Salamsinh Jivabhai Malivad vs State of Gujarat

R.M. Chhaya, J.—Present appeal arises out of judgment and order rendered by learned Additional Sessions Judge, 5th Fast Track Court, Panchmahals at Godhra on 31.01.2005 in Sessions Case No. 247 of 2004, convicting the Appellant-accused for the offence of murder of Rameshbhai Magansingh Malivad u/s 302 of the Indian Penal Code, 1860 (''IPC'' for short) and sentencing him to imprisonment for life and to pay a fine of Rs. 500/-, in default to undergo further rigorous imprisonment for three months. The Appellant was acquitted u/s 135 of the Bombay Police Act, 1951 by that very judgment.

The brief facts of the case are that the deceased had gone to village Dhamnod, Tal. Shahera, Dist. Panchmahals on 14.05.2004 and met Jeniben, with whom the deceased had allegedly illicit relation. On the said day, at about 22 hrs. or around the said time while the deceased was sleeping in the courtyard of the house of his father, Magansinh Fatehsinh Malivad (PW-8), who is the first informant, the Appellant-accused went there with deadly weapon like dharia and with an intention to cause severe injuries assaulted the deceased and gave blow on his neck.

Pursuant to the aforesaid offence, an F.I.R. came to be lodged on 15.05.2004 by the first informant (PW-8), who happens to be the father of the deceased, evidence was collected and after full-fledged investigation charge-sheet was submitted before learned Judicial Magistrate, First Class, Shehra, who, in turn, committed the case to the court of Sessions and Sessions Case No. 247 of 2004 came to be registered.

Ultimately, charges were framed by the trial Court against the accused below Exh.3 for the offences punishable u/s 302 of the IPC and Section 135 of the B.P. Act. The accused had pleaded not guilty to the charges and claimed to be tried.

After considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in proving the charges against the Appellant and recorded conviction by the judgment impugned in this appeal.

Heard Mr. B.Y. Mankad for Mr. U.M. Shastri, learned advocate appearing on behalf of the Appellant, while the Respondent-State has been represented by the learned A.P.P. Mr. D.C. Sejpal.

According to Mr. Mankad, the conviction is not well-founded. He submitted that there is no eye-witness to the alleged incident and the case of the prosecution is based only on circumstantial evidence. He further submitted that the prosecution has not been able to prove the case and the chain of circumstances is not complete. Mr. Mankad further submitted that the motive is totally missing and, therefore, foundation of the case of the prosecution is absent. Mr. Mankad further contended that there are material contradictions and inconsistencies in the oral testimony of the prosecution witnesses. It was vehemently submitted that the trial court has passed conviction mainly on the basis of the oral testimony of the PW-16, Investigating Officer, (Exh.32) and even though the witnesses have not supported the case of the prosecution, the trial court, relying upon oral testimony of Investigating Officer, has passed the order of conviction and sentence and, therefore, Mr. Mankad submitted that the trial court has wrongly believed the case of the prosecution and hence, submitted that the appeal may be allowed by setting aside the judgment and order of conviction and sentence.

Learned A.P.P. Mr. D.C. Sejpal has opposed the present appeal and has contended that the learned trial Court was perfectly justified in its judgment of conviction and sentence looking to the evidence on record of the case. Mr. Sejpal submitted that the prosecution has been able to establish the complete chain and there is no inconsistency in the oral testimony of the witnesses and that there are no contradictions in the medical evidence. Mr. Sejpal, therefore, submitted that the appeal is devoid of any merits and the same deserves to be dismissed.

We have examined the record and proceedings in context of the rival submissions. Upon reading the evidence on record, we find that the incident occurred during night hours and there is no eye-witness to the incident.

10 .Upon reading the evidence of PW-8, Magansinh Fatehsinh Malivad, (Exh.23), we find that the accused and the deceased were related with each other. PW-8 has stated that on 13.05.2004 there was a marriage in his family and, therefore, PW-8 and his family members had gone to attend the said marriage but the deceased, who was the elder son of PW-8, stayed at home to take rest. PW-8 has further stated that when the marriage party was ready to go, he sent his younger son-Mahesh to call for the deceased and at that point of time Mahesh informed him that someone has assaulted the deceased and on receiving such information PW-8 and others went to his house and found that the deceased was lying in the courtyard and had received injury on his neck and he was bleeding and the deceased was dead. PW-8 has further stated that the accused had raised some dispute in relation to the land purchased from his uncle. During the cross-examination PW-8 has denied that he has wrongly implicated the accused.

We find that the prosecution has also examined P Ws-9, 10, 11, 12, 13, 14, 15 and 16, who are relatives of the original complainant and the deceased.

Upon reading the evidence of PW-9-Maheshkumar Magansingh Malivad, we find that he has not seen the occurrence. We find that he has stated that on seeing that his brother has been assaulted and has received injuries on his neck, he immediately went to call his father PW-8. We also find that PW-9 has stated that while he was going towards his house to call his brother (the deceased) to the place from where all his family members, including the deceased were to join marriage party, and when he reached half way he met the Appellant-accused, who had dharia and sickle in his possession.

In his cross-examination PW-9 has stated that the Appellant-accused met him between his house and the house of the Appellant-accused and it was the road for going to the farm. He has further stated that there were no lights and he could identify the Appellant-accused when he came close to him.

Upon reading of evidence of other P Ws-10, 11, 12, 13, 14, 15 and 16, we find that none of them have seen the occurrence. Upon reading evidence of PW-16, Investigating Officer, we find that he has narrated the facts as to how the investigation was carried out and has further stated how the different panchnams were prepared and we also find that he has denied contradictions in oral testimony of other prosecution witnesses.

The picture, therefore, emerges is that there is no eye-witness to the alleged incident and even the evidence of PW-9 Mahesh reveals that he had seen the Appellant-accused going towards his house on public road having dharia and sickle in his possession. All the witnesses have deposed that they have not seen the occurrence and are not aware about the incident. We also find that there is major inconstancy in the statements of the accused. We find that the prosecution has not been able to establish the motive which is an important factor in a case, which is based on circumstantial evidence. The ''motive expressed by PW-8, the first informant and PW-9 Mahesh is different and, therefore, we find that the prosecution has not been able to prove the ''motive'' itself. Oral testimony of the witnesses, who are close relatives of the deceased and are ''interested witnesses'' and on close scrutiny of the evidence, we find that their oral testimony is not trustworthy. We also find that PW-9 Mahesh has merely seen the accused-Appellant on road between the place of occurrence and the house of the accused armed with dharia and sickle that by itself would not sufficient to infer that the accused-Appellant had assaulted the deceased. We also find that the accused-Appellant and the prosecution witnesses are also relatives and known to each other. We also find that there is no further corroboration of the same in the evidence. Full chain of circumstances is to be proved beyond the reasonable doubt and the same cannot be proved by crutches provided by evidence of investigating officer.

''Motive'' is an important circumstance in a prosecution case, which is based on circumstantial evidence and in absence of any motive merely version that the deceased had illicit relation with Jeniben without there being any prior incident or complaint in relation to such an illicit relation, no motive can be attributed on the part of the Appellant so as to commit murder of deceased-Rameshbhai.

The prosecution has thus, not been able to prove the relativity between the alleged crime against the present Appellant and hence, the conviction cannot be based only on such hypothesis, in absence of vital evidence of motive.

The prosecution has thus, not been able to prove full chain of circumstances relied upon by it and the prosecution is expected to prove the case through circumstantial evidence beyond the reasonable doubt, by establishing circumstances to its hilt so as to link the offence and in the present case, the prosecution has failed to do so. The trial court has thus, erred in convicting the present Appellant. The appeal, therefore, deserves to be allowed.

For the foregoing reasons, the appeal is allowed. The judgment and order of conviction and sentence dated 31.01.2005 passed by learned Additional Sessions Judge, 5th Fast Track Court, Panchmahals at Godhra on 31.01.2005 in Sessions Case No. 247 of 2004 is hereby set aside. The Appellant is acquitted from the charges levelled against him. The accused-Appellant SALAMSINH JIVABHAI MALIVAD be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to him.