Nagarji @ Nagji Dhulaji Thakor vs State of Gujarat

A.L. Dave, J.—These five appeals arise out of a judgment and order dated 22nd September, 2005 rendered in Atrocities Case No. 14 of 2005 by Sessions Court, Himatnagar.

The Appellants in these appeals were the accused before the trial Court and they came to be convicted for offences punishable u/s 302 read with Sections 120B and 34 of IPC, Section 201 read with Sections 120B and 34 of IPC and u/s 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and were sentenced to undergo imprisonment for life, R.I. for 5 years and S.I. for 2 years, respectively, with a fine of Rs. 25,000/-, Rs. 5,000/- and Rs. 2,000/-, respectively, to be paid by each of the Appellants and hence, these appeals.

The prosecution case is that accused No. 4, Nareshkumar Ambalal Makwana Appellant in Criminal Appeal No. 2522 of 2005 and accused No. 5, Gomtiben Wd/o. Dahyabhai Ramabhai Vankar, Appellant in Criminal Appeal No. 2434 of 2005 had developed an illicit relationship and with a view to have unobstructed relationship, they conspired to cause the death of Dahyabhai Ramabhai Vankar husband of accused No. 5. It is further the case of the prosecution that Accused No. 1-Prahladji Ranchhodji Thakor, Accused No. 2-Nagarji @ Nagji Dhulaji Thakor and Accused No. 3-Pravinji @ Pabji Shankarji Thakor also joined the conspiracy. The prosecution further urged that all five acted in furtherance of their common object and caused death of Dahyabhai Ramabhai Vankar. The incident was not seen by anyone. Deceased was, however, missing for about one week after he left for his cattle business. His dead body was found on 1.12.2004 in the outskirts of village Chandap, on the bank of river Sabarmati. The dead body had multiple injuries on it and therefore, police was informed about the same. The police registered the offence and started investigation and, ultimately, filed charge-sheet in the Court of JMFC, Idar and, who in turn, committed the case to the Court of Sessions and Sessions Case / Atrocity Case No. 14 of 2005 came to be registered.

It was alleged that Accused No. 1-Prahladji Ranchhodji Thakor had inflicted multiple knife blows to the deceased and, thereby, caused his death. Accused No. 4- Nareshkumar Ambalal Makwana used iron tommy to cause injury to the deceased and caused his death.

Charges were framed against the accused at Exh.6 for offences punishable under Sections 302, 201, 34 and 120B of IPC and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The five accused-Appellants pleaded not guilty to the charges and came to be tried.

The trial Court after considering the evidence led before it by the prosecution came to a conclusion that the accused persons had motive. They had conspired together and committed murder of the victim Dahyabhai.

We have heard learned advocates for the Appellants and the learned APP.

Learned advocate for the Appellants indicated that the prosecution has failed to prove any motive so far as Accused No. 1-Prahladji Ranchhodji Thakor, Accused No. 2-Nagarji @ Nagji Dhulaji Thakor and Accused No. 3-Pravinji @ Pabji Shankarji Thakor are concerned. It was submitted that in the absence of direct evidence, motive would be a major link to connect the accused persons with the offence. It was submitted that in the absence of any eye-witness, there is no material to know how the death of the deceased was caused and by whom. The deceased, as per the evidence, had left the house in connection with his cattle business and the family started looking for him as he did not return for about a week''s time. When the dead body was found, it did not have any clothes on it. It was not identified by anyone till it was cremated. It is only after the cremation that brother of the victim identified the dead body on the basis of photograph. Postmortem note would show that the dead body was not degenerated and rigor mortis was in disappearing stage. Therefore, it would mean that the death may have occurred about 36 hours prior to postmortem, whereas, the deceased had left the house about one week prior to the detection of the dead body.

Having examined the record and proceedings of the case, we fail to find any evidence on record, so far as concept of last seen together is concerned. The trial Court has, however, observed that this is proved through the evidence of Rameshbhai Varubhai Rathod, Exh.75. The evidence indicates that they started looking for the deceased as he did not come back for 10 days. The witness said that he can not say with whom the deceased had left 10 days prior to the detection of the dead body. Learned trial Judge has relied on his evidence to observe that evidence of this witness establishes the element of last seen together, which is not borne out from the record and is, therefore, legally perverse.

So far as accused No. 1- Prahladji Ranchhodji Thakor is concerned, he is alleged to have caused knife injuries to the deceased. At the cost of repetition, we may say that there is no direct evidence. There is no evidence that accused No. 1- Prahladji Ranchhodji Thakor had left in company of the deceased. There is no evidence to show that accused No. 1- Prahladji Ranchhodji Thakor was seen in proximity of time and place of the incident. Accused No. 1- Prahladji Ranchhodji Thakor is alleged to have discovered the knife. However, the panch witnesses did not support the discovery. It is also worth to note that the knife did not carry any bloodstains. As such, there is no evidence against accused No. 1- Prahladji Ranchhodji Thakor.

So far as Accused No. 2-Nagarji @ Nagji Dhulaji Thakor and Accused No. 3-Pravinji @ Pabji Shankarji Thakor and Accused No. 5-Gomtiben Wd/o. Dahyabhai Ramabhai Vankar are concerned, there is no evidence to show their involvement in the incident nor is there any evidence to show that Accused No. 2-Nagarji @ Nagji Dhulaji Thakor and Accused No. 3-Pravinji @ Pabji Shankarji Thakor had any motive. Accused No. 5-Gomtiben Wd/o. Dahyabhai Ramabhai Vankar, of course, is alleged to have motive but motive itself will not prove the case unless other circumstances link up the accused with the offence. There is not an iota of evidence about Accused No. 5-Gomtiben Wd/o. Dahyabhai Ramabhai Vankar being involved in the death of her husband. Proof of only motive cannot prove the case of murder. Other circumstances have to be established by the prosecution beyond reasonable doubt against the accused. There is no evidence to show their presence in proximity of time and place of incident. As such, Accused No. 2-Nagarji @ Nagji Dhulaji Thakor and Accused No. 3-Pravinji @ Pabji Shankarji Thakor and Accused No. 5-Gomtiben Wd/o. Dahyabhai Ramabhai Vankar should get benefit of lack of evidence. Their conviction cannot be upheld.

So far as Accused No. 4- Nareshkumar Ambalal Makwana is concerned, he is alleged to be the paramour of Accused No. 5-Gomtiben Wd/o. Dahyabhai Ramabhai Vankar. It is alleged that he used iron tommy to cause injury to the deceased and caused his death. The iron tommy has been discovered by him but no blood was found on it. The last seen evidence is absent and there the trial Court has committed an error as discussed hereinabove.

Clothes of accused No. 1- Prahladji Ranchhodji Thakor and Accused No. 4- Nareshkumar Ambalal Makwana were sent to FSL for examination. Pant of Accused No. 4- Nareshkumar Ambalal Makwana contained human blood but the group was not identified, whereas pant of accused No. 1- Prahladji Ranchhodji Thakor had marks of human blood of Group-B. We may note that discovery of these two clothes is not established by the prosecution. The panch witnesses have not supported the prosecution case. The clothes which were found to contain human blood of Group-B were recovered from the place of incident but there is no evidence on identity of these clothes being that of the deceased or anyone connected with the incident.

The trial Judge has convicted the accused-Appellants for offences punishable u/s 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as well. It is not possible to discuss how the provisions of the said act would apply to Accused No. 4- Nareshkumar Ambalal Makwana and Accused No. 5-Gomtiben Wd/o. Dahyabhai Ramabhai Vankar as they themselves belong to scheduled caste. As we have discussed, there is not an iota of evidence to show the involvement of Accused No. 1-Prahladji Ranchhodji Thakor, Accused No. 2-Nagarji @ Nagji Dhulaji Thakor and Accused No. 3-Pravinji @ Pabji Shankarji Thakor in the incident. The trial Court failed to appreciate these aspects. The reasons recorded by the trial Court for recording conviction are not borne out from the record. The conviction on this count is, therefore, ill founded and cannot be permitted to stand.

In view of the above discussion, the appeals are allowed. The judgment and order of conviction and sentence recorded by the Court below in Sessions Case No. 14 of 2005 for offences punishable under Sections 302, 201, 34, 120(B) of Indian Penal Code and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is hereby set aside. The Appellants-accused are acquitted of the charges with which they were charged. Accused No. 1-Prahladji Ranchhodji Thakor, Accused No. 2-Nagarji @ Nagji Dhulaji Thakor, Accused No. 4-Nareshkumar Ambalal Makwana and Accused No. 5-Gomtiben Dahyabhai Ramabhai Vankar are ordered to be set at liberty forthwith if not required in other case. Accused No. 3-Pravinji @ Pabji Shankarji Thakor is on bail. His bail bond shall stand cancelled. Fine, if any, paid shall be refunded to the concerned accused.