IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1869 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE PARESH UPADHYAY =========================================
========================================= THAKORE VINAJI NATUJI Versus STATE OF GUJARAT ========================================= Appearance :
MR HARNISH V DARJI for the Appellant MR K. L. PANDYA ADDL.PUBLIC PROSECUTOR for the Opponent ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 25/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY)
1. This appeal is directed against the judgment and order of the Sessions Court, Patan, in Sessions Case No. 85 of 2005 dated 25.07.2006, whereby the appellant, Thakor Vinaji Natuji, original accused No.1, is convicted of the charge of committing offences punishable under Sections 302, 392, 397, 201, 120B of IPC and Section 135 of the Bombay Police Act. Two persons were tried. The second accused was Isaji @ Isuji Chundaji Thakor and he was original accused No.2. The original accused No.2 is acquitted whereas the present appellant, original accused No.1 is convicted and for the said conviction, is sentenced as under.
(i) For offence under Section 302 of IPC, for life imprisonment and fine of Rs.500/ and in default, simple imprisonment of one month,
(ii) For offences under Sections 392, 397, 201 read with Section 120B of IPC, rigorous imprisonment for two years,
(iii) For offence under Section 135 of Bombay Police Act, no separate sentence is imposed.
All sentences are ordered to run concurrently.
It is this judgment and order which is under challenge in this appeal.
2. 1 The case of the prosecution is to the effect that on 14.08.2005, Mafaji Govaji (PW:1, Exh.11) gave complaint to the Harij Police Station, informing about the homicidal death of his brother Savsiji. His complaint was to the effect that they are three brothers, he (Mafaji Govaji) is the eldest, next to him is Sartanji and the youngest is Savsiji. All the three brothers are residing in Kathi village, in their own, different but adjoining houses, with their families, in the field. He stated that, on the previous night, on Saturday, there was 'Hanuman Chalisha' at one Kevalji Jesingji's place. His youngest brother Savsiji, at about 8 O'clock at night, after having his meal, had gone there i.e. to attend 'Hanuman Chalisa' prayer as he used to do on every Saturday, and he i.e. the complainant had gone to his field and on 14.08.2005, when he returned in the morning at about 6 O'clock, since his brother had not returned home, after going for 'Hanuman Chalisha' in the village, he had gone for a search of his brother and at the gate of the village Ghela Ramchand and Bhajaji Lalaji informed that one dead body is lying in the field of Vajuben and found that, body lying there was that of his youngest brother Savsiji and blood stains were also there. He also declared that the dead body had large size wound at its neck. It was also declared that some of the ornaments, which the victim was normally wearing, were also missing and this is how he informed about the offence against unknown persons. The FIR was lodged with Harij Police Station, as CRI No: 63/2005, under Sections 302 and 34 of IPC and Section 135 of the Bombay Police Act.
2.2 It is also the case of the prosecution that after about twenty days of the occurrence, police got ‘secrete information’ that those unknown persons were these two accused and that is how they came to be arrested. A1, the present appellant was arrested on 3.9.2005, asserting that he was wearing the same cloths which he had put on the date of occurrence, while committing the offence of robbery and murder of the deceased. The prosecution theory further proceeds that both the accused had conspired and committed the offence. The motive attributed is the robbery of gold ornaments.
2.3 The case was investigated, charge sheet came to be filed in the court of Judicial Magistrate First Class at Harij, who in turn committed the case to the court of session at Patan where the case was numbered as Sessions Case No: 85 of 2005. Charge was framed against both the accused vide Ex.4 for having committed offences punishable under Sections 302, 392, 397, 201, 120B of IPC and Section 135 of the Bombay Police Act, which they denied and were tried. On conclusion of the trial, sessions court convicted A1 and acquitted A2. The acquittal of A2 has attained finality and A1 has challenged the said conviction and sentence by this appeal.
3. We have heard Mr. Harnish Darji, learned advocate for the appellant and learned Additional Public Prosecutor for the State.
4.1 Learned counsel for the appellant Mr. Harnish Darji has contended that there is no evidence which connects the appellant with any of the offences, alleged to have been committed by him. Learned advocate for the appellant Mr. Harnish Darji has also submitted that there is no evidence worth the name, much less sufficient material to bring home the charge of appellant having committed offence under Section 302 of IPC. It is also pointed out that it is quite unnatural and unbelievable that the appellant was wearing the same clothes after about 20 days of occurrence. It is pointed out that there was property dispute between the complainant and the victim, coupled with the fact that soon after the occurrence, when dogsquad was called on the spot, dog was also pointing towards the house of the victim himself. He has also pointed out that from the place where the dead body was lying, one sleeper and battery were also found and no investigation in that direction is taken by police authority. The offence under Sections 392 and 397 of IPC, which is claimed to be the motive, were not there even at the time of filing of charge sheet Ex.1 in the Sessions Case. A specific plea is taken in the further statement by defence to the effect that the family members of the victim i.e. that of the complainant also, are close relatives of the sitting minister named Dilip Thakore and at the instance of the said minister, to save the complainant, the appellant is falsely implicated. One Bhurjibhai who is claimed to be relative and representative of the said minister is also specifically named and referred by the accused. It is further contended that if the say of the appellant, as reflected in his further statement under Section 313 of Cr.P.C. is looked in juxtaposition of the evidence on record, it would clearly establish the false implication of the present appellant to save the family members of the victim himself at the instance of the politically influential persons. Differently put, it is contended that if the material on record is examined in totality, keeping in view this plea, this is the clear case of false implication of a poor villager having no shelter of parents, to save the family members of the victim himself, with the help of their political clout.
4.2 He has further submitted that even the so called discovery of ornaments, at the instance of the appellant, which are claimed to be that of the victim, is taken on its face value, then also the appellant can not be said to have committed offence punishable even under Section 392 of IPC, much less of 397 or 302 of IPC. He has also relied on Section 27 of the Evidence Act to contend that even the so called discovery of ornament can be said to be a distinct fact of the knowledge of the appellant regarding the ornaments having concealed in the field and it can not connect the appellant beyond that fact. It is further contended that even if the conviction for having committed offence under Sec. 392 of IPC is maintained by this Court, the appellant is sentenced for that offence for two years, while the appellant has already undergone more than seven years of imprisonment by this time. He has submitted that under these circumstances though, upholding of the conviction under IPC 392 may not have any effect on the liberty of the appellant at this stage, he still would like to press into service the contention that the appellant ought not to have been convicted even for offence under Section 392 of IPC. It is vehemently contended that the false implication of the appellant is the defence theory, which he maintains even now and therefore though upholding of conviction for offence under Section 392 may not have any effect on the appellant walking free now, he urged this Court to remove even that stigma from the forehead of the appellant.
4.3 Learned counsel for the appellant has also relied on the judgment of the Honourable the Supreme Court of India in the case of State of Goa vs. Sanjay Thakran and another [(2007) 3 SCC 755]. By referring to this judgement it is contended by learned advocate for the appellant that the present being the case of circumstantial evidence, the prosecution must establish its case as per the settled position of law as observed in para:13 of this judgement, which reads as under.
“13. The prosecution case is based on the circumstantial evidence and it is a well settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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
(4) 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 guilty of the accused but should be inconsistent with his innocence.”
5. Learned APP, on the other hand, has supported the conviction recorded by the trial court and consequently sentence awarded on the appellant. It is contended by learned APP that the evidence on record was sufficient to bring home the charge levelled against the appellant and this Court may not interfere in the conviction and sentence recorded by learned Sessions Judge. Learned APP has also relied upon the judgment of the Supreme Court of India in case of Madhu vs. State of Kerala [(2012) 2 SCC 399].
6.1 Having perused the record, in the light of rival contentions, we find as under.
6.2 At the outset, it needs to be recorded that, on the basis of the evidence of Dr. Parvatbhai Amthabhai Patel (PW:3, Exh.15) and the postmortem report of the deceased (Exh.17), we find that there is no dispute about the fact that the death of the victim was homicidal one.
6.3 The brother of the victim the complainant, named Mafaji Govaji was examined as PW:1 (Exh.11). He confirms the contents of the complaint which has already been referred to hereinabove. In his cross examination, he confirms that one Bhurjibhjai is his cousin brother who resides at Datarwada village. He does not know whether said Bhurjibhai and Minister Dilipsinh Thakor are cousin brothers or not. He admits that said Bhurjibhai had accompanied him when he had gone to police station. Defence has made a suggestion of the complainant and deceased having dispute over land property, which he has denied. This witness pleads his ignorance as to where his third brother Sartanji was on the fateful night. He confirms that houses of all the three brothers are almost adjoining. The defence has also made a suggestion that on the fateful night the family members had a quarrel interse and in that scuffle Savshi, the victim got injured and died and with a view to see that no family member is involved in the matter, help was taken of Minister Dilipsinh Thakor, who is cousin brother, and the dead body was thrown in the field of Vajuben. The witness denies this suggestion, however, we find that the suggestions made in the cross examination are consistent with defence theory which was pleaded before the learned sessions Judge in further statement under Section 313 of Cr. P. C.
6.4 The wife of deceased Kadviben Savsiji Thakor (PW:10, Exh.31), in her evidence, stated that the incident had happened on Saturday night. After having meal, the deceased had gone for 'Hanuman Chalisha' at the house of one Kevalji Jesangji and had not returned home at night. In the morning, she had sent her son to the complainant's house to inform this and to find her husband and then she came to know that her husband is dead. In the cross examination, she confirms that, her husband had two other brothers, her fatherinlaw is alive, one sisterinlaw (husband's sister) is divorcee, her name is also Kadviben and she stays with her family, fatherin law also stays with her family. She says that the partisan of land is already done and the land in the share of the fatherin law is also being managed by her family i.e. not by other two brothersinlaw and the management of that part of land was to be done by her family till the fatherinlaw survive. She confirms that when police came, dog squad was also there. After taking smell of the body and the earth where the body was laying, the dog had come to her house and had set there without going to any other place. She also confirms that there was murmuring in the village that it is the family members themselves who were in suspicion. She denied the suggestion of the defence that any quarrel had taken place on that day. It is important to note that she had two major sons, both married and prosecution has chosen not to examine them.
6.5 One Prahaladji Sagramji is examined as PW14 (Ex.42), who claims that he had seen both the accused at about 10.30 night standing near the temple. A1 had ‘Dhariya’ in his hand, both were talking. In cross examination he confirms that after about one month or so, police came to him, before that he did not inform this to any one.
6.6 One Vajuben Bhavsangji (Exh.39) is examined as prosecution witness No:12. It is this lady from whose field the body of the deceased is claimed to have been recovered in the morning of 14.8.2005. She, in her evidence, does not confirm the dead body having recovered from her field and was declared hostile. In her cross examination by learned APP also, she does not toe the line of prosecution. In her cross examination by defence, she confirms that the village people were talking that because of the land dispute amongst brothers interse, the murder had taken place. She confirms the presence of one Bhurjibhai, the cousin brother of the complainant, who is also cousin of the Minister named in the further statement. She deposed to the effect that, as said Bhurjibhai was dictating, police was writing. She also confirms that it is a known fact in the village that said Bhurjibhai is first cousin of the Minister who is named. She further states that initially, her statement, which the police had taken, was also dictated by said Bhurjibhai.
6.7 One Dipakkumar Kantilal Soni is examined as PW:13 (Exh.40), who has been pancha to the discovery of the ornaments of the victim. He states that he is having his shop near the police station and whenever police needs he is called. At the time of going for discovery of ornaments, he was called by police along with scale etc. He confirms that discovery was made at the instance of appellant. He states that he knows Bhurjibhai. He also knows the Minister Mr. Dilipbhai.
6.8 Investigating Officer Ranjitsinh Pratapsinh Zala (PW:16, Exh.46), in his deposition stated that, on 14.08.2005 the offence had taken place. No name was disclosed by the complainant as suspect. After about 20 days, he got secrete information that the offence was committed by the present appellant. On this information, he detained present appellant named Vinaji Natuji Thakor on 03.09.2005. This witness claimed that, since according to him, sufficient evidence was available, charge sheet was filed by him against both the accused. He further deposed that Vajiben from whose field body was recovered, she, in her statement, had stated that one Kesabhai Devabhai Vaghri was staying in a hut in that field and blood marks were found near the said place. In the cross examination he confirms that statement of said Kesabhai Devabhai Vaghri was taken by him. Said Kesaji is not examined by prosecution. This Investigating Officer, in his cross examination, confirms that he is aware that said Bhurjibhai is cousin brother of the Minister Dilipbhai Thakor. He confirms that dog squad was leading towards the house of the victim himself. He denies the suggestion that investigation was carried out as per the instructions of either Minister or Bhurjibhai. Neither in the examinationinchief nor cross examination, any information is coming out as to why Kevalji Jesinghbhai at whose place 'Hanuman Chalisha' was arranged on that Saturday night, where the victim was claimed to have gone from his house, is not examined, to find out, as to whether he had, at all come there or not.
6.9 By panchnama Exh.25, it is claimed that clothes are the same, which the appellant was wearing while killing the deceased. The shirt of the appellant did not contain any blood mark. The pent of the accused contained some blood stain but it was insufficient to give any report by FSL. The weapon claimed to have been discovered at the instance of the appellant did not find any blood stain.
7. On the basis of the above evidence, an overall picture which emerges is that, in a small village, the victim was attending 'Hanuman Chalisha' on each Saturday night. On the date of occurrence, after taking meal he had gone to the house of Kevalji who is not examined. His dead body is found in the morning in the field of one Vajuben, near the hut of Kesabhai Vaghri whose statement is claimed to have been taken but is not examined, and it is coming on record from the evidence of Vajuben an independent prosecution witness that there was a talk in the village that, there were disputes between the victim and the complainant the brothers interse, and the incident had taken place at the residence of the victim himself. Further, it is on record that the dog squad was also going to the house of the victim itself. Further, the presence of Bhurajibhai, the cousin of the Minister is seen all throughout, including the dictation of statements of the witnesses by him. After about twenty days, the Investigating Officer is claimed to have received secrete information about the present appellant having committed offence, who is resident of that very village and very poor, having no shelter of parents. The motive attributed is robbery of gold ornaments, while the inquest panchnama (Exh.13) reveals that one gold ornament was already found on the person of deceased and thus, the motive of offence under Section 392 also looses its significance. Further, neither Sec.397 nor even Sec.392 of IPC, was invoked till filing of charge sheet. If all these factors are weighed in totality, we find substantial force in the defence plea taken by the accused/appellant. Further, even with this investigation, which, if not tainted, certainly lacking fairness, is accepted on its face value, then also, we find no material, muchless legally acceptable material, which connects the appellant with the homicidal death of the victim. Further as noted above, the inquest panchnama (Exh.13) reveals that one gold ornament was already found on the person of deceased, loosing significance of the motive of offence under Section 392. Even otherwise the plain reading of Section 27 of the Evidence Act even with the help of the judgment relied upon by the learned APP would not permit the prosecution to claim anything beyond the knowledge of the accused of concealing the ornament at the place, which the Investigating Officer says, he had not examined whose field it was, and learned sessions Judge in the impugned judgment erroneously recorded that it was the field of the appellant himself. The learned sessions Judge, in para15 of the judgment, has recorded that the evidence of the Investigating Officer is dependable and the say of the Investigating Officer is sufficient evidence to presume that the deceased is killed by Vinaji (the appellant) and that he robbed the victim of the ornaments. This observation of sessions court is unsustainable at law. On the sole basis of evidence of Investigating Officer, conviction can not be recorded. Further, the evidence of PW14 (Ex.42) makes the prosecution case more vulnerable because by his evidence, as per prosecution theory, victim was alive atleast till 10.30 night. It is on record that he had left the home at eight o’clock night. In these two and half hours the victim was supposed to be at the place of Kevalji Jesangji attending 'Hanuman Chalisha' with many other persons. Prosecution does not whisper even a word with regard to persons attending 'Hanuman Chalisha'. Still worse, prosecution has not examined even Kevalji Jesangji who was the host of that evening. This, in our view is less the lecuna, more the convenience left by the prosecution to itself, further fortifying the defence plea as reflected in the further statement of the appellant referred above. Keeping in view the totality of the facts and evidence on record and the tests to be applied in the cases of circumstantial evidence, in the present case we find that, the circumstances from which the inference of guilt is drawn, are neither cogent nor do they point towards the guilt of the accused, and these circumstances, taken cumulatively, does not 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. We further find that the evidence on record is not only, not complete but is capable of explanation of the hypothesis other than that of the guilt of the accused. In our judgement, the evidence on record is not only inconsistent with the guilt of the accused but is also consistent with the innocence of the appellant. Under these circumstances we are unable to sustain conviction recorded by the trial court, even for the offence under Section 392 of IPC. It needs to be recorded that appellant is convicted for offence under Sec.392 r/w Sec.120B of IPC and original accused No:2 is acquitted and the said acquittal is not under challenge.
8.1 For the reasons recorded above, we arrive at the judgment and pass order, as under.
8.2 The material on record is not sufficient to hold the appellant guilty, beyond reasonable doubt, of the charged offences. The trial court was in error to base conviction on such insufficient material on record. The appellant is acquitted from the charge, for which he was tried by the Sessions Court, Patan, in Sessions Case No: 85 of 2005.
8.3 Conviction recorded by the trial court qua the appellant, for having committed offences punishable under Sections 302, 392, 397, 201, 120B of IPC and Section 135 of the Bombay Police Act is set aside. Consequently, sentences awarded by the trial court, on the appellant, for these offences, is also set aside. The conviction and sentence, as recorded/ awarded by the impugned judgment and order passed by learned Additional Sessions Judge, Patan, in Sessions Case No. 85 of 2005, dated 25.07.2006 stands quashed and set aside.
8.4 The appellant, Thakor Vinaji Natuji is ordered to be set at liberty forthwith, unless required for any other lawful purpose. Fine, if paid shall be refunded to the appellant.
The appeal is allowed.
(A. L. Dave, J.) amit (Paresh Upadhyay, J.)