Kiranbhai @ Karan Bachubhai Vaghri vs State of Gujarat

Bankim N. Mehta, J.—The Appellant has preferred this appeal and challenged the judgment and order of conviction and sentence imposed by learned Additional Sessions Judge, Fast Track Court, Gandhinagar, on 30.7.2004 in Sessions Case No. 64 of 2003 convicting him for the offence under Sections 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of Rs. 5000/-, in default to undergo simple imprisonment for six months. The accused is acquitted of the offence u/s 135 of the Bombay Police Act.

According to prosecution, one Asha was sister of the accused and the accused had a suspicion that deceased Govindbhai Chhotabhai Datani had illicit relation with her and was chasing Asha. Keeping grudge of this, on 16.2.2003, the accused picked up quarrel with the deceased and on 17.2.2003 before 8.35 hours near Chetna Hotel at Dehgam caused injuries with iron pipe on the head of deceased Govindbhai. On account of injuries, Govindbhai died.

On the basis of FIR lodged by G.P. Bhati, Second Police Sub-Inspector, Dehgam Police Station, offence was registered against unknown person and investigation was started. During the course of investigation, dead body was sent for postmortem, photographs were taken and shown to the witnesses, statements of the witnesses were recorded, panchnama of the place where dead body was found was drawn. The accused was arrested. Panchnama of discovery of clothes was drawn. At the end of investigation, charge sheet came to be filed against the accused for the aforesaid offences in the Court of Judicial Magistrate, First Class, Dehgam. As the offence was triable by the Court of Sessions, the case was committed to the Court of Sessions, Ahmedabad (Rural) and thereafter, it was transferred to the Sessions Court at Gandhinagar and was registered as Sessions Case No. 64 of 2003. Learned Additional Sessions Judge, Fast Track Court, Gandhinagar, framed charge Exh. 3 for the aforesaid offences which was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded u/s 313 of the Code of Criminal Procedure, 1973, stated that he has been falsely implicated on account of business rivalry. After hearing learned advocate for the accused and learned Additional Public Prosecutor, trial Court convicted him and imposed the sentence as stated hereinabove.

Being aggrieved by the said decision of the trial Court, the Appellant has preferred this appeal.

We have heard learned advocate Mr. Dholakia for the Appellant and learned Additional Public Prosecutor, Mr. K.L. Pandya for the Respondent State at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court.

Learned advocate for the Appellant Mr. Dholakia submitted that the entire case rests on circumstantial evidence and the prosecution has not produced any cogent and reliable evidence to connect the accused with the offence. He also submitted that only evidence found against the accused is discovery of blood stained clothes allegedly worn by the accused at the time of commission of offence. Panchnama is not reliable. Therefore, the prosecution has failed to prove the case beyond reasonable doubt and the Appellant is required to be acquitted of the charges levelled against him.

Learned Additional Public Prosecutor Mr. Pandya submitted that the deceased had illicit relation with the sister of the accused and keeping grudge of this, the accused committed the offence. Evidence of PW-4 Kaliben Govindbhai Dantani and PW-9 Hareshbhai Popatlal Joshi indicate that there was quarrel between the accused and the deceased before the incident on the previous day of noticing the dead body. Therefore, the trial Court was justified in convicting the accused. He also submitted that as per panchnama the clothes discovered bear blood stain marks and the clothes belonged to the accused. Therefore, the prosecution has successfully proved the charge levelled against the accused and the trial Court has not committed any error in convicting the Appellant. The appeal is, therefore, required to be dismissed.

As regards homicidal death, medical evidence of PW-1 Dr Kalpeshbhai Bhaishankar Jaspara Exh. 6 and postmortem report Exh. 15 indicate that the deceased had died on account of injuries sustained by him and cause of death was haemorrhagic shock due to head injury. This evidence clearly establishes that death was homicidal. Learned advocate Mr. Dholakia does not dispute that death was homicidal. Therefore, prosecution has proved that death of deceased Govindbhai was homicidal.

As regards involvement of the accused in the offence, it is not in dispute that there is not an eye witness to the incident. The only evidence against the accused is that he had quarrelled with the deceased on the previous day of the incident and discovery of the clothes allegedly worn by the accused at the time of commission of offence.

In order to prove the motive, the prosecution has examined PW-4 Kaliben Govindbhai Dantani Exh. 19. Deceased Govindbhai was the husband of the witness. The witness has deposed that Asha was sister of the accused and the deceased went with Asha to Dehgam and had returned thereafter. She has also deposed that Asha wanted to stay as wife of her husband and her husband had relation with Asha and therefore, there were disputes between them but as she had small children, she continued the relation. She has also deposed that she did not have any suspicion for death of her husband but except the accused no one would kill him. In the cross examination, she has deposed that she used to see her husband with Asha in the train and the manner in which they spoke with each other, she had suspicion that they have relation. She has denied that she had quarrelled with the deceased Govindbhai. In view of this evidence, it clearly emerges that the witness had only suspicion that the deceased had relation with Asha. She has also stated that as her husband has been killed, it would be only the accused responsible for death. This evidence is not sufficient enough to infer that there were illicit relations between deceased Govindbhai and Asha and on that account accused committed the offence. Therefore, the evidence does not connect the accused with the offence.

Evidence of PW-9 Hareshbhai Popatlal Joshi Exh. 30 indicates that on the previous day at about 8.30 in the evening he saw the accused and deceased Govindbhai quarrelling and he intervened and got them separated. In the cross-examination, this witness has admitted that after the incident, all dispersed and he came to know that Govindbhai died after three days but did not inform the police about the same. This evidence only indicates that on the previous day of the dead body found there was quarrel between the accused and the deceased and both of them were separated by him. It is also significant that this witness came to know about death of Govindbhai after three days but he did not inform the police about the same. It also appears from the evidence that no complaint was filed about missing Govindbhai by PW-4 Kaliben and dead body was found after considerable time. Therefore, it is difficult to believe that quarrel between the accused and the deceased was the cause for the accused to commit murder of the deceased. It also appears that after the alleged incident of quarrel, the accused and the deceased were separated. Thereafter, on the next day dead body was found. Therefore, this evidence did not indicate that the deceased was last seen in the company of the accused and thereafter his dead body was found. In our view, the trial Court committed error in convicting the accused on the basis of this evidence.

The prosecution has also produced panchnama of discovery of clothes Exh. 29 and has examined panch witness PW-8 Vinodbhai Atmaram Jadav Exh. 28. It appears from the evidence of the panch that the accused allegedly showed willingness to discover the clothes worn by him at the time of commission of offence. This witness has also admitted that the contents of the panchnama were written by the police and he only signed it. Panchnama Exh. 29 also indicates that the clothes were discovered from public road. Therefore, it is difficult to believe that the accused showed willingness to discover clothes worn by him at the time of commission of offence. In view of the fact that panch only signed the panchnama, it cannot be relied upon to connect the accused with the offence.

In view of the above, in our considered view, the trial Court committed serious error in relying on the prosecution case to convict the accused. Therefore, the impugned judgment and order of conviction and sentence passed by the trial Court is required to be set aside and the accused is required to be acquitted of the charges levelled against him.

In the result, the appeal is allowed. The judgment and order of conviction and sentence passed by learned Additional Sessions Judge, Fast Track Court, Gandhinagar, in Sessions Case No. 64 of 2003 on 30.7.2004 is set aside. The Appellant is acquitted of the charges levelled against him. He is in jail. He shall be released forthwith if not required in any other case. Fine, if any, paid shall be refunded to the Appellant.