Babubhai Valjibhai Pansuriya vs State of Gujarat and Others

K.S. Jhaveri, J.—1. Present appeals are directed against the judgment and order dated 16/03/2006, passed by the learned Presiding Officer, 1st Fast Track Court, Surat, in Sessions Case No. 103 of 2005, whereby, the appellants - original accused came to be convicted for the offences punishable under Sections 302, 201 r/w. 114 of the Indian Penal Code, 1860 (for brevity, ''the IPC'') and Section 135 of the Bombay Police Act and for the offence punishable under Section 302 r/w. 114 of the IPC, sentenced to undergo life imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine, to undergo further simple imprisonment for six months. For the offence punishable under Section 201 r/w. 114, they were sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 1,000/- each and in default of payment of fine, to undergo, further simple imprisonment for six months and for the offence punishable under Section 135 of the Bombay Police Act, they were sentenced to undergo rigorous imprisonment for four months and a fine of Rs. 100/- each and in default of payment of fine, to undergo, further simple imprisonment for 15 days. Accordingly, present appeals have been filed by the appellants - original accused against conviction.

1.1 Since, both the appeals arise out of the same judgment and order, they are heard and being decided by this common judgment.

Filtering the unnecessary details, the facts of the prosecution case are that between 19:00 hours on 01/11/2004 and 10:00 a.m. on 02/11/2004, in the sim of village Punagam, near Vankal bridge at Kankarapar - Surat canal, the appellants - original accused allegedly assaulted deceased - Nagjibhai Kalyanbhai with knives on different parts of the body to death and thereafter, with a view to escape prosecution, disposed of the dead body of the deceased by throwing it in the nearby canal and thereby, they committed the offence, alleged against them, for which a complaint came to be lodged.

2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Surat.

2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence.

2.3 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:

2.4 At the end of the trial, Further Statements of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, ''the Code'') were recorded in which, they pleaded not guilty and stated that they have been falsely implicated in the crime. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused, as aforesaid, by impugned judgment and order.

2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellants - original accused have preferred the present appeals.

Though, nobody appeared for the appellant - original accused No. 1, the issue being identical and arise out of the same judgment and order, we took up the matters. We have heard Mr. Ekant Ahuja, learned advocate for the appellants - original accused Nos. 2 and 3 and Mr. Hardik Soni, learned Additional Public Prosecutor for the State.

3.1 Mr. Ahuja, learned advocate for the accused, submitted that the trial Court has committed a grave error in convicting the accused. It was contended by him that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led before it and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence, alleged against the accused. He submitted that the case is based on circumstantial evidence and the prosecution has failed to prove the chain of circumstances to link the appellants - accused with the crime and the said aspect, the learned trial Judge has failed to appreciate and thereby, has committed a grave error of law and evidence on record in convicting the accused. He took this Court through the oral as well as the entire documentary evidence, more particularly, the evidence of PW-1 -Kanchanben Nagjibhai Bhalani, the Complainant & widow of the deceased, exh. 16, evidence of PW-2 - Sejalben Nagjibhai Bhalani, exh. 19, PW-6 - Haribhai Madhabhai, exh. 29, PW-7 - Dhirubhai Naranbhai Patel, exh. 32, PW-8 - Karsanbhai Khimbhai Ahir, exh. 35 and last but not the least, the medical evidence and contended that in view of the medical evidence forthcoming on record, the post mortem of the deceased was carried out on 02/11/2004 at 4:55 p.m. and the doctor has opined that the death of the deceased was prior to 24 to 30 hours and therefore, prior to 6:00 p.m. of 01/11/2004 or about 12:00 at noon of 01/11/2004. He further submitted that, even if the depositions of PW-1 - Kanchanben Nagjibhai Bhalani, the Complainant & widow of the deceased, exh. 16 and PW-2 - Sejalben Nagjibhai Bhalani, exh. 19 are taken into consideration, they had seen only the accused No. 1 lastly together with the deceased, however, in view of the accused No. 1 being handicap and physically disable, it was not possible for him to commit such a crime. The learned advocate for the accused further contended that, it has come on record that the deceased was indebted and many persons were used to come to his house for recovery and the said aspect is substantiated by the evidence of the complainant - widow of the deceased itself. He further submitted that there are serious contradictions and improvements in the versions of the prosecution witnesses and the fact that there is nothing on record to link the accused with the crime and the accused were involved in the crime and there is no substantive piece of evidence on record to that effect and in view of the fact that the prosecution has not fully proved the case against the accused beyond reasonable doubt, the trial Court has misread the evidence on record and has committed a serious error in convicting the accused and the conviction and sentence imposed upon accused being unsustainable, he requested that the accused may be given benefit of doubt and acquitted in view of lack of evidence and/or material contradictions, omissions and improvements in the prosecution case.

Whereas, Mr. Soni, learned Additional Public Prosecutor, for the State supported the impugned judgment and order of the trial Court. He also took us through the evidence on record, more particularly, the evidence of PW-1 - Kanchanben Nagjibhai Bhalani, the Complainant & widow of the deceased, exh. 16 and PW-2 - Sejalben Nagjibhai Bhalani, exh. 19 and vehemently submitted that, by the evidence of these witnesses, it is clearly established that the deceased and the accused were lastly seen together and PW-6 - Haribhai Madhabhai, exh. 29, has clearly identified all the accused and in view of the evidence on record, more particularly, the medical evidence and when, the trial Court has dealt with each and every aspect of the matter minutely, this Court may not interfere in appeal and requested to dismiss the appeals filed by the accused against conviction.

We have examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon''ble Apex Court. It is true that PW-1 - Kanchanben Nagjibhai Bhalani, the Complainant & widow of the deceased and PW-2 - Sejalben Nagjibhai Bhalani had seen the original accused No. 1 going out after 7:00 o''clock but if the medical evidence is referred, it appears that the incident had occurred prior to time, the accused No. 1 left. The other important aspect which cannot be lost sight of is, how these witnesses viz. PW-1 and the PW-2 reached to the dead-body and as to who had informed them about the same, is not established from the evidence forthcoming on record. Moreover, the prosecution has not examined the crucial witness i.e. the person who had informed these witnesses about the same, for the reasons best known to them. Further, as per the medical evidence, the death of the deceased had occurred prior to 24 to 30 hours. In the circumstances, though the death of the deceased was homicidal, but in our opinion, there are serious lapses in the case of the prosecution and the prosecution has not successfully proved the case against the accused beyond reasonable doubt. It is well-settled law that how strong the suspicion may be, but a person cannot be convicted on mere suspicion and the prosecution must prove its case beyond reasonable doubt, which in the case on hand, is not the case. Accordingly, in view of the aforesaid material contradictions, omissions and lapses on the part of the prosecution, we find that the trial Court has come to a wrong conclusion. Further, the learned Additional Public Prosecutor is not in a position to show any evidence to come out from the aforesaid lapses. In that view of the matter, we are of the considered opinion that the Court below has committed an error in convicting the appellants - original accused and they are required to be given benefit of doubt and the impugned judgment and order is required to be set aside by allowing the present appeals and the accused are required to be acquitted from the charges levelled against them. However, at the same time, it is also required to be clarified that the accused are being given benefit of doubt and we are not exonerating them fully.

In view of the aforesaid discussion, present appeals, filed by the appellants - original accused against conviction, succeed and the impugned judgment and order dated 16/03/2006, passed by the learned Presiding Officer, 1st Fast Track Court, Surat, in Sessions Case No. 103 of 2005, is hereby set aside and the appellants - original accused are acquitted of the charges levelled against them for the offences punishable under Section 302, 201 r/w. 114 of the IPC and Section 135 of the Bombay Police Act by giving benefit of doubt. The accused are reported to have been on bail and hence, they are not required to surrender to custody, except they are required in any other offence. Their bail bonds shall stand cancelled. Registry to return the R&P, if any, to the trial Court forthwith.