IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 643 of 2007 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================== =============== RAMESHBHAI HAJABHAI CHACHIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================== =============== Appearance :
MRS REKHA H KAPADIA for Appellant(s) : 1,MR PB GOSWAMI for Appellant(s) : 1, MR. K.P. RAVAL, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================== =============== HONOURABLE THE ACTING CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :13/07/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B. PARDIWALA) The present appeal is directed against judgment and order dated August 6, 2005 passed by the Presiding Officer, Third Fast Track Court, Porbandar in Sessions Case No. 17 of 2004, convicting the accused-appellant for the offence of murder punishable under Section 302 of IPC and for the offence of robbery with attempt to cause death or grievous hurt, punishable under Section 397 of IPC and thereby sentencing the accused-appellant to undergo imprisonment for life. While convicting the accused-appellant for offence under Section 302 of IPC and imposing life imprisonment, the trial Court also ordered payment of fine of Rs. 500 and in event of default of payment of such fine, further simple imprisonment of 2 months was ordered. In the same manner, while convicting the accused-appellant for the offence punishable under Section 397 of IPC and while imposing sentence of 7 years rigorous imprisonment, fine of Rs. 1,000/- came to be imposed and in event of default of payment of fine, further simple imprisonment of two months was ordered.
2. The case of the prosecution in a nutshell be summed up thus:-
2.1 Deceased Amarmuni Bapuji was a Mahant (Pujari) of Mojeshwar Hanuman Temple situated at village Roghada of District Porbandar. At the time of incident, deceased was aged about 90. On 3rd of February, 2004, P.W 1 Bharatbhai lodged a First Information Report at Kutiyana Police Station, stating that the deceased who was a pujari of Mojeshwar Hanuman Temple used to frequently visit their village and used to even visit the house of the first informant. On 31st of January, 2004, the deceased had come to the house of the first informant at around 7 'O Clock in the evening and also had food at the house of the first informant. After having food the first informant asked his elder brother Ashok Rambhai to go and drop the deceased at the temple. Accordingly, the elder brother of the first informant named Ashok accompanied the deceased and dropped him at the temple. On the next day which was a Sunday, Ashok went to the temple with the tiffin for the deceased and on reaching the temple he found that the room in which the deceased was residing was locked and therefore, Ashok returned home with the tiffin. When Ashok had come to the temple on the previous night of Saturday to drop the deceased, at that point of time the accused-appellant who was serving as one of the employees of Gram Rakshak Dal was present with other employee named Hamir Karna. Another person named Mahesh was also present at the temple and up to earlier morning of the next day the deceased was very much present at the temple. This was conveyed by the accused to the first informant. On the next day i.e. on Sunday as the door of the part of the temple where the deceased was residing was found locked, the first informant thought that the deceased must have gone somewhere and therefore, did not inquire much in this regard. On Monday the first informant tried to inquire by calling upon at the temple on telephone but there was no reply. The first informant thought that since deceased was not keeping well, he must have gone to a doctor. Even thereafter for two days the whereabouts of deceased was not known and therefore, the father of the first informant asked the accused-appellant to inquire about the whereabouts of the deceased. The accused-appellant is said to have come to the temple and took out keys which were placed beneath a pillow and on opening the door, found that the deceased was lying in a dead condition on his bed. The accused-appellant is said to have rushed to the agricultural field of the first informant and informed about the same. On learning this from the accused appellant, the first informant in company of the accused- appellant herein, one Kana Bhima and Dinesh Bikha reached at the temple and saw that the deceased was lying dead in his room and had sustained injuries which appeared to have been inflicted by a hard and blunt object. They found blood on the bed. Thereafter, Police was informed about the incident. In the FIR it was stated that Amarmuni Bapu, the deceased has been done to death by some unknown person by inflicting blows on the head with a hard and blunt object any time between 1st of February, 2004 and 3rd of February, 2004. The first informant did not express any doubt on any particular person at the time when he gave his first information report. The first information report which is at Exh.10 was registered at Kutiyana Police Station at 11 hours on 3rd February, 2004.
2.2 On the strength of the FIR which was lodged by the first informant, Police started investigation and upon completion of the investigation, found that the accused-appellant who was serving as one of the employees of the Gram Rakshak Dal and who was posted at the temple to lookafter the deceased, caused the death of the deceased by inflicting blows on the head and other parts of the body with an axe with the sole intention of committing robbery of the valuables possessed by the deceased.
2.3 The Investigating Officer filed chargesheet against the accused-appellant in the Court of learned Judicial Magistrate First Class, Kutiyana, who in turn committed the case to the Court of Sessions under the provisions of Section 209 of the Criminal Procedure Code, as all the offences with which the accused appellant was charged were exclusively triable by the Sessions Court.
2.4 On case being committed to the Court of Sessions at Porbandar, the trial Judge framed charge against the accused- appellant vide Exh.3 dated 11th June, 2004.
2.5 During the course of trial, prosecution examined the following witnesses:-
1. PW 1 Bharatbhai Rambhai Jadav vide Exh.9 (original first informant);
2. PW 2 Rambhai Bhurabhai Jadav vide Exh. 12 (father of the first informant);
3. PW 3 Dineshbhai Bikhabhai Mehta vide Exh. 14 (witness);
4. PW 4 Ashokbhai Rambhai Jadav vide Exh. 16 (brother of the first informant);
5. PW 5 Jinabhai Punjabhai vide Exh. 18 (witness);
6. PW 6 Kanabhai Bhimabhai Jalu vide Exh.20 (panch of the scene of offence panchnama);
7. PW 7 Bikhabhai Hirabhai Mehta vide Exh. 22 (panch witness of the discovery panchnama of weapon);
8. PW 8 Aalabhai Rambhai Mehta vide Exh.25 (panch witness of the discovery panchnama of weapon);
9. PW 9 Rameshbhai Lilabhai Odedhara vide Exh.26 (panch witness);
10. PW 10 Desabhai Burabhai vide Exh. 31 (panch witness of the discovery panchnama of robbed valuables);
11. PW 11 Batukdas Ranchhoddas vide Exh. 33 (panch witness of the discovery panchnama of robbed valuables);
12. PW 12 Dr. Prakash Berumal Trilokani vide Exh. 70 (Medical Officer);
13. PW 13 Hamirbhai Karabhai vide Exh. 72 (witness)
14. PW 14 Tapubhai Pithabhai vide Exh. 74 (Police Constable);
15. PW 15 Vikrambhai Jayantbhai Vyas vide Exh. 76 (one of the Investigating Officers);
16. PW 16 Indrasinh Natwarsinh Jadeja vide Exh. 77 (second Investigating Officer).
2.6 The prosecution also relied upon documentary evidence, the details of which are not referred to in this judgment as the same can be looked into from the judgment and order of the trial Court as contained in paragraph 7.
2.7 Upon appreciation of evidence led by the prosecution as well as by the defence, trial Court came to the conclusion that prosecution has been able to prove the case against the accused-appellant beyond reasonable doubt and accordingly held the accused-appellant guilty of the offence of murder punishable under Section 302 of IPC as well as for the offence under Section 397 of IPC. The accused-appellant came to be sentenced to imprisonment for life and hence, this appeal.
3. Record reveals that the accused-appellant was not able to engage an Advocate to defend himself and had requested the trial Court to provide him with legal aid and accordingly, one learned Advocate Shri D.H. Modhwadiya was appointed to defend the accused-appellant.
4. It appears that the appeal before this Court was also filed through legal aid and accordingly, Ms. Rekha Kapadia, learned Advocate appointed by the Legal Aid Committee conducted the appeal before us on behalf of the accused-appellant.
5. We have gone through the oral evidence of each and every witness. We would like to reproduce in brief as to what each of the witnesses have deposed, so as to examine as to whether the conviction deserves to be confirmed or not.
5.1 PW 1 Bharatbhai Rambhai Jadav, Exh.9, the first informant has deposed that the deceased Amarmuni Bapu who was the Mahant of the Hanumanji Temple was very much known to the entire family and the deceased used to frequently visit their house. On 31st January, 2004, deceased had come to the house of this witness for a condolence visit as the grandmother of this witness had passed away. According to this witness, deceased had joined the funeral procession and thereafter in the afternoon the deceased left and again came back to the house of this witness in the evening. At around 7' O Clock after having food, the deceased was dropped at the temple by the brother of this witness named Ashokbhai. On the next day, the brother of this witness named Ashokbhai went to the temple with a tiffin for the deceased at around 10' O Clock in the morning and found that the temple was locked. In the evening Ashok once again visited the temple with the tiffin but found that the temple was locked. On the next day, the father of this witness tried to call up on telephone at the temple but there was no reply. On 3rd February, 2004, the accused-appellant came at the agricultural field of this witness and informed the witness that some one has killed Bapu. Thereafter this witness came at his house and his father informed the Police on telephone. Everybody reached at the temple including the Police. In the room in which Bapu was residing, his dead body was lying on a cot and it was noticed that Bapu had sustained head injuries. There was blood on the floor. The first information report was proved through this particular witness. This witness has further deposed that he knows the accused-appellant as he hails from the same village. He has also deposed that the accused-appellant was serving in Gram Rakshak Dal and most of the time his duty was at the temple and check-post. There was no other person to look after Bapu but the accused-appellant most of the time used to help Bapu in his household work. It is the say of this witness that the accused used to cook food for Bapu, used to clean the temple and also used to get medicine if Bapu would fall ill. This witness has further deposed that he has no idea as to what were the belongings with Bapu. There are idols of Lord Hanuman and Lord Shankar in the temple. Bapu used to wear a necklace made of Tulsi. According to this witness, Bapu used to wear a gold chain also and a gold ring. Bapu used to wear a wrist watch. This witness was shown the articles like gold ring, watch, coins which were identified by this witness to be the valuables of Bapu. He has also deposed that the axe which is being shown to him is the same which the Police had seized from a Vav. This witness has further deposed that he knows that Rs. 37,500/- in cash were recovered from the house of the accused-appellant. He has no idea as regards the motive for the commission of the offence. In his cross-examination this witness has deposed that there is nothing specific to indicate that the articles which were shown to him were of Bapu. He has also deposed that since they were disciples of Bapu, they used to visit temple and in the same way Bapu also used to visit their house. Other persons of the village also used to visit the temple. A suggestion was put to this witness that as Bapu was aged about 90, he had become very cranky and his nature was quite erratic, to which this witness denied. He has deposed that when Bapu returned to the temple after paying condolence visit the accused-appellant was present and along with him one Hamir Kala and a person named Mahesh was also present at the temple. This witness has further stated that they learnt about the death of Bapu after 3 days from his death. He has also said that he has not named any person in his FIR as a suspect.
5.2 Prosecution has examined PW 2 Rambhai Bhurabhai Jadav Exh. 12. He is the father of the first informant. This witness in his earlier part of the deposition has deposed on the same line with that of his son PW 1. However, he has deposed that he tried to call up at the temple on the telephone, but as there was no reply, no further enquiry as regards the whereabouts of Bapu was undertaken. However, thereafter the accused-appellant came at his house crying. He has deposed that the accused-appellant conveyed to him that Bapu is lying in a dead condition as could be seen through a window. This witness thereafter asked Kana Bhima, Jina Punja and Dinesh Bikha to immediately reach the temple along with the accused- appellant. According to this witness, Dinesh Bikha called him up from the telephone of the temple and informed that Bapu was lying in a dead condition. This witness thereafter called up Kutiyana Police Station and informed about the incident. PSI of Kutiyana Police Station asked the witness to come to the temple and accordingly, this witness reached the temple. PSI enquired about the identity of the dead body and therefore, this witness identified the dead body to be that of Bapu before the PSI. This witness found that there was blood oozing from the body of Bapu and blood was also found on the cot on which he was lying. The dead body was thereafter taken out of the room and a panchnama was drawn to this effect. This witness has deposed that except the accused-appellant, no other person used to come for the services of Bapu. This witness has further deposed that thereafter the dead body of the Bapu was taken to the hospital and the presence of the accused- appellant was very much there till the time the dead body was taken to the hospital. This witness has deposed that however, as soon as the PSI asked to call for a Dog squad, the accused- appellant on hearing this surreptitiously left the place. PSI enquired about the accused-appellant with the witness but it was not known as to where the accused-appellant had gone away. At around 4 'O Clock, the accused-appellant called up at the telephone number of the temple, which was picked up by this witness and at that point of time the accused-appellant is said to have informed this witness that he is returning to the temple with four or five other Bapu. This witness is said to have told the accused-appellant to reach the temple at the earliest. When the accused-appellant was on his way from Junagadh, PSI of Kutiyana check-post picked him up. This witness has further deposed that Bapu used to wear two chains of gold, few rings and one rudraksha chain made in gold. This witness has deposed that he has no idea as to why Bapu was done to death. The cross-examination of this particular witness is not of much significance, as to all that has been stated in his cross-examination is that in his Police statement he had not stated regarding the fact that accused had called up from Junagadh. Few other suggestions put to this witness have been denied.
5.3 Prosecution has examined PW 3 Dineshbhai Bikhabhai Mehta, Exh. 14. This witness is a resident of village Roghada and had gone to the house of Rambhai Bhurabhai Jadav (PW 2) to pay his condolence on the demise of mother of Ramjibhai Bhurabhai. When this witness was at the house of PW 2 Ramjibhai, accused-appellant is said to have come over there and informed Ramjibhai that Bapu is lying in his room in a dead condition and seems to have sustained injuries on his head. This witness has further deposed that Rambhai Bhurabhai Jadav PW 2 told him to reach the temple along with 3-4 other persons. This witness reached the temple and on reaching found that Bapu was lying dead on his cot and was injured. He was lying in a pool of blood. This witness thereafter called up Rambhai Bhurabhai Jadav (PW 2) on telephone. According to this witness, Rambhai Bhurabhai Jadav thereafter called the Police. He has deposed that the first information report as regards the incident was lodged by son of Rambhai Bhurabhai Jadav. He has deposed that he has no idea as to who committed the murder of Bapu. He had no doubts on any particular person. He has deposed that the Police told him that it may be the accused-appellant involved in the commission of the crime. This witness has further deposed that the Police has recorded his statement. He has admitted that many people visit the temple and the place of incident is also at the temple. He has also admitted the fact that due to old age of Bapu his nature had become cranky and erratic. He has deposed that after 3 days from the date of incident, the accused-appellant talked about the incident and that is how he learnt about the same. He has no idea as to who had visited the temple during the period of 3 days. He has denied to the suggestion put by the defence Counsel that he is deposing falsely against the accused-appellant as the first informant happens to be the close relative of the witness.
5.4 Prosecution examined PW 4 Ashokbhai Rambhai Jadav, Exh. 16. This witness happens to be son of Rambhai Bhurabhai Jadav and brother of first informant Bharatbhai. This witness has deposed that Bapu had come to his house to pay his condolence on the demise of his grandmother. He has deposed that thereafter he accompanied Bapu and left him at the temple. He has deposed that on the next day he did not go at any place. He has no idea as to when accused-appellant came to his house and on which date. All that he has deposed is that when the accused-appellant came at his house and informed his father Rambhai that Bapu is lying in a dead condition at the temple, at that point of time other persons named Dinesh Bikha, Kana Bikha, Jiva Punja were also sitting. His father asked the persons who were there at his house to go and enquire at the temple. They found that Bapu was lying in a dead condition. This witness has deposed that he has no idea as to why Bapu was done to death and he has no personal knowledge about anything relating to Bapu. It appears from the evidence of this witness that he has not supported the case of the prosecution to a certain extent and was declared hostile.
5.5 Prosecution examined PW 5 Jinabhai Punjabhai, Exh. 18. This witness was present at the house of PW 2 Rambhai on 2nd March, 2004 to pay his condolence on the demise of mother of Rambhai. Accused-appellant came at the house of Rambhai and informed that Bapu had been murdered. Rambhai informed about the same to the Police Station. He has deposed that on arrival of the Police and on calling for the dog squad, the accused-appellant slipped away from that place. He visited the place where Bapu was lying. He did not see at which places injuries were caused to Bapu. This witness has also not supported the case of the prosecution and was declared hostile.
5.6 Prosecution also examined PW 6 Kanabhai Bhimabhai Jalu Exh.20. This witness had gone to the house of Rambhai (PW 2) to pay his condolence on the demise of the mother of Rambhai. He has deposed that when he was there at the house of Rambhai, the accused came over there crying and informing that Bapu was lying in a dead condition. Thereafter this witness and others went to the temple and at the temple, the accused showed that Bapu was lying in a dead condition. The door of Mandhi (a place in the temple allotted or used for the residence of Pujari) was open. Mandhi was opened by the accused with the keys. The accused informed about the keys saying that the keys were beneath the pillow of Bapu's cot and he opened the lock with the said keys and found that Bapu was in a dead condition. There were three wounds on the head of the Bapu. This witness has deposed that they did not entertain any doubt against involvement of any particular person. The accused was a man of confidence of Bapu and was serving Bapu past two years. The accused did not discuss anything as regards the incident in presence of this witness. The accused handed over the belongings and valuables of Bapu to this witness. Rambhai also in the meantime arrived at the temple. Rambhai called the Police and Police reached the temple. Police asked the other members of the team to take the body of Bapu for postmortem. On the PSI asking to call for dog squad, the accused slipped away from that place. Bharatbhai (the first informant) lodged the report regarding the incident at the Police Station. When the first information was being lodged, Bharatram Jadav, Ashokram and Jine Punja were present. They did not entertain doubt as regards complicity of anyone in the crime. Police interrogated the accused and he confessed about his involvement in the crime. The accused handed over Rs. 38,500/- in cash and few gold ornaments like chain, ring, pin to the Police. This witness has deposed that the valuables were recovered from the house of the accused. As a matter of fact, this witness, PW 6, is a panch witness of scene of occurrence. As he did not prove the contents of the panchnama, he was declared hostile.
5.7 Prosecution examined PW 7 Bikhabhai Hirabhai Mehta Exh. 22. This witness is a panch witness of discovery panchnama of the weapon. This witness did not support the case of the prosecution and failed to prove the contents of the discovery panchnama and accordingly, was declared hostile.
5.8 Prosecution examined PW 8 Aalabhai Rambhai Mehta Exh.25. This witness is also a panch witness of the discovery panchnama of the weapon said to have been used in commission of the offence. This witness was also declared hostile as he did not support the case of the prosecution and failed to prove the contents of the panchnama.
5.9 Prosecution examined PW 9 Rameshbhai Lilabhai Odedhara Exh.26. This witness is a panch witness. This witness was also declared hostile.
5.10 Prosecution examined PW 10 Desabhai Burabhai Exh.
31. This witness is a panch witness of the discovery panchnama of the valuables discovered at the instance of the accused. This witness was declared hostile as he did not support the prosecution and failed to prove the contents of the panchnama. PW 11 Batukdas Ranchhoddas Exh. 33, the second panch witness of the discovery panchnama of the valuables was also declared hostile as he did not support the case of the prosecution.
5.11 Prosecution examined PW 12 Dr. Prakash Berumal Trilokani Exh. 70. This witness is an expert witness and he was examined by the prosecution to prove the contents of the Postmortem report. This witness performed the postmortem on the body of the deceased on 3rd February, 2004. This witness noticed the following injuries on the body of the deceased:
1. 9cm long incised wound starting from eye laterally extending downwards towards right side of the nose;
2. Incised wound 9cm long above 1.5 cm to the first injury and on right eyebrow and right temporal region with a fracture of the bone deep upto the brain;
3. The other injuries were co-extensive with the above two injuries with fracture right upto the brain.
This witness has deposed that over and above the injuries referred to above, there was one another incised wound vertical and 3 cm in length on the right ear. On internal examination of the dead body it was found that there was fracture in the skull, brain was congested, lungs were congested, there was accumulation of dark coloured blood in the left and right chamber of the heart, the food pipe and the wind pipe were also congested. This witness deposed that all the injuries were ante mortem and the cause of death was due to injuries on the head and shock. This witness was shown the weapon of offence, namely, axe with one side of the blade sharp and on being shown, he opined that the injuries could be sustained with the weapon in question.
5.12 Prosecution examined PW 13 Hamirbhai Karabhai Exh. 72. This witness at the relevant point of time was serving at the temple along with the accused. His duty on 31st January, 2004 and 1st February, 2004 was during night hours and the accused was also along with him on duty. According to this witness, he was not on duty on 31st January, 2004 as there was a marriage ceremony of his sister and he had gone to distribute invitation cards. He has deposed that on that day the accused was on duty and he had no idea whether accused had actually gone to the temple or not. He has deposed that on 1st February, 2004 he had met the accused and thereafter, the accused did not meet him. He has no idea as to who killed Bapu but he learnt about murder of Bapu. He has no doubts on any particular person.
5.13 Prosecution examined PW 15 Vikrambhai Jayantbhai Vyas Exh. 76; He is the first Investigating Officer. This officer recorded the first information report and conducted some part of the investigation. Thereafter, under the orders of the superior authority he handed over the investigation to CPI (Circle Police Inspector).
5.14 Prosecution examined PW 16 Indrasinh Natwarsinh Jadeja Exh. 77. He is the second Investigating Officer who took over the investigation under the orders of the Dy. S.P. This witness arrested the accused. This witness has deposed that he drew panchnama of discovery of the weapon which was used by the accused in commission of the offence. He has deposed that he found that the axe which was discovered at the instance of the accused had few blood stains. He has deposed that this axe was discovered in the presence of the panchas. He has further deposed that he also drew a panchnama of the discovery of the valuables which were stolen by the accused at the time of commission of the offence, in presence of the panchas as the accused on his own free will and volition wanted to show the place where he had concealed the valuables. The accused was taken on remand. The muddamal articles were sent to the FSL. Prosecution thereafter proved the contradictions in the form of omissions in the statement of the witness.
6. On overall reappreciation and revaluation of the entire evidence on record oral as well as documentary, the picture that emerges may be summed up thus:
The accused was serving at the temple as one of the members of the Gram Rakshak Dal. The accused used to take care of the deceased past two years from the date of the incident and was considered to be very close and man of confidence of the deceased. On 31st January, 2004, the deceased had come to the house of the first informant to pay his condolence on the demise of the mother of the first informant and after having food at the house of the first informant, he left for the temple in company of Ashok, the brother of the first informant. On the next day, Ashok is said to have gone to the temple with tiffin for the deceased, but found that the place where deceased was residing was locked. This part of the evidence is actually not supported by Ashok himself in his evidence. It appears that for two days thereafter the whereabouts of the deceased were not known to any person. Quite abruptly after two days the accused is said to have come to the house of the first informant and informed that Bapu is lying in a dead condition and seems to have sustained injuries on his head. Thereafter, the first informant, his father and others reached the temple and found that Bapu was in a dead condition lying on a cot with blood all around the place. It also emerges from the evidence on record that the door which was found locked was opened by the accused with a key which according to the prosecution was taken out by the accused beneath the pillow and that is how the door was opened. This part of the evidence appears to be very hazy and none of the witnesses is clear as to how the door was opened and from which place the accused took out the key. Thereafter, Police was called and no sooner had the Police Officer talked about calling for a dog squad than the accused was said to have surreptitiously slipped away from the temple premises. After few hours, the accused is said to have called up Rambhai on telephone informing Rambhai that he is returning to the temple with 4 to 5 Bapu. Rambhai is said to have asked the accused to return immediately and as per the case of the prosecution when he was on his way, he was apprehended and was arrested. It appears that thereafter as per the case of the prosecution he voluntarily made a statement before the panchas that he would like to show the weapon with which he committed the crime and the place where it was hidden. He is also said to have voluntarily disclosed the place where he had concealed the valuables robbed at the time of commission of the offence. This is the basic substratum of the prosecution case.
7. The entire case hinges on circumstantial evidence. The prosecution relied upon the following circumstances:-
i) The accused was posted at the temple as one of the members of the Gram Rakshak Dal to look after the deceased who was a Pujari of the temple.
ii) The accused was very much known to the deceased as he used to prepare food, wash utensils, clothes etc. of the deceased;
iii) Though the accused was posted at temple to look after the deceased, for two days he kept silence as far as the whereabouts of the deceased was concerned;
iv) The accused came at the house of the first informant and informed one and all who were present that Bapu had been done to death and was lying on his cot with injuries on his head;
v) The accused is said to have opened the door with a key which he took out from beneath a pillow of the cot of Bapu;
vi) The accused slipped away surreptitiously from the temple premises no sooner had the Police officer thought of calling for a dog squad and thereafter, he was not available for few hours. While returning on the same day from Junagadh, he was apprehended and arrested.
vii) The accused voluntarily pointed out the place where the weapon of offence was concealed. Accused also pointed out the place by voluntarily making a disclosure in that regard where the valuables robbed at the time of commission of offence were concealed.
viii) Medical evidence wherein the doctor has opined that the injuries which were sustained by the deceased were possible with the axe which was discovered at the instance of the accused.
8. We have heard Ms. Rekha Kapadia, learned Advocate appearing on behalf of the accused-appellant and Mr. K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State.
8.1 Ms. Kapadia, learned Advocate appearing for the accused submitted that there was no direct evidence against the appellant and the trial Court had committed gross error in convicting the appellant on the basis of highly unbelievable insufficient and unconvincing evidence led by the prosecution;
8.2 Ms. Kapadia submitted that prosecution had failed to prove the discovery of the weapon of offence as well as the discovery of the valuables alleged to have been robed by the appellant at the time of commission of the crime, as all the panchas turned hostile. According to her, since the independent panchas did not support the case of the prosecution, conviction could not have been based solely on the evidence of the investigating officer as far as discovery of the weapon of offence and discovery of valuables at the instance of the accused is concerned;
8.3 Ms. Kapadia further submitted that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidences. The circumstances cannot be on any other hypothesis other than one of guilt of the accused;
8.4 Ms. Kapadia also submitted that suspicion, however, grave may be, cannot be a substitute for proof.
8.5 Ms. Kapadia also submitted that there are lot of discrepancies in the evidence of the witnesses inasmuch as that though three witnesses are related to each other, namely, the first informant, his father and his brother have given inconsistent version so far as the accused disclosing about Bapu being done to death is concerned.
9. On the other hand, learned APP Mr. Raval submitted that trial Court is quite justified in convicting the accused as prosecution has successfully established all the pieces of incriminating circumstances by leading reliable and clinching evidence. Mr. Raval further submitted that though the panch witnesses of both the discovery panchnama, namely, weapon as well as valuables have turned hostile, the trial Court was justified in relying upon the evidence of discovery on the strength of the evidence of the investigating officer who recovered the material objects. He submitted that the evidence as to recovery need not be rejected on the ground that seizure witnesses failed to support the prosecution version.
9.1 Mr. Raval further submitted that the circumstance of the accused not informing anyone as regards the whereabouts of the deceased for two days though being in charge of the temple, more particularly to look after the deceased, itself points towards the guilt of the accused. Mr. Raval submitted that for two days the accused claimed to be ignorant as regards the whereabouts of the deceased and abruptly after two days comes and informs the people that Bapu has been done to death. He submitted that the circumstance of accused taking out key placed beneath the pillow on a cot itself goes to show that he is involved in the crime because if the accused knew about the key, then he could have opened the same no sooner he found that the door was locked and the whereabouts of the deceased was not known.
9.2 Mr. Raval lastly submitted that prosecution is not required to meet with any and every hypothesis put forward by the accused. He submitted that proof beyond reasonable doubt is a guideline, and not a fetish. He submitted that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, conviction can be maintained.
9.3 He submitted that the evidence of the prosecution witnesses is cogent, clear and satisfactory and this Court shall be slow to interfere in the well reasoned and well merited judgment of the trial Court.
10. Before adverting to the arguments advanced by the learned counsel on both sides, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offence and the prosecution rests its case solely on circumstantial evidence. In a series of decisions it has been consistently held that when a case rests upon a circumstantial evidence, such evidence must satisfy the following tests:-
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhit Vs. State of Maharashtra (1982) 2 SCC 351: (AIR 1982 SC 1157).
11. Bearing in mind the above principles of law, we have scrutinized scrupulously and examined carefully the circumstances appearing in this case against the accused. We propose to deal with circumstance of discovery of weapon and discovery of the valuables as heavily relied upon by the prosecution first. It appears that the accused was arrested on 4th February, 2004 at 15.30 hours and arrest panchnama to that effect was also drawn which is Exh.44. On the very same day and at the very same hour it is the case of the prosecution that the accused stated before the Investigating Officer that on his own free will and volition he was ready to point out the place at which he has put the axe used in the commission of offence. The Investigating Officer for the purpose of discovery called two panchas and is said to have drawn the discovery panchnama thereby showing discovery of weapon at the instance of the accused. Both the panch witnesses i.e. PW 7 Exh.22 and PW 8 Exh.25 did not support the case of the prosecution and failed to prove the contents of the discovery panchnama of the weapon of offence. The question is as to what would be the evidentiary value of such a piece of circumstance sought to be relied upon by the prosecution, more particularly when two independent witnesses to the panchnama did not support the prosecution. The trial Court believed and placed reliance on this piece of evidence saying that though the panchas have turned hostile, the Investigating Officer in his evidence has said that the weapon was discovered in the presence of two independent panch witnesses on accused making a statement of disclosure. The Supreme Court in Modan Singh Vs. State of Rajasthan reported in AIR 1978 SC 1511 held that if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that the seizure witnesses do not support the prosecution version. While there cannot be any quarrel with this proposition of law, but still the requirement of law needs to be fulfilled before accepting the evidence of discovery and that is by proving the contents of the panchnama. The Investigating Officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law then in that case the prosecution may be justified in relying on such evidence and the trial Court may also accept the evidence. In the present case, what we have found from the deposition of the Investigating Officer PW 16 Exh.77 is that he has not proved the contents of both the discovery panchnamas and all that he has deposed is that as the accused was willing to point out the weapon of offence the same was recovered under a panchnama. Same is the statement so far as the discovery of valuables is concerned. We have minutely gone through this part of the evidence of the Investigating Officer and we are convinced that by no stretch of imagination it could be said that the Investigating Officer has proved the contents of both the discovery panchnamas. There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses have turned hostile and have not supported the prosecution. In order to enable the Court to safely rely on the evidence of the Investigating Officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the Investigating Officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.
12. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Phulukuri Kottaya Vs. Emperor - AIR 1947 PC 67, which have become locus classicus, in the following words:-
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed 'A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence" . This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
13. In the case of Narsinhbhai Dahyabhai Vaghela v.
State of Gujarat, reported in 1984(1) GLR 118, this Court observed thus :-
'.......When Panchnama was to be prepared accused was present and he stated that “he willingly shows a key”. This would only mean knowledge of the key and not the possession of the key. Possession and knowledge are two different aspects in law. For establishing possession the statement under Section 27 of the Indian Evidence Act would have “I have concealed a key or I have placed a key which I am willing to produce”. Unless it is an admitted fact that it is he who has placed it possession cannot be imputed to him. Production can impute knowledge. If a person has a knowledge that a particular thing is lying at a particular place, that will only establish that he knew that at a particular place a particular thing is lying. This would impute knowledge and not possession.”
14. In Dudh Nath Pandey v. State of U. P., AIR 1981 SC 911, the Apex Court took into consideration a very similar fact- situation and observed in paragraph 15 that, if the case is dependent on circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eye-witnesses was not of the standard required in cases dependent wholly on circumstantial evidence (as is the case here). Their Lordships observed that evidence of recovery of pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
15. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the Investigating Officer in his evidence, and also without proving the contents of the panchnamas, the trial Court was not justified in placing reliance upon the circumstance of discovery of weapon and discovery of cash and other valuables at the instance of the accused by solely relying on the evidence of the Investigating Officer.
16. Discovery evidence, by itself, is subsidiary and cannot sustain a conviction but where there is plenty of other evidence to sustain the prosecution case, discovery evidence may be treated as a valuable piece of corroborative evidence.
17. First, we are not at all convinced with this story, which has been put forward by PW 2 Rambhai and secondly, even if it is believed, the same would not help the prosecution in any manner. If the accused was guilty then he would not call up PW 2 Rambhai and inform him that he is on his way to the temple with 4 to 5 Bapu. There is no further clarification from PW 2 Rambhai as to which Bapus the accused was referring to and why the accused wanted those Bapus to come at the temple. Accused would not have returned to the temple within hours of his leaving the place of occurrence. It is a settled law that absconding by itself is not a conclusive proof of guilt and in a given case the circumstance of absconding if found to be reliable, could be used with the other circumstances emerging on record. A person may abscond for number of reasons. Even if a person is innocent, out of sheer fear he may abscond. It is therefore difficult for us to accept this piece of evidence as one of the incriminating circumstances pointing towards the guilt of the accused.
Circumstance No.I, II & III.
18. It is an admitted position that the accused was serving in the Gram Rakshak Dal and was posted at the temple to look after the deceased. The evidence on record goes to show that he was serving for past almost two years and was looking after the deceased. Prosecution has tried to highlight that the accused being a close associate of the deceased knew everything about the deceased and therefore, with the intention of stealing the valuables of the deceased the accused committed the murder of the deceased. Prosecution has relied upon the circumstance of the accused coming at the house of PW 2 Rambhai and informing about the death of the deceased. According to the prosecution the accused saw through a window the dead body of Bapu lying on a cot. So far as this circumstance is concerned, there are contradictory versions of different witnesses. The first informant PW 1 Bharatbhai Jadav Exh.9 in his evidence deposed that on 3rd February, 2004, the accused came at his agricultural farm and informed him that somebody has killed Bapu. PW 1 Bharatbhai has also further deposed that thereafter he called at his residence and informed his father PW 2 Rambhai about the incident and thereafter, everybody reached at the place of occurrence. The father i.e. PW 2 Rambhai has a different story to narrate. As according to him the accused came at his house crying and informed that he saw from a window that Bapu was lying in a dead condition. PW 2 Rambhai has further deposed that he asked the people who had come to his house to reach the temple and ascertain as to what was the matter and he received a telephone call from temple made by Dinesh Bikha that Bapu was dead and thereafter the PW 2 informed Kutiyana Police Station from his residence telephone. Prosecution has also tried to bring in one more circumstance and that is the opening of the door by the accused with a key. Prosecution itself is not clear as to whether the accused saw Bapu through a window or he opened the door with a key said to have been taken out by the accused beneath a pillow of a cot. There is no evidence worth the name as to where the cot was lying and how the key was taken out by the accused which was beneath the pillow. So far as this circumstance is concerned, we have also considered the evidence of PW 6 Kanabhai Jalu Exh.20. This witness again has a different version to narrate. This witness was at the house of PW 2 when the accused came crying and informed PW 2 that Bapu was lying in a dead condition. This witness and others went to the temple and there accused is said to have shown Bapu lying in a dead condition. The door of Mandhi was open. According to this witness, Mandhi was opened with a key and it was the accused who told the witness that he got the key from the cot of Bapu, put beneath a pillow. We have noticed that this key has not been seized by the Police as a muddamal.
Circumstance No.IV
19. So far as the circumstance of accused surreptitiously slipping away from the premises of the temple no sooner the accused is said to have heard the Police Officer asking to call for a dog squad, can hardly be said to be a circumstance incriminating in nature. Even if it is believed that the accused was not available for few hours by itself would not suggest that since he had a guilty mind and apprehending arrest at the hands of Police, he left the temple premises. In this regard the evidence of PW 2 Rambhai Jadav Exh.12 needs to be appreciated. According to this witness the accused left the scene of occurrence no sooner had he heard the PSI asking to call for a dog squad. This circumstance perhaps could have raised doubts if the accused would not have been available for couple of days. However, in the present case the evidence is to the effect that when PSI enquired with PW 2 Rambhai as to where the accused has gone, the witness and other people could not trace the accused at that point of time. At about 4 'O Clock, the accused called up on the telephone of the temple, which according to PW 2 he received and the accused is said to have told PW 2 Rambhai that he was on his way to the temple with 4 to 5 Bapus. PW 2 Rambhai in turn told the accused to return at the earliest. When accused was on his way from Junagadh, he was apprehended by the PSI at Kutiyana check- post.
20. We are of the view that even if we believe that it was the accused who came and informed about the condition of Bapu first in point of time to the witnesses by itself would not go to show that he staged a drama after a period of two days from the actual commission of crime. We cannot ignore the fact that a temple is a public place and many people would be visiting the temple and since the time the whereabout of Bapu were unknown, many people must have visited the place. It is also not the case of the prosecution that the accused used to be at the temple for 24 hours a day. Under such circumstances, it is very difficult for us to accept such circumstances for the purpose of fastening the guilt of the accused. There is one more aspect of the matter. The trial Judge in his judgment has discussed this circumstance saying that Bapu was last seen on 31st January, 2004. Thereafter the whereabouts of Bapu were not known and it is only on 3rd of February, 2004 that the accused came and informed the witnesses about death of Bapu. Learned trial Judge while appreciating the evidence has observed that the accused was in service for all these days and the accused being a close associate of Bapu would have definitely known as to where Bapu has gone. According to the learned trial Judge, the fact that for 3 odd days the accused was not aware about the whereabouts of Bapu is unpalatable and therefore, according to the learned trial Judge this itself goes to show that the accused kept quiet for 3 days after committing crime and then all of a sudden informed about the same to the witnesses. This may cast a doubt, but suspicion however strong, cannot take place of the proof of the guilt of the accused. In the absence of any other strong circumstances emerging on record to connect the accused with the crime, the present circumstance would not carry the prosecution any further.
21. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of the apex Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. The Supreme Court in the case of Jaharlal Das Vs. State of Orissa, reported in (1991) 3 SCC 27 has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by the apex Court that there is a long mental distance between `may be true' and `must be true' and the same divides conjectures from sure conclusions.
22. We may indicate here that more the suspicious circumstances, more care and caution are required to be taken otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the Court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the trial Court in convicting the accused-appellant has been the result of the suspicious circumstances entering the adjudicating thought process of the trial Court.
23. In view of the foregoing discussions, we are of the view that the prosecution has failed to complete the chain of circumstances to hold the accused guilty of the crime beyond reasonable doubt and the trial Court was not justified in convicting accused appellant on surmises and hypothesis.
24. In the result, the appeal is allowed. The conviction and sentence of the accused appellant is set aside and he is acquitted of the charges framed against him. The accused appellant is ordered to be released forthwith, if not required in any other case.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B. Pardiwala, J.) */Mohandas