(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of the judgment and order rendered by Sessions Court, Gandhinagar at Kalol on 24th January 2006 in Sessions Case No. 68 of 2004. The appellant Manishkumar Kantilal Patel in Criminal Appeal No. 260 of 2006 was accused No.1 before the trail Court whereas respondents Manishbhai Harisinh Patel and Dharmendrakumar @ Dhaval @ Lalo Kantilal Patel in Criminal Appeal No.884 of 2006 were accused Nos.2 and 3 respectively before the trial Court. They all were tried for murder of Bhikhabhai Amratlal Patel allegedly committed by them on 14th March 2003 at Jantanagar Raw House, Kalol punishable under Section 302 read with section 34 and Section 201 read with Section 34 of IPC besides under Section 135 of the Bombay Police Act.
1.1 The trial Court, after considering the evidence by the impugned judgment, convicted appellant Manishkumar Kantilal Patel original accused No.1 for offence under Sections 302 and 201 of IPC both read with Section 34 of IPC and Section 135 of the Bombay Police Act.
2. For the first two offences he was sentenced to undergo life imprisonment and for offence under the Bombay Police Act he was sentenced to undergo SI for six months. He was given benefit of set off and all sentences were ordered to run concurrently. The trial Court, however, acquitted original accused Nos.2 and 3 Manishbhai Harisinh Patel and Dharmendrakumar @ Dhaval @ Lalo Kantilal Patel respectively of the charges levelled against them.
3. Accused No.1 has, therefore, preferred Criminal Appeal No.260 of 2006 whereas the State has preferred Criminal Appeal No. 884 of 2006 to challenge acquittal of original accused Nos.2 and 3. Since both these appeals arise out of the same judgment and order, they have been heard together and are decided by this common judgment. Appellant in Criminal No. 260 of 2006 and the respondents in Criminal Appeal No. 880 of 2006 are addressed by their original status before the trial Court in this judgment.
4. All the three accused persons are represented by learned advocate Mr. Mehul Sharad Shah whereas the State is represented by learned Additional Public Prosecutor Mr. K. L. Pandya.
5. Learned advocate Mr. Shah submitted that the prosecution case depends on circumstantial evidence and the link between accused and the offence is not appropriately established by the prosecution. Mr. Shah submitted that the evidence would show that there were two possibilities, one that the deceased suffered accidental injuries and the accused took him to hospital, and the second is what is alleged by the prosecution. If there are two possibilities emerging, the trial Court ought to have given benefit of doubt to accused No.1.
5.1 Mr. Shah submitted further that entire set of panch witnesses has not supported the prosecution case and therefore the recovery, discovery allegedly made by accused and the facts noticed at the place of incident cannot be accepted at face value. Mr. Shah submitted further that important witnesses have been dropped by the prosecution though objected to by the defence. The prosecution has, by dropping these witnesses, kept back the truth from coming before the Court. The incident is alleged to have occurred in broad daylight where there is lot of population but no independent witness has supported the prosecution case. The injured was taken to Dr. Atulbhai first, who has not been examined by the prosecution. One Shaileshbhai Barot was the person who accompanied the deceased to the Doctor has also not been examined by the prosecution. Mr. Shah submitted that cross examination of the Investigating Officer would show that according to some witnesses the deceased suffered injuries in an accident. As per the prosecution case the deceased had left home on a motorcycle and had reached the place of accused no.1 on motorcycle but the investigating agency has not delved much on the condition of the motorcycle which could have thrown some light on the possibility of deceased having met with an accident. The investigation is therefore not properly done or probed in that direction deliberately. Lastly Mr. Shah submitted that the deceased started from home at about 7:30 a.m. as per prosecution case on motorcycle to go to the house of accused No.1 which is at a distance of about 30 km and which would take about half an hour to 45 minutes on a two wheeler to reach. However, the prosecution case is that the deceased reached the house of accused No.1 at about 2:30 in the afternoon and no evidence is coming from prosecution as to what happened during this interregnum period. Mr.Shah submitted that all these aspects have been overlooked by the trial Court and A1 is convicted. Mr. Shah submitted that when there are two possibilities emerging from prosecution case itself, the possibility which is favourable to the accused has to be accepted by the court which aspect has been overlooked by the trial Court and therefore, the appeal by A1 may be allowed setting aside his conviction and he may be acquitted of the charges levelled against him. Mr. Shah submitted that so far as State appeal is concerned, there is no substance. It is only a counter blast to this appeal and there is no evidence emerging to connect either A2 or A3 with the offence. The appeal preferred by A1 may, therefore, be dismissed.
6. Learned Additional Public Prosecutor Mr. Pandya, on the other hand, submitted that the evidence would show that there were blood marks in the terrace of A1 spread over a large area of about 15 feet periphery. If what the defence is trying to canvass is correct i.e. the deceased met with an accident, came to the house of A1 and A1 took him to the terrace, then there would not have been so much blood spread over that area. Mr. Pandya emphasized on medical evidence and based on the evidence of Dr. Anil Bansal and Dr.Rohit Jariwala, tried to impress that the injuries found on person of the deceased were less probable to be caused in an accident. Mr. Pandya submitted that the defence taken by A1 does not reflect a natural conduct. If the deceased had gone to his place in such a profusely bleeding condition out of accidental injuries, he would not have carried him all the way to terrace on third floor, he would have either taken him to the hospital straightway or taken him to his home on the second floor. Further, A1 would not have changed the clothes of the deceased but would have ensured immediate treatment and lastly A1 would have informed the relatives of the deceased forthwith upon knowing about the injuries. This conduct on the part of A1 makes his defence improbable and therefore also the trial Court was justified in convicting the A1.
7. Mr. Pandya submitted that so far as appeal by State is concerned, blood stained clothes of A2 and A3 have been recovered and were found to carrying blood stains of the group of the deceased and therefore their involvement in the incident is established. Trial Court was therefore not justified in in acquitting them. Mr. Pandya, learned Additional Public Prosecutor submitted that appeal by A1 may be dismissed and appeal by State may be allowed.
8. We have examined Record and Proceedings in context of rival submissions. The prosecution case in brief is that deceased Bhikhabhai was telephonically summoned by A1 at his residence on the day of incident and accordingly deceased left his place at about 9:30 a.m. to go to the house of A1. The deceased reached the house of A1 at about 2:30 p.m. He was taken to the third floor terrace of the house of A1 where he was stabbed to death by A1. His clothes were changed and then he was taken to Doctor Atulbhai who opined that the injury was serious and therefore he should be taken to some other hospital and therefore the deceased was taken to Sterling Hospital at Ahmedabad, where he died. The FIR was lodged by wife of Bhikhabhai viz. Sitaben Bhikhabhai Patel and she alleged the murder to have been committed by A1. Offence was registered by Kalol City Police Station and matter was investigated. During the course of investigation, it is the case of the prosecution that, clothes of the deceased, which he was allegedly wearing at the time of incident, were discovered by A1 and other articles like shoes etc. were discovered by the other two accused persons. The deceased had a stab injury in chest which pierced to the heart and resulted in his death. Ultimately the police having found sufficient materials to connect accused persons with crime, they filed charge sheet in the court of Judicial Magistrate First Class, who, in turn, committed the case to the Court of Sessions and Sessions Case No.68 of 2004 came to be registered. The Sessions Court convicted A1 and acquitted A2 and A3. A1 has preferred appeal against conviction whereas the State has preferred appeal against acquittal of A2 and A3.
9. Sitaben Bhikhabhai Patel (PW:1) is examined by the prosecution at Exh.34 and she says that on receiving a mobile call from A1, her husband left home on motorcycle at about 9:30 a.m. Her husband did not come back during the day. She received an information through Jagabhai Jerambhai at about 7:00 p.m. that Bhikhabhai (her husband) has suffered injury and is admitted to hospital at Ahmedabad. They went to Sterling Hospital. The said information was given to her by Shaileshbhai Barot. Incidentally, said Shaileshbhai Barot has not been examined. In her deposition Sitaben has also stated that there were some monetary transaction between deceased Bhikhabhai and A1 and money was due from A1 to Bhikhabhaithe deceased which he used to demand from A1 and therefore A1 had stopped coming to their house and on day of incident A1 had called her husband under a pretext of some personal work and had caused his death. She states that A2 had discovered clothes of the deceased from a plastic bag. His shoes and mobile were also discovered from pond at the instance of A3.
9.1 During the crossexamination she admits that she lodged the FIR after the articles of the deceased i.e. clothes, shoes, mobile phone etc.
were shown to her by police. This becomes relevant because the FIR was lodged on 15th March 2003 whereas the discovery of said articles was effected on 17th March 2003 as per the prosecution case itself. The witness has also admitted during crossexamination that she had given name of A1 only on suspicion and that she had made improvement in her evidence from her FIR by stating that because her husband had made strict demand of money from A1, A1 had stopped coming to their house for a last about two months and that because of that A1 had called her husband under pretext of personal work.
10. Evidence of Rajeshkumar Mahendrabhai Shastri (PW:8)is at Exh.55. He happened to be the friend of Shaileshbhai. He states that Shaileshbhai received a phone call on his mobile phone to go to Adarsh Hospital where a friend who had met with accident had been admitted. Therefore he along with Shaileshbhai went to Dr. Atulbhai's hospital. The injured stated before him that he be taken to some good hospital as he has suffered accidental injuries. They took a note from Dr.Atulbhai and took the injured to Sterling Hospital where he was admitted and treatment started immediately. During the course of treatment, the injured person died. The police was informed, the police came and took his signature on a panchnama. During crossexamination he states that till they reached Sterling Hospital from Dr. Atulbhai's hospital, Bhikhabhai was conscious and he had stated to Shaileshbhai, in his presence, that he has met with an accident with unknown vehicle and had Manishbhai been not present, he would not have got immediate treatment. This witness also admitted that there was dusting on head and face of the victim and abrasion on upper and lower limb. The other two relevant witnesses are Harshadkumar Natubhai Panchal (PW:12, Exh.61) and he is a resident of Jantanagar Raw House and he stated that he had seen deceased Bhikhabhai coming on bike and falling down in the parking, his clothes were stained with blood, trouser was torn off, Bhikhabhai went to the house of Manishbhai, but Manishbhai had some guests and therefore Bhikhabhai was taken to the terrace. Manishbahi went to call doctor. Since doctor did not turn up Bhikhabhai was taken to hospital by Manishbahi. Manishbhai, according to this witness, would be A1. This witness has been declared hostile to the prosecution. His cross examination to the APP would only reveal that as per the prosecution case, he heard a commotion in the terrace at about 2:30 in the afternoon of 14th March 2003. He therefore went to the terrace and found one person bleeding. He, however, admits that he had stated that A1 and A2 had gone with the injured person to hospital in the rickshaw. This witness during crossexamination to defence stated that the injured person Bhikhbhai had told him, on being asked, that he had suffered accidental injuries and that A1 had informed relatives of Bhikhabhai telephonically about the same. He also stated that when the deceased came to the house of A1, A1 had some guests and they were having meals and therefore the deceased was taken to the terrace by A1.
11. Next witness is Umeshbhai Kanaiyalal Raval (PW:11) who is at Exh.60. He is also treated as hostile to the prosecution case but his evidence is relevant only to the extent that A1 and A2 had taken the deceased to the hospital in auto rickshaw.
12. Witness Jasuji Bhvaji (PW:17, Exh.70) is a Police Head Constable.
He states that initially he had made an entry of accidental death in respect of the deceased in the station diary which was subsequently converted into C.R.NO.44 of 2003 treating the death as murder. During cross examination he admits that upon demise of victim Bhikhabhai at Sterling Hospital papers relating to accidental death were produced by Shaileshbhai Traymbaklal to Kalol Police Station and on that basis entry was made. Therefore even at the time of demise in the Sterling Hospital the information were regarding accidental injuries and death of the deceased.
13. The medical evidence consists of Dr. Anilbhai Ramkumar Bansal (PW:6) and Dr. Rohit Jariwala (PW:2). Dr. Anilbhai Ramkumar Bansal is at Exh.52 and Dr.Jariwala is at Exh.38.
13.1 Dr. Anilbhai Bansal had treated the deceased at Sterling Hospital and upon demise he sent dead body for postmortem at V.S.Hospital where Dr. Rohit Jariwala performed postmortem. Both the doctors stated about injuries found on the person of the deceased. They described the main injury in chest and then referred to other injurious found on arms and knees. The two doctors are unanimous on the opinion that muddamal article knife could have caused the fatal injury but they differed on the question whether homicidal injury and accidental can be distinguished. Dr. Jariwala says 'Yes' whereas Dr.Bansal says 'No' to the same but he says that the injury that was found on the person of the deceased was less probable to be accidental but he only speaks about a probability being less he does not rule out possibility altogether.
14. The Investigating Officer is Mr.Maheshwari H. Joshi (PW:21), who is examined at Exh.83. It emerges from his evidence that he had recorded statements of Shaileshbhai Tryambaklal and Jagdishbhai Jerambhai who were personal friends of the deceased. It also emerges that he had recorded statements of all the shopkeepers of Janta Nagar Raw House and none of them supported the prosecution case whereas from the statement of Shaileshbhai Traymbak and Jagdishbhai Jerambhai, it revealed that the deceased had suffered accidental injuries.
15. From the above discussion, it is clear that we have before us volume of prosecution evidence which consists of two sets, one is Sitaben who alleges murder at the hands of A1. She is not an eye witness. She has no other information and she admits that she lodged FIR and implicated A1 only out of suspicion because A1 owed some money to her husband. It also appears that some part of this version is an improvement from her version in the FIR. There is witness Rajeshbhai Shastri (PW:8) who has in terms stated that the deceased had suffered accidental injuries. This witness has not been treated hostile by the prosecution. Meaning thereby that this has been his version from the beginning. Therefore, the prosecution itself comes out with two sets of evidence, one which reveals that it was an accident and the other points out only a possibility of murder having been committed by A1. The prosecution has deliberately not examined Shaileshbhai Barot and Jagdishbhai Jerambhai by tendering pursis Exh.63. A look at that document will show that dropping of these two witnesses was strictly objected to by the defence and still the witnesses were not made available to the Court or to the defence for cross examination. The defence has then brought on record through evidence of Investigating Officer Mr. Joshi. That statement of this witness were recorded and they revealed that deceased had suffered accidental injuries.
16. It is also worth a note that all panch witnesses have not supported the prosecution case. The discovery, recovery therefore cannot be said to have been appropriately proved. It is also the case of the prosecution that some of the articles of the deceased were discovered from the pond and the person who had gone deeper into the water and brought out these articles has also not been examined by the prosecution.
17. Settled proposition of criminal jurisprudence is that, when there are two compartmentalized status of evidence, one which is favouarable to the defence has to be accepted by the Court. As discussed above, we have two sets of evidence, one which says that the deceased suffered accidental injuries has to be accepted.
18. Learned Additional Public Prosecutor Mr. Pandya was to an extent justified in submitting that the conduct of A1 is not natural, and that there would have been no blood on the terrace spread over such a larger area if the deceased was taken there after having suffered accidental injuries. But that submissions leads the Court nowhere for the reason that the investigation stops there only. The fact that there was blood on the terrace is not appropriately proved because panch witnesses have not supported the case of the prosecution. Evidence of Dr.Bansal as well as Dr.Jariwala also cannot advance the prosecution case any further. They only indicate less probabilities of the injury being accidental but do not rule out the possibility of injury being an accidental that was found on the person of the deceased.
19. In our opinion, prosecution cannot be said to have proved the case against the accused persons beyond reasonable doubt. Appeal by A1 viz. Manishkumar Kantilal Patel deserves to be allowed, the same is allowed. Conviction of A1 is hereby set aside. He is acquitted of the charges levelled against him. Bail bond of original A1 shall stand cancelled since he is on bail. So far as State appeal is concerned, the above discussion would show that there is no substance in the appeal. The appeal must fail and hence stands dismissed.
(A. L. DAVE, J.) amit (PARESH UPADHYAY, J.)