Hotel and near cabin of one Jayantibhai at Vadla Railway crossing, in a bone fire, accused Nos. 1 and 2 destroyed papers and diary recovered from the dead body of the deceased. For establishing this fact, prosecution has examined PW-9 Najabhai Bhimabhai, Exhibit-33, and PW-15, Exhibit – 45 Maganbhai Ramjibhai. According to prosecution case, in the presence of these witnesses, in a bone fire, accused Nos. 1 and 2 destroyed the said diary and the papers. Witness Najabhai Bhimabhai, Exhibit – 33, and Maganbhai Ramjibhai – Exhibit – 45 turned hostile and did not support the prosecution case. They denied that accused Nos. 1 and 2 had come near the hotel owned by Jayantibhai on one Spark Moped bi-cycle and destroyed diary and papers putting the same in the fire. This link also CR.A/815/2003 17/28 JUDGMENT therefore could not be established by the prosecution beyond doubt. 14 The third circumstance which prosecution proposed to establish is in respect of throwing of dead body by accused Nos. 1 and 2 from the truck on railway track from over bridge near village Shahpur. In this respect, it is also the prosecution case that, after that, both the accused washed their clothes at their house and thereafter they changed those clothes. The prosecution examined PW-20 Exhibit – 63 Mithiben Mohanbhai and she happened to be mother of accused No.2 Kishor Mohanbhai Makwana. It is the prosecution case that accused No.2 came to his house on the night of the incident with wet clothes and changed his clothes. However, witness Mithiben Mohanbhai did not support the prosecution case that accused No.2 Kishor Mohanbhai had changed his clothes on the day of the incident. Same way, PW-17 Exhibit – 47 Bhanuben Sujabhai, being sister of the mother of accused No.2, was also examined by the prosecution to establish this fact, but she also turned hostile and did not support the prosecution case. PW-18, examined at Exhibit-48, Jyotsnaben Mohanbhai, wife of accused No.1, examined by the prosecution also turned hostile. She was examined to prove the fact that accused No. 1 had been to the house of witness Bhanuben and after saying that he was going to unload the truck, had taken Spark motorcycle and had gone on that motorcycle, but witness Jyotsnaben did CR.A/815/2003 18/28 JUDGMENT not support the prosecution case and was turned hostile. It was the prosecution case that accused No.1 had given Rs. 1,500/- to witness Jyotsnaben and police seized remaining amount of Rs. 1,325/- from her as muddamal, but this fact is also not supported by witness Jyotsnaben. Therefore, the fact that both the accused Nos. 1 and 2 had thrown the dead body of the deceased on the railway track and thereafter washed their clothes and changed wet clothes and out of the amount received from selling stolen stock of cement, accused No.1 gave Rs. 1,500/- to his wife Jyostnaben, could not be established by the prosecution beyond reasonable doubt. This link also remains not proved by the prosecution in the chain of circumstantial evidence. 15 The fourth circumstance prosecution proposed to establish the crime of