IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 682 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE N.V. ANJARIA =========================================================
========================================================= SHANKERBHAI @ PAGALGIR SHUIVCHARNI GANESHBHAI PUROHIT Versus STATE OF GUJARAT ========================================================= Appearance :
MR NA SHAIKH for Appellant(s) : 1, MR RC KODEKAR ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE N.V. ANJARIA Date :27/02/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) One Ramanbhai Shankarbhai was brutally killed in the dark of night on 10.12.2002. The appellant herein was charged for the offence of murder. The leaned Joint District and Additional Sessions Judge, Fast Track Court No.3, Bharuch, upon trial in Sessions Case No.25 of 2003 convicted the appellant for the offence under Section 302 of Indian Penal Code, 1860, and sentenced him to life imprisonment with fine of Rs.500/- and in default of payment of fine, to further undergo simple imprisonment for 25 days. The appellant was acquitted of the offence under Section 135 of the Bombay Police Act.
2. The prosecution version was based upon the complaint (Exh. 8) filed by one Arvindbhai Babubhai Rathod. He was working with a transport company owned by one Yunusbhai, the office of which was situated at the place called Aamod cross-roads, and was posted to keep watch on the grass in the field of his master near a petrol pump named Archana Petrol Pump. The deceased Ramanbhai was also the employee of same Yunusbhai, and was engaged to keep watch on the machine kept to pump water from the canal passing on the North side of the road. According to the complainant, he was staying in a tin shed erected in the field. Near that place, the appellant Shankar Ganesh alias Pagalgir Shivcharan was having his tea cabin/cart, who used to stay and also sleep in the night in open near the cart.
2.1 The complainant stated that on the day of incident around 7 p.m., he sent the deceased Ramanbhai giving his cycle and asking him to go for meals, to which Ramanbhai responded that he would first go to the site of machine and would go for the meals afterwards. Ramanbhai went to the place of machine and on return told to the complainant that appellant had been threatening and stating that something ominous would happen (Aaje kaink kalu thashe). The complainant, therefore, asked Ramanbhai as to what ominous would happen, and Ramanbhai said that nothing more was told. The complainant thereafter went to his house at around 9.30 p.m. for taking meals on a cycle, and returned after about one hour and straight went to Archana Petrol Pump to have a beedi from cashier of the Pump Mahmoodbhai. After lightening beedi, went straight to the machine. When he was parking his cycle near the cabin of the appellant, the appellant started running away on seeing the complainant. The complainant Arvindbhai further stated that he heard noise as if some iron weapon was thrown in the nearby gutter. Therefore, he went near the tea cabin and saw in the light of a torch that Ramanbhai was lying in a bleeding condition. On being asked as to who injured him and why, he did not speak as his mouth was bleeding, but pointed towards the cabin of the appellant.
2.2 The complainant stated that he thereafter rushed to the petrol pump and informed one Babubhai Machhhi and police constables on duty present there, that his colleague Ramanbhai was killed by Shankar, who has absconded, and Ramanbhai was lying in bleeding condition. Thereupon Babubhai and two homeguards on duty accompanied the complainant and immediately took Ramanbhai to the Government Hospital in the jeep. There Ramanbhai was declared dead by the doctor.
3. The charge-sheet was filed for the offence punishable under Section 302 of IPC and Section 135 of Bombay Police Act, 1951, before the learned Judicial Magistrate (First Class), Aamod, and the case was then committed to the Sessions Court, Bharuch. The trial court recorded documentary and oral evidence, examined 19 witnesses and convicted the accused for the offence of murder on the ground that there were good amount of circumstantial evidence to prove the offence against the accused.
4. Learned Advocate for the appellant submitted that the trial court has erred in holding that the offence against the appellant was established on the basis of circumstantial evidence. He highlighted the inconsistencies, contradictions and improbabilities in the evidence on record and submitted that the conviction recorded by the trial court was based on surmises and conjectures, and was not convincing at all. He relied on the judgments of the Supreme Court in Tanviben Dwivetia Vs. Sate of Gujarat [38 (2) GLR 1346] and in Krishnan Vs. State represented by Inspector of Police [2008 (2) GLH 625].
4.1 Learned Public Prosecutor submitted that the conviction was rightly recorded by the trial court and that there was sufficient evidence proving commission of offence by the appellant. He submitted that the case was duly proved on the basis of circumstantial evidence and the complainant (PW-1 Exh. 7) was able to give the clue as he was at the scene soon after the ghastly murder took place and had seen the deceased lying there seriously injured and also seen the accused running away from the scene of offence.
5. It is an admitted position that the prosecution case entirely hinges on the circumstantial evidence. In the whole incident, there was no eye witness who has seen the occurrence except that the complainant Arvindbhai Babubhai Rathod claimed to have seen the accused-convict running away on seeing him. When the conviction is based on the circumstantial evidence only, it is well settled that the facts established should be consistent only with hypothesis of guilt and that such hypothesis must be reasonable.
5.1 It is pertinent to notice the following dictum of law laid down in Hanumant Govind Nagundka Vs. State of Madhya Pradesh [AIR 1952 SC 343] and approved by the Constitution Bench in Govind Reddy Vs. State of Mysore [AIR 1960 SC 29]:
“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 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.”
5.2. Considering the evidence before the trial court, it is the complainant (PW-1 Exh.7), who claimed to be in close knowledge of the incident, and it is he who has informed and told everybody else about the incident of murder of Ramanbhai, and therefore, he is the mainstay for the account of the offence as well as for the whole prosecution case.
6.1 In his evidence, PW-1 deposed that he and the deceased were good friends serving together under Yunusbhai. On the day of incident, PW-1 had sent the deceased for meals giving his cycle, and he came back carrying tiffin from his house, but did not take meals and stated that he would first go the canal site at the machine and would afterwards take his meals. He stated that on return, the deceased told about the threat having been given that something ominous would happen (Aaje kaink kalu thashe), without mentioning who stated so. In the complaint (Exh. 8), PW-1 mentioned that it was the appellant who had so stated.
6.1.1 He stated that it used to take about one and half hour to go to his house from the field and takes 10-15 minutes for reaching the canal from the petrol pump. He stated that he had gone to his house to take meals around 9 p.m. and returned at around 9.30 p.m., but thereafter in the cross examination he stated that he had gone to his house at around 10.30 p.m., spent half an hour there in taking meals and came back soon. He then stated that on return, he went straight to the petrol pump for the purpose of applying grease. In the cross examination and also in the complaint, however, he stated that he had gone to the petrol pump to smoke beedi.
6.1.2 According to PW-1, on return from the petrol pump when he reached to the site of the machine, he saw the deceased Ramanbhai lying in bleeding condition and struggling against death, moving his body restlessly. He was unable to raise his hands. PW-1 asked as to what had happened, but the victim was unable to speak. According to PW-1, the victim pointed towards the cabin. He also deposed that he had seen the appellant running away and heard noise of throwing of some iron article in the nearby gutter. He denied that he informed his master Yunusbhai on phone, but then stated that from the petrol pump he telephoned at around 10.30 p.m.
6.1.3 It was unequivocally deposed by PW-1 that it was totally dark at the site of the incident and it was not possible to identify any person immediately. In order to identify somebody, one had to use torch. He thereafter denied that the deceased was lying near the canal and stated that he was lying near the shop of Babubhai, which is situated on the left of three cross roads. Admittedly, there was no one else at the place of incident when PW-1 saw the deceased.
6.2 The evidence as to the actual place where the victim was assaulted and done to death is also highly shaky. In his complaint, PW-1 mentioned that the injured was lying near the cabin of the appellant, whereas in his evidence he stated that the injured was found lying near the shop of Babubhai, and then stated that he was lying near the canal. The panchnama (Exh.13) mentioned that the distance between the canal and the cabin is about 71 feet. The map of the place (Exh.27) prepared by Circle Inspector (PW-5) is on record. The conduct of the complainant PW-1 post the incident is also dubious. His claim of having gone to the petrol pump after taking his meal and returning from his house does not appear to be in natural course, the evidence as to his purpose of going to the petrol pump being contradictory.
6.3 Another circumstance, which raises serious doubts about PW-1 having seen the appellant running away and about seeing the victim lying there pointing towards the cabin, is that admittedly it was dark and the time was around 10.00 p.m. as per the prosecution case. It is not believable that in such darkness PW-1 could have seen what he described in his evidence. The evidence showed that the victim was lying in such a state in bleeding condition that he could not have raised his hand. It is highly improbable that the victim in such condition could have pointed towards the cabin, as deposed by PW-1. His claim that he saw the appellant running away from the place does not inspire confidence in view his own evidence in which he unequivocally stated that it was so dark that one could neither see nor identify anybody. The prosecution case is that he saw the appellant running away, heard the noise of something being thrown in the gutter, and then it was in light of torch that he found the victim in the injured condition. Thus, PW-1 proved himself to be a wholly unreliable witness.
6.4 The weapon recovered was a scythe (dhariya). The nature of injuries are found in the P.M. Note (Exh.46) and were described also by Dr.Anilkumar Bhagwat (PW-14 Exh.44). Surprisingly, the blood-group of the blood found on the clothes of the appellant and that of the blood on the supposed weapon were found to be different.
6.5 Yet another inexplicable fact came out from the evidence of Narvatsinh Bariya (PW-11 Exh.30), PSI, Aamod police station, who registered the complaint. He admitted that he took the complaint of PW-1, but before that he had not registered information of offence received on the phone and he did not have the telephonic information register, wherein the information of cognizable offence was usually registered. It was not done in the present case.
6.6 Yunus Mohamad Patel (PW-7 Exh.22), the transporter and employer of the deceased and PW-1 deposed that he had received a phone call from the petrol pump, but did not clarify as to who had called, and further stated that PW-1 told him that the appellant had killed Ramanbhai. According to him, it was PW-1 who had engaged the deceased as daily labourer. The evidence of witnesses PW-8 (Exh.24), PW-9 (Exh.25), PW-12 (Exh.35), PW-13 (Exh.36) and PW-14 (Exh.37) being the home guards on duty at the petrol pump, PW- 15 (Exh.38), the driver of the jeep at the petrol pump and PW-16 (Exh.39) who had come to take petrol, are of no relevance as they only stated that they came to know about the incident from PW-1 and did not have any personal knowledge.
6.7 The nature of evidence discussed above has to be considered in the context of plea in defence that it was the complainant (PW-1) who had murdered the victim and then successfully managed the show. Sumanben Ramanbhai, wife of the deceased (PW-4 Exh. 19), though declared to be hostile witness, positively stated that,: “it is true that only Arvindbhai had killed her husband”. The appellant has, in his statement under Section 313 of the Code of Criminal Procedure, 1973 stated that he was innocent, was falsely implicated and that as two servants of Yunusbhai namely Arvindbhai and Ramanbhai had quarreled with each other, Arvindbhai had killed Ramanbhai.
6.8 The prosecution failed to establish by any evidence any motive on part of the appellant. In a case like the present one, where the evidence is only circumstantial, motive assumes importance. The absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Pannayar vs. State of Tamil Nadu (2009) 9 SCC 152).
6.9 In Siddharth Mohanlal Sharma Vs. South Gujarat University [1982 (1) GLR 233] this Court has observed that “no evidence does not merely signify total dearth of evidence, evidence which does not reasonably support the conclusion is also comprehended within the meaning of the said expression. In other words, where there is complete lack of evidence and case where the evidence, if any, is incapable of rationally leading to the conclusion reached, are both treated on a par so far the applicability of the rule of “no evidence” is concerned.” In criminal trial, disconnected and incomplete chain of circumstantial evidence stands at par with 'no evidence', since from the evidence on record it is not possible to establish the guilt on part of the accused.
7. From the evidence on record of the trial Court and from the critical reading thereof, conviction on the basis of circumstantial evidence cannot be sustained. The Supreme Court has, in G.Parshwanath Vs. State of Karnataka [AIR 2010 SC 2914] laid down that, if the cumulative effect of all the proved facts, each one of which should reinforce the conclusion of guilt, and the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, then only the conviction would be justified.
8. The trial court has failed to appreciate the evidence in its cumulative effect. It has failed to appreciate that each one of the incriminating circumstance on which the prosecution case was founded was required to be proved in such a manner that links in the chain of circumstances were intact and complete. The trial court rested heavily on the evidence of PW-1 and the events narrated by him, illogically connecting them with injuries and the weapon, when the evidence of PW-1, as highlighted above, suffered from serious discrepancies and was unworthy of any credence. The trial court then proceeded to hold that evidence of PW-1 was supported and corroborated by evidence of home-guards on duty at the petrol pump, describing them as independent witnesses even as they did not have any independent knowledge of the offence except what was told to them by PW-
1. Thus, their evidence as regards the incident was only hearsay. When PW-1 was not found worthy of and credence, hearsay evidence based on such discredited evidence would entirely lose its evidentiary value. The reasoning of the trial court is compounding the errors of appreciation.
9. In the facts and for the reasons discussed hereinabove, the chain of circumstances leading to the proof of commission of offence by the appellant is not established by the prosecution. Instead, the appellant is entitled to acquittal on account of total lack of evidence against him and a totally inapt investigation and prosecution pursued against him. It is unfortunate that the appellant has already undergone nearly nine years of imprisonment by now while the investigation officer may not now be held at all accountable for very obvious and serious lapses on his part in properly investigating the offence and bringing the whole truth before the Court by cogent and reliable evidence in the case of a capital crime.
10. In the result, the appeal succeeds. The judgment and order dated 13th February 2004 of the Fast Track Court No.3, Bharuch in Sessions Case No.25 of 2003 and the conviction of the appellant recorded therein are hereby set aside. The appellant shall be set at liberty forthwith, if not required to be detained in connection with any other case, after his executing personal bond in the sum of Rs.5,000/- with one surety in the like amount, in terms of the provisions of Section 437A of Cr.P.C.
[D.H.WAGHELA, J.]
Amit
[N.V. ANJARIA, J.]