Yasinkhan @ Sendo Lambu Ibrahimkhan Pathan vs State Of Gujarat

The appellant accused has filed the aforesaid appeal under Section 374 of the Code of Criminal Procedure, 1973 challenging the judgment of conviction and order of sentence dated 26.7.2012 passed by the learned Additional Sessions Judge, Court No.12, Ahmedabad City, whereby the appellant is ordered to undergo life imprisonment for the offence punishable under Section 302 of the Indian Penal Code. He is further ordered to pay fine of Rs.5,000/­ and in default of payment of fine to undergo 02 months S.I. He is also convicted under Section 392 of the Indian Penal Code and ordered to undergo 06 years R.I. and to pay fine of Rs.3,000/­ and in default of payment of fine to undergo 01 month S.I. The learned trial Judge directed both the sentences to run concurrently as also set of stipulation.

The  prosecution  case  in  short  is  that  on 1.3.2011 at about 9:30 p.m. the appellant is said to have occupied the rickshaw driven by the deceased Jaswantsinh Khumansinh Chauhan bearing GJ­1­AV­471, as passenger and took rickshaw through Shastri Bridge, and from barren road to Vasna Barage towards Vishala Hotel and there the appellant is said to have committed murder of rickshaw driver ­ Jaswantsinh Khumansinh Chauhan by bricks blow and flooring tiles blow over his face and head. Thereafter the appellant is further alleged to have robbed the deceased of auto­ rickshaw as also Rs.3,00/­ in cash and driving license. At the same time, he is alleged to have taken away pent and pair of sleepers worn by the deceased and thereby the appellant is said to have committed an offence under Sections 302 and 392 of the Indian Penal Code.

To prove the case against the appellant the prosecution examined nearly 14 witnesses and several documents have been produced and proved.

Learned advocate Mr. P. H. Buch appearing for the appellant has taken us through the evidence of all the prosecution witnesses as also the documents produced and proved by the prosecution. His principal argument challenging the judgment of conviction and order of sentence is that the case rests on circumstantial evidence only and there is no link to connect the appellant - accused with the crime. He has contended that merely because the driving license alleged to have been recovered from the accused while he was apprehended, in addition to the rickshaw owned by the deceased, cannot be the ground to convict the appellant for a charge under Sections 302 or 392 of the Indian Penal Code. He has argued that though the deceased was missing from 1.3.2011 to 3.3.2011 till the appellant­accused was apprehended under Section 41(1)(d) of the Code of Criminal Procedure, 1973 no missing complaint was ever filed in respect thereof, though the father of the deceased Jashwantsinh is a retired police constable. He has further argued that he being police constable it was his first duty to inform the police about missing of his son for at least two days. That creates the doubt about the involvement of the appellant in the crime. The arrest of the appellant on 3.3.2011 itself is doubtful as it is based only on an information that one person is attempting to sell the stolen rickshaw. However, the prosecution has not adduced any evidence to prove that he has ever attempted to sell that very rickshaw from which he was found. It is his contention that in absence thereof his arrest becomes doubtful. Furthermore he has argued that the prosecution has failed to examine the police personnel who received the alleged information that someone as the name of the appellant is trying to sell the stolen rickshaw, is examined before the Court. The evidence of police witnesses who kept the surveillance at the area, from there also it is not coming on record that Dipak Babu Chokhelal, police constable, who received information was ever left alone at any place. Therefore the whole basis of receiving any such information creates doubt. While reading deposition of certain witnesses the learned advocate Mr. Buch has argued that the rickshaw in question is seized from the accused that was informed to the witness, by the police, who witnessed the recovery of the same. He has further argued that the prosecution has not brought any evidence with regard to deceased seen last in the company of the appellant so as to hold him responsible for the murder of the deceased. On such broad arguments the learned advocate Mr. Buch for the appellant has requested to quash and set aside the judgment of conviction and order of sentence passed by the trial Court.

As against that, learned APP Mr. Rasesh Rindani has supported the case of the prosecution proved as it is before the trial Court. Learned APP has argued that since the appellant was found in possession of rickshaw bearing registration No.GJ­01­AV­471 owned by the deceased and driving license issued by the authority in the name of deceased Jaswantsinh Khumansinh Chauhan, it is for the appellant to prove or at least offer explanation how he came in possession of such documents. This is the vital circumstance in the chain of circumstantial evidence for which there is no explanation offered by the appellant­accused except the denial. He has further argued that witnesses to the panchnamas like discovery of dead body, discovery of pent and a pair of sleepers alleged to have been worn by the deceased and robe (zabhbha - male costume worn in leisure time at home) worn by the accused himself, have supported the case of the prosecution which proves discovery of articles having blood stains over the same i.e. again a circumstance which corroborates the guilt of the accused. He has further argued that dead body of the deceased which is discovered at the instance of the appellant­accused was without the pent as also the pair of sleepers and discovery of the same at the instance of the accused clinchingly proves the guilt of the accused. Over and above that the learned APP argued that it is for the appellant to explain innocence of himself when the dead body of the deceased was for the first time discovered after two days of he went missing and under what circumstance the deceased has died. More particularly, when he was within the special knowledge about the place where dead body was lying, the muddamal articles, pent and a pair of sleepers worn by the deceased at the time when he left the home, could be discovered at his instance. Not only that, even the robe which he himself had worn at the time of incident having blood stains, though blood group could not be determined, it is established that it was a human blood and therefore, it is sufficient to seal the fate of the appellant­accused with regard to his involvement in the case.

We have gone through the depositions of all the witnesses, more particularly starting from deposition of P.W. No.13 Shanubhai Bashiruddin Pathan at Ex.39 who is the panch witness to the recovery of rickshaw bearing registration No.GJ­01­AV­471 owned by the deceased, found from his possession as also the recovery of license from the pocket of pent of the accused. After going through the deposition of the witness it is clear that in his presence the rickshaw was seized from the appellant as also a driving license in the name of Jaswantsinh, who is deceased, is also seized in his presence. Till this part of the investigation neither the name of the deceased was revealed to anyone nor even the actual death of the deceased was known to even his kith and kin. It is only after verification of driving license and the owner of rickshaw seized from the appellant­ accused, the father of the deceased, Khumansinh was called to the Investigating Officer where he disclosed that this rickshaw is of his son which he was plying and it is the license which is of his son who has not returned home since two days i.e. from 1.3.2011 evening hours. Though no such missing complaint appears to have been filed, the fact remains that after thorough interrogation the dead body of the deceased whose rickshaw and driving license was found from the appellant­accused could be discovered from the place led by the appellant­accused. Therefore keeping two panchas present alongwith the father of the deceased and the accused the place as shown by the appellant a dead body recovered which is identified by the father of the deceased at that very place, to be of his son. This is the most material and vital circumstance with regard to the special knowledge of dead body of the deceased lying at a particular place, is only with the appellant­accused, when by leading cogent and reliable evidence prosecution has discharged its burden. Therefore, the appellant­accused is supposed to account for the injuries over the deceased as also how the death of the deceased is caused. In the opinion of this Court the appellant­accused has failed to discharge that burden and therefore, it is the important material and main link in the chain of circumstance which is proved beyond the reasonable doubt by the prosecution.

Apart from that, there are other corroborative circumstances like discovery of pent and pair of sleepers worn by the deceased at the instance of appellant­accused in presence of P.W. No.4 - Rajkumar Ambikasing Rajput seized under a panchnama. P.W. No.4 Rajkumar Ambikasing Rajput has fully supported the case of the prosecution. The pent worn by the deceased, discovered at the instance of the appellant at the time of incident which was sent for FSL and serology report of FSL reveals that pent contained human blood marks though blood group could not be determined. Over and above that find of driving license in the name of deceased Jashwantsinh and the rickshaw owned and plied by the deceased without any explanation, except denial, would lead to only conclusion that appellant alone is within the knowledge about the death of the deceased and it being fact especially within his knowledge the appellant­accused has to prove the same as required under Section 106 of the Indian Evidence Act. The appellant­accused has failed to discharge his part of obligation and, therefore, keeping all the circumstances together it leads to only one conclusion that it is the appellant and only appellant who is responsible for the death of the deceased and he failed to account for the same and therefore, there is no other alternative but to hold him guilty for the murder of the deceased. Over and above that when he was found with the rickshaw owned and possessed by the deceased when he was apprehended after two days of deceased went missing, alongwith the driving license in the name of deceased it is for him to explain it. It is clear that he is also held guilty under Section 392 of the Indian Penal Code, in absence of any explanation offered by the appellant­accused, for legal and valid possession of rickshaw owned and possessed by the deceased.

Not only that, the doctor P.W. No.8, Ex.31 who performed postmortem over the dead body of the deceased in his deposition in unequivocal terms deposed that if anyone is hit by the muddamal pieces of brick, stone and piece of tiles, the injuries mentioned in Column No.17 of the postmortem report, external as well as internal, are possible. The very fact that those very articles were found near the place from where the dead body was discovered gets support from the deposition of the doctor as also the injuries found on the dead body as reflected in the postmortem report.

When prosecution has successfully discharged its initial burden of proof, it is for the accused, in view of the provision made under Section 106 of the Evidence Act, to explain that fact which is in his exclusive knowledge, when it is impossible or it is proportionately difficult for the prosecution to establish the facts which are strictly within the knowledge of the accused.

The muddamal articles like pieces of brick, pieces of tiles found near the place of offence, blood stained, duly recovered under a panchnama also bears human blood stains of blood group "B" which is that of deceased as it was found on the open shirt, banyan found on the dead body at the time of postmortem. The place of offence is interior from the main stream road that no one could have even heard the scream, if at all deceased screamed for help, and find of blood stained muddamal articles from that place supports the conclusion of guilt, over and above the circumstances earlier referred hereinabove. The argument that he could have screamed for help when the accused might have attempted to commit murder can be rejected outright on this ground alone. The area from where dead body was found is so barren, having no population in the surrounding area, no residential habitat and therefore the said argument has no legs to stand.

Though the motive behind the murder and the reason for causing murder is not clearly pleaded by the witnesses but recovery of auto­rickshaw and driving license of the deceased from the appellant when he was apprehended alongwith the fact of secret information received that the appellant is attempting to sell of the stolen rickshaw, the motive or intention in causing murder can be easily spelt out from the articles looted from the deceased and ultimately found from the possession of the appellant­accused.

12.The learned advocate Mr. P. H. Buch has relied on a decision rendered by the Hon'ble Supreme Court in the case of State of Rajasthan vs. Talevar and Anr., reported in (2011) 11 SCC 666, for the proposition that recovery of some of looted properties on the basis of disclosure statement made by the accused is not enough to draw adverse inference against the accused on the ground that recovery was not in close proximity of time to the date of incident. There cannot be any dispute on the said proposition but the decision has to be read as a whole and in the present case it is not the only material where not only looted articles are found from the appellant­accused, that too in a close proximity of time, even the dead body was also discovered at his own instance. Therefore, the decision cited by the learned advocate for the appellant is not applicable to the facts of the present case, even if the ratio propounded therein is to be followed. The another decision relied on by learned advocate Mr. P. H. Buch in the case of Madhu vs. State of Kerala, reported in (2012) 2 SCC 399, is for the proposition that the recovery of ornaments worn by the deceased pursuant to information furnished by the accused and he was last sighted close to the place of occurrence at or around the time of occurrence is not sufficient to convict the accused. The judgment relied on by the learned advocate is not at all applicable to the present case for the simple reason that it is neither the circumstance of last seen together is pressed into service in the present case nor only the discovery of articles worn by the deceased are pressed into service. Over and above finding accused with the articles owned and possessed by the deceased, finding of dead body of the deceased only and only at the instance of the accused for the first time alongwith discovery of missing clothes and articles worn by the deceased at the time of incident discovered at the instance of the accused completes the chain of circumstance to hold the appellant guilty for an offence charged against him.

The learned advocate Mr. P. H. Buch is unable to point out any non­consideration of material evidence or arguments made before the trial Court and we have minutely gone through the judgment rendered by the trial Court and we find no error in it committed by the learned Judge convicting the appellant for an offence under Sections 302 and 392 of the Indian Penal Code and hence we confirm the judgment rendered by the trial Court. Hence, we dismiss the appeal.