CR.A/867/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 867 of 2006 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= RAMESHBHAI KALUJI BORANA (MARWADI) - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR BR GUPTA for Appellant(s) : 1, Miss Mita Panchal, APP, for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 07/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/867/2006 2/10 JUDGMENT The present appeal is filed by Rameshbhai Kaluji Borana (Marwadi) being aggrieved by the decision of the Court of Sessions, Gandhinagar whereby he has been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life with fine of Rs. 20,000/-. 2. Briefly stated, the prosecution was that the deceased Champaklal Kaluji was the resident of Ahmedabad and was serving as a conductor with the vehicle No. GJ. 18U- 6444 which was owned by the father of P.W. No. 5 Exh. 31 Prakashbhai Fulabhai Marwadi. It is further case of prosecution that the accused-appellant Shri Rameshbhai Kaluji Marwadi was the driver of the said truck. The accused was employed by the father of Prakashbhai Fulabhai Marwadi as a regular driver. However, the services of the deceased were obtained by the accused as well as the father of P.W. No. 5 as and when the necessity arose. It is the case of prosecution that on the day of incident i.e. on 19th June, 2005 at about 13.00 hours the Police Station, Dehgam, received an information about the dead body lying near the Parmeshwar Cold Storage and accordingly inquiry under Section 174 was entrusted. It is the case of the prosecution that Shri Shaharbhai Khumabhai, Buckle No. 1140 was entrusted the inquiry about the accidental death of the deceased, as his dead body was noticed and informed to the CR.A/867/2006 3/10 JUDGMENT police lying near to the Parmeshwar Cold Storage. 3. The Trial Court, after considering the case of the prosecution, has initiated trial proceedings on the basis of the aforesaid facts and came to the conclusion that the accused is guilty of causing of death of Champaklal Kaluji and has convicted and sentenced the accused appellant as aforesaid. The Trial Court, after considering the case of the prosecution, has found the following circumstances to have been established: (1). The deceased Champaklal was alive in his house on 18th June, 2005. (2) The deceased Champaklal was serving as conductor with the truck owned by father of P.W. No. 5 (3) The accused has called upon the deceased for going to Surat from his house on 18th June, 2005 (4) The accused and deceased has left for Dehgam for loading the potato on 18th June, 2005 (5) The deceased was alive upto 17.05 hours on 18th June, 2005 with the company of the accused (6) The deceased and accused were lastly seen together by P.W. No. 5 and P.W. No. 3 on 18th June, 2005 CR.A/867/2006 4/10 JUDGMENT (7) The deceased was found dead on 19th June, 2005 near to Parmeshwar Weigh-Bridge (8) The dead body has been examined by the experts on 20th June, 2005. (9) The experts arrived that the deceased must have died between 36 to 48 hours from conducting the post-mortem. 4. Challenging the conviction, learned counsel for the appellant urged that it is not a case of direct evidence and entire case of the prosecution rests on circumstantial evidence. The most important and first and foremost circumstance which has been relied on by the prosecution is that deceased Champaklal Kaluji was called by the accused and he was seen in his company and thereafter, he was found dead. According to learned counsel for the appellant, this circumstance is not sufficient to establish the complicity of the accused-appellant. It has been urged by learned counsel for the appellant that the fact of last seen stands negated by the testimony of police witness Jyotishchandra Mohanlal Patel, Police Sub-Inspector, Dehgam Police Station, Gandhinagar, PW-7 Exh. 34. According to this witness, when Champaklal was not seen brought in sense as he was drunk, he was left under the tree CR.A/867/2006 5/10 JUDGMENT and at that time Shyamkumar and Rameshbhai tried to put conductor champaklal in the truck but his condition was not such, therefore, he was left by the driver. Relevant testimony of the police witness at Exh. 35 pages 146-147 is as under: te p0I D<a[vr rmexwa[ t4a kaeLD S3aerejma> rheta xyamkumar jvahrlal m>Dl t4a vjnka>3anI bajuma> w>garnI dukanva5a surexlal waejajI gujRr t4a bIja raeD ]prna Aavta-jta ma`saeAe k>Dk3r c>palalne pkDI gaDIma> besaDva p/>yTn krelae.pr>tu c>palal gaDIma> besI xktae nih haeva4I c>palalne vjnka>3a Aag5 zaD pase Tya>j suvDavI dI6el Ane D<ayvr Tya>4I b3aka wrelI gaDI l[ rvana 4yel. Aa drMyan sdr mr`jnar k>Dk3r Tya>j pDI rhel. 5. If the aforesaid statement is taken into consideration then it was not the accused who was seen in the company of the deceased last but he was left after taking assistance of Shyamkumar and Rameshbhai to put him in the truck. Thus, the very such circumstance which is the basis of conviction of the appellant gets knocked down by the testimony of the police witness himself. Learned counsel for CR.A/867/2006 6/10 JUDGMENT the appellant further urged that the medical evidence is not only shaky but is uncertain. Postmortem when conducted was not considered to offer sufficient indication about the cause of death and therefore viscera was sent for chemical analysis and it is only after few months that viscera report came. That the Board of Directors examined postmortem came to the conclusion that cause of death was strangulation. Regarding which, medical evidence of Dr. Jagdip C. Yadav, PW-4, Exh. 29 in his deposition, is to the following effect: S3<eGyulexnna ikSsama> samaNy rIte lerI>g kNfyuxn haey 0e. nq juna 4yela n haeva jae[Ae. XarIr fIkku pDI gyu haey. Aava l9`ae me> paeS3 mae3Rm rIpae3R Aa>k-30ma> lqela n4I. Ae vat qrI 0e.xahed j`ave 0e ke mrnarn>u xrIr DIk>paezIxn VyvS4ama> htu te4I Aava l9`ae m5I xke tem n hta. 6. Thus, learned counsel for the appellant submitted that in a case of circumstantial evience, the circumstances are required to make a complete chain which is missing here. The cause of death has been defined in uncertain terms and has only been concluded after great lapse of time giving every possibility that error has been committed by the medical CR.A/867/2006 7/10 JUDGMENT personnel who only give opinion evidence. 7. Learned counsel for the appellant further urged that there was no motive being unearthed as to why the incident should have occurred as has been alleged against the accused person. In that background, it can safely be stated that it is only a case of accidental death which has been designed and formulated in homicidal death. 8. Per contra: learned counsel for the respondent submitted that there were injuries found and recorded in the postmortem. Mainly because the doctors have faulted in forming their opinion and delayed their information cannot be said that the death was not homicidal, specially Champaklal was called by the accused from his residence and then taken together and thereafter he was found dead. Therefore, it was for the accused to have explained as to what had happened to the deceased under Section 313 of the Criminal Procedure Code. That the accused having offered no explanation, it cannot be said that the accused is discharged of his burden. Therefore, the findings recorded by the Trial Court are supported by the learned A.P.P. CR.A/867/2006 8/10 JUDGMENT 9. We have given our thoughtful consideration and have perused the record. The most important circumstance of the case is the allegation that the deceased was last seen in the company of the accused. This circumstance, if read in right perspective of the testimony of the police personnel which has been quoted by us hereinabove, gets knocked down because he was last seen not in the company of the accused alone but Shyamkumar and Rameshbhai were also there. They had tried to put the deceased in the truck and could not put. That kind of exercise may be a possible cause for injuries as has been found on the person of the deceased. In any case, the explanation of injuries has not been given in the prosecution, as to in what manner those injuries could have been caused. It is certain that it was not the accused alone in whose company the deceased was last seen. He was in the company of Shyamkumar and Rameshbhai also. Fact is that these two witnesses have not been examined by the police. They have not been produced to explain their conduct. Thus, the most important link which the prosecution could have put forward before the Court established the fact is in whose company the deceased was last seen has been diluted. This lapse on the part of the prosecution is lapse which has to been seriously. CR.A/867/2006 9/10 JUDGMENT 10. If the deceased was not in the exclusive company of the accused as there were two persons Shyamkumar and Rameshbhai who have not been examined then non- explanation of the deceased about his being in the company of the accused cannot be seen with seriousness. It is associated with the requirement that one who is found to be last seen in the company should explain. In that background, we find the circumstance of last seen is not found established against the appellant-accused. If this circumstance is not found established, then all other circumstances do not indicate and implicate the accused in the crime. Medical evidences are too not only shaky but raise a serious doubt because if it was a death of strangulation then the doctor should have clearly recorded in his postmortem immediately. Statement of the doctor quoted hereinabove shows that the condition of dead body was not as good as has been projected by the prosecution to have clearly stated as to what kind of injuries were there. In that background, there can be a doubt about the cause of death of the deceased as well. In any case, in a case of circumstantial evidence, law as has been laid down by the Hon'ble Supreme Court that circumstances should be so to make a clear chain implicating the accused in no uncertain terms. Here, we find that such circumstances are not there and CR.A/867/2006 10/10 JUDGMENT in that background we are constrained to observe that the findings recorded by the Trial Court are not required to be confirmed and the judgement deserves to be reversed. 11. In view of the above, we are of the considered opinion that the prosecution has failed to bring home the charges as levelled against the appellant-accused. He cannot be held guilty of the charges as has been held to be proved by the learned Sessions Judge, Gandhinagar. Since the charges cannot be held proved against the accused, his conviction and sentence deserve to be set aside and are ordered to be consequently set aside. The appeal is allowed. He is ordered to be released forthwith if he is not required in any other case. (BHAGWATI PRASAD, J) (BANKIM. N. MEHTA, J) (pkn)