IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1899 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== MULJIBHAI LAXMANBHAI VASAVA Versus THE STATE OF GUJARAT ========================================== =============== Appearance :
MR PRATIK B BAROT for Appellant.
MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for respondent.
========================================== =============== Date : 13/08/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convicted person and is directed against an order of conviction dated 15th September 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Bharuch, in Sessions Case No. 125 of 2005 by which the learned trial Judge found the accused guilty of the offence punishable under section 302 of the Indian Penal Code and imposed a sentence of rigorous imprisonment for life and a fine of Rs.1000/-; in default of payment of fine, further simple imprisonment for six months was imposed. The learned trial Judge also passed order of setting off for the period undergone by the accused as under-trial prisoner.
2. The translated version of the charge framed against the accused is quoted below:
“Seven months prior to 04.09.2005, Lilaben, the wife of deceased in this case, viz. Govindbhai Buchiyabhai Vasava, residing at Chandraval, Tal. Valiya, Dist. Bharuch, had run away with you on account of a love affair with you, the accused, and as the deceased Govindbhai was demanding customary-money of and on, keeping vengeance thereof, you the accused at night time on 04.09.2005, inflicted an axe blow on the right part of throat of deceased Govindbhai and caused his death and thereby, you have committed the offence punishable u/s 302 of the Indian Penal Code in the jurisdiction of this Court.
Moreover, on 04.09.2005, in spite of the Notification of prohibition of weapons of the District Magistrate was in force, at Chandraval, Tal. Valiya, committing breach of that Notification, using a lethal weapon like axe, the death of Govindbhai Buchiyabhai Vasava was caused. Therefore, the offence punishable under section 135 of the Bombay Police Act is committed.”
3. The case made out by the prosecution may be summed up thus:
3.1 Babubhai Buchiyabhai Vasava, the complainant, used to live with his wife and children at village Chandravan, Tal. Valiya. He had four brothers and a sister and they lived separately from him and he was the youngest. His father died long back and his mother, viz. Somiben, lived with his brother, Govindbhai, the deceased. About six to seven months ago, the wife of Govindbhai had run away with Muljibhai Laxmanbhai, the accused, who is son of his mother's sister. Govindbhai, who was aged about 36 years had three sons and all the three sons lived with him.
3.2 On 5th September 2005 at about 6 O'clock in the morning, the complainant's mother came to his house weeping and stated to the complainant that Govindbhai was lying dead in the adali [veranda]. The complainant immediately went to the house of Govindbhai with his mother and found Govindbhai lying in the veranda, covered with a godhadi [cotton quilt]. On removing the quilt, he found Govindbhai dead, with a wound on the right part of the throat and the blood that came out had clotted.
3.3 The complainant asked his mother, Somiben, about the incident and Somiben stated that on the previous night, Govindbhai had slept in the veranda and his three sons had slept with her inside the house. At about 5 O'clock in the morning, she woke up and while trying to awaken Govindbhai, she found that he had died.
3.4 The complainant thereafter informed his elder sister living at Arethi, and when she came, the complainant, his elder sister and one Chhatrasing Narsing, a leader in the village, went to the Police Sub- Inspector, Valiya Police Station, Camp Netrang on 5th September 2005 and he dictated the complaint in detail stating that somebody caused injury by a sharp-edged weapon on the right part of the throat and committed murder of his brother.
3.5 After registration of the said complaint, police had taken over the investigation, visited the scene of offence and made inquest panchnama in the presence of panchas and the corpse was sent for post mortem. Panchnama of the scene of offence was also drawn in the presence of panchas and the blood-stained soil, control soil, blood- stained quilt and a bamboo stick were sized. Panchnama of all the four boundaries was made and a panchnama was also made with regard to help of dog squad being taken. As the Doctor handed over the blood stained clothes from the corpse at the time of post mortem to ASI Prahladbhai, the same was also seized by recording a panchnama. The statements of concerned witnesses were recorded. As the accused was found, the panchnama of his physical condition was made and the blood-stained clothes were also seized and the accused was detained.
3.6 Thereafter, as the accused indicated his willingness to disclose the weapon used in committing the offence, a panchnama under section 27 of the Evidence Act was drawn and the weapon was seized in the presence of the panchas. The seized weapon was sent to Forensic Science Laboratory for examination. Upon receipt of the FSL report and the post mortem report, the same were placed with the record of the case.
3.7 As there was sufficient evidence against the accused on investigation, charge sheet was made in the court of Judicial Magistrate, First Class, Valia and as the case was exclusively triable by Court of Sessions, learned Judicial Magistrate committed the case to the Court of Sessions under section 209 of the Code of Criminal Procedure.
3.8 The accused was produced before the learned Additional Sessions Judge, Fast Track Court No.5, Camp Ankleshwar. Thereafter, charges for the offences punishable under section 302 of the Indian Penal Code and section 135 of the Bombay Police Act were framed and read over to the accused. The accused denied the charges and claimed to be tried.
3.9 At the time of hearing, the prosecution produced oral evidence of the following persons in support of the prosecution case.
3.10 The prosecution also produced the following pieces of documentary evidence in support of its case.
3.11 The statement of the accused was recorded under section 313 of the Code of Criminal Procedure where the accused denied the allegations of the prosecution. The accused did not lead any evidence on oath nor did he examine any person as defence witness.
3.12 The learned Sessions Judge, on consideration of the evidence on record, came to the conclusion that the prosecution had proved that the accused was guilty of murder of the deceased and therefore, imposed the sentence on him as indicated earlier.
3.13 Being dissatisfied, the convict has come up with the present appeal.
4. Mr. Barot, the learned advocate appearing on behalf of the appellant, strenuously contended before us that the learned Sessions Judge committed substantial error of law and facts in holding that the appellant was guilty of murder notwithstanding the fact that there is no eyewitness of the incident and even there is no sufficient material to implicate the appellant based on circumstantial evidence. Mr. Barot submits that it appears from the evidence of the son of the deceased himself that his father used to beat his mother, as a result, his mother, Lilaben, the wife of the deceased, had left. Mr. Barot contended that there is no evidence to show the place of actual arrest of the appellant except the statement of Investigating Officer. Mr. Barot submits that panchnama of the place of arrest or time of arrest has not been prepared in this case. Mr. Barot further submits that it is impossible to accept the prosecution case that even three days after the incident, the accused will be wearing the blood-stained wearing apparel if it is assumed for the sake of argument that the accused was arrested at the bus-stop near the place of incident. Mr. Barot further contends that the appellant used to reside in a place which is about 120 kms. away from the place of incident.
4.1 Mr. Barot further contends that in this case although one of the panch witnesses has deposed in his evidence that the appellant led the police to discover the weapon from a field near the place of occurrence, it appears that at the time of taking statements under section 313 of the Code of Criminal Procedure, the evidence of recovery of such weapon was not brought to the notice of the accused by the concerned Sessions Judge, and as such, the accused had no opportunity of explaining the situation. According to Mr. Barot, in the absence of any eyewitness, the learned Sessions Judge committed substantial error of law in convicting the appellant simply on the basis of the alleged recovery of the weapon, notwithstanding the fact that at the stage of examination under section 313 of the Code of Criminal Procedure, the attention of the accused was not drawn to such allegation and the evidence on record.
4.2 Mr. Barot, therefore, prays for setting aside the order of conviction and sentence imposed upon the appellant.
5. Mr. Rawal, the learned Additional Public Prosecutor, appearing on behalf of the prosecution has, on the other hand, opposed the aforesaid contentions of Mr. Barot and has submitted that the learned Sessions Judge, on consideration of the evidence on record having believed the version of the prosecution, we should not interfere with such findings in the absence of any cogent reasons. Mr. Rawal contends that for the wrong step taken by the learned Sessions Judge while recording the statement under section 313 of the Code of Criminal Procedure, the accused should not get the benefit if it is otherwise proved that the allegations against him have been proved and for not drawing attention of the appellant to a particular piece of evidence, the appellant has not been prejudiced. In support of such contention, Mr. Rawal places strong reliance upon the decision of the Supreme Court in the case of SHOBHIT CHAMAR v. STATE OF BIHAR reported in (1998) 3 SCC 455. Mr. Rawal, therefore, prays for dismissal of the appeal.
6. The only question that falls for determination in this appeal is whether the learned Sessions Judge was justified in holding that the prosecution had proved the case of murder against the appellant.
7. After hearing the learned counsel for the parties and after going through the materials on record, we find that indisputably there is no eyewitness of the incident. It appears that the wife of the deceased had left him few months prior to the incident. It further appears that the deceased used to deal in liquor business and also used to beat his wife as has been admitted by the son of the deceased himself. Even if we assume for the sake of argument that Lilaben, the wife of the victim, had really eloped with the appellant and was staying elsewhere, that itself cannot be a ground for killing the husband Lilaben in the absence of any other evidence showing the motive of murder. There is no evidence of demand of customary-money by the deceased from the accused as alleged in the charge framed.
8. The Investigating Officer in his deposition has stated that on making search for the appellant at Village Chandravan, he was not found. On making investigation, it was found that the appellant used to live at village Karmad, Taluka & District Bharuch but on making search, the appellant was not even found there. Thereafter, an informer informed that the appellant was standing near the bus-stand of village Kup waiting for a vehicle and on reaching the bus-stand along with the complainant in a vehicle, the appellant was found, who was identified by the complainant. The appellant was arrested from that place and was brought to Netrang Out Post.
9. The complainant has deposed as PW.3. In his examination-in- chief, he stated that two days after lodging of the complaint, police had brought the appellant. He has not stated in his evidence that it was he who identified the appellant at the time of arrest or that he was present at the time of arrest at the bus-stop. It further appears that no panchnama has been prepared showing the place of arrest or the time of arrest.
10. Thus, we are unable to accept the contention of Mr. Rawal, the learned APP, that in this case, it has been proved that the accused was arrested from the bus-stop as the deposition of the Investigating Officer regarding the place of arrest is not corroborated either by the oral evidence of the complainant, the PW.3, or the alleged informer or any other evidence.
11. Bhailalbhai Dheriyabbhai Vasava, PW.2, is one of the panch witnesses of recovery of muddamal articles. In his examination-in- chief, he has stated that he was called at Valia Police chowky. The clothes of the accused were changed and he was called to draw panchnama of the same. He was called at about half past 5 on 7th September 2005. The appellant had removed and given the clothes worn by him, which he has identified.
11.1 This witness has further deposed that thereafter, the accused had taken them on Dediyapada road at a distance of about 2 kms. from Netrang and the accused produced an axe which was lying beside a tree near the road. He has further stated that the police seized the said axe in the presence of the panchas. He has identified the axe.
11.2 In his cross-examination, he has stated that the place from where the axe was taken out and shown is at a distance of 500 to 600 ft. away from the house of the deceased, whereas in his examination- in-chief he has described the place as one situated at a distance of 2 kms. from Netrang. He has denied the suggestion that Muljibhai did not take out and show the axe. He has further stated that he was a driver and he knew the police personnel well. He has further stated that he put all the signatures together at the police station.
11.3 From the above evidence, it appears that although in the examination-in-chief this witness has stated that the axe was found 2 kms. from Netrang, in his cross-examination he has described the place as one situated at 500 to 600 ft. away from the house of the deceased, but there is no evidence to indicate whether the said 2 kms. from Netrang was towards the house of the deceased. Therefore, it is impossible to believe the evidence of such a witness regarding seizure of weapon.
11.4 Moreover, we have already pointed out that the recovery part of evidence was not brought to the notice of the appellant at the time of taking statements under section 313 of the Code of Criminal Procedure, as a result, the appellant had no opportunity to explain or disclose his stance.
12. We are quite conscious of the position of law that mere irregularity in putting question while recording the statements under section 313 of the Code of Criminal Procedure cannot be a ground for totally disbelieving the case of the prosecution if in a given situation there are eyewitness of the incident; however, in a case where there is no eyewitness, based on evidence given by panch witness regarding recovery, a person cannot be convicted for murder when neither the evidence of panch witness is satisfactory nor was the existence of such fact brought to the notice of the accused at the time of recording of statements under section 313 of the Code of Criminal Procedure. In the case of SHOBHIT CHAMAR [supra], relied upon by Mr. Rawal, there were oral evidence of the eyewitnesses and those pieces of evidence were brought to the notice of the accused. In such a situation, it was held that in the absence of any prejudice to the accused, mere irregularity in recording statements under section 313 does not vitiate the verdict. In the case before us, there is no eyewitness and the conviction is virtually based on recovery of the weapon and the wearing apparel but the evidence relating to recovery of those articles was not brought to the notice of the accused. Thus, the said decision is of no help to the prosecution.
13. In our opinion, in the facts of the present case, recovery of weapon has not been proved. The appellant having been arrested three days after the incident, handing over of wearing apparel to the police in the police station cannot be taken to be the evidence of recovery of the wearing apparel when admittedly the accused was not arrested in the presence of the PW.2.
14. Even the PW.3, the complainant, who according to the police was present at the time of arrest, has not stated in his evidence about the recovery of the wearing apparel or that at the time of arrest, the wearing apparel contained blood stains.
15. In the above state of affairs, we are of the view that the learned Sessions Judge was not justified in holding that the appellant was guilty of murder when there is no evidence of participation of the appellant in the murder of the deceased. Merely because the wife of the victim had eloped with the appellant, being tortured by her husband, the deceased, such fact cannot be a ground to implicate the appellant in the absence of any other cogent evidence regarding motive. We have already pointed out that the allegation of demand of customary-money by the deceased alleged in the charge as the motive of murder has not been substantiated by any evidence.
16. We, therefore, find that it is a fit case where the conviction of the appellant and consequent imposition of sentence should be set aside and the appellant should be acquitted of the charges levelled against him. We accordingly set aside the judgment and order dated 15th September 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Bharuch, in Sessions Case No. 125 of 2005. The appellant is acquitted of the charges levelled against him. The appellant is ordered to be set at liberty if not required in any other case. Fine, if paid, is ordered to be refunded to the appellant.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]