Gujarat High Court
Devid Raja Joyel @ Chidambaram vs State Of ... on 4 September, 2014
Bench: Ks Jhaveri, A.G.Uraizee
R/CR.A/82/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 82 of 2002
With
CRIMINAL APPEAL NO. 86 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the
Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil
judge ?
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DEVID RAJA JOYEL @ CHIDAMBARAM....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR EKANT G AHUJA, ADVOCATE for the Appellant(s) No. 1
MR. H.S. SONI, LEARNED APP for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 04/09/2014
Page 1 of 9
R/CR.A/82/2002 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. Both these appeals are directed against the selfsame judgment and order of sentence dated 19.01.2002 passed by the learned Additional Sessions Judge, Bharuch, therefore, they have been disposed of by this common judgment.
2. These appeals are directed against the selfsame judgment and order dated 19.01.2002, passed by the Additional Sessions Judge, Bharuch, in Sessions Case No.18 of 2002, whereby they were convicted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short "the IP Code") and are directed to suffer imprisonment for life and fine of Rs.200/, in default of payment of fine, they shall undergo simple imprisonment for fifteen days.
3. At the outset it needs to be stated that the appellants herein are absconding, but in view of the decision of the Division Bench of this Court passed in Letters Patent Appeal No.918 of 2001 on 17.02.2009, the present appeals are taken up for final hearing and are decided on merits.
4. The brief facts of the prosecution as emerged from the charge is that on 22nd September, 1999 between 12:15 am. and 7:00 am. the deceased Mohanbhai and appellants after unloading the coconuts Page 2 of 9 R/CR.A/82/2002 JUDGMENT from the truck went to Raja Transport for collecting transport charges. During that period due to unknown reason, the appellants killed the deceased by inflicting knife blows. A complaint in respect of this incident was lodged by the complainantSilvam Ramswami. In pursuance of this complaint, FIR vide D.I.G.C. Ankleshwar Police Station ICR No.170 of 1999 came to be registered.
5. The investigation was taken up and after usual investigation, chargesheet came to be filed against the appellants. The offence committed by the appellants was exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Bharuch under Section 209 of the Code, where it was registered as Sessions case No.18 of 2000. Charge vide Exhibit19 came to be framed against the appellant. He pleaded not guilty and claimed to be tried.
5.1. In order to bring home the charge against the appellant, the prosecution examined the following witnesses: Sl. Name of the Witness Ex. No. No. 1 Silvam Ramswami 22 2 Jitpalsing Basantsing 24 3 Ashokbhai Kerappa 25 4 Jitendrabhia Chaganbhai Patel 28 5 Bhagatbhai Balubhai 27 Page 3 of 9 R/CR.A/82/2002 JUDGMENT 6 Natwarbhai Chothabhai 29 7 Kishorbhai Chaganbhai Patel 30 8 Yogendrakumar Choudhary 31 9 Dr. Vinaben Prahladsing Makwana 36 10 Hitendra Jaggannath Choudhary 44 5.2. The prosecution also produced and relied upon the following documentary evidence during the course of the trial.
Sl.No. Particulars Exh. No. 1 Copy of Inquest Panchnama 33 2 Panchnama of the place of offence 34 3 Postmortem Note 37 4 Copy of original complaint 44 5 FSL report 40 6 Physical examination of the body 45 of the accused 7 Recovery / Discovery Panchnama 46
6. After conclusion of the trial, further statement under section 313 of the Code of the appellants came to be recorded. The defence in the further statement is of total denial. The learned trial Judge heard the arguments of learned APP and learned advocate for the appellants and after appreciating the evidence, recorded the judgment and order of conviction against the appellants as aforesaid. Therefore, the present appeals.
7. We have been taken through the oral and Page 4 of 9 R/CR.A/82/2002 JUDGMENT documentary evidence by learned advocate for the appellant and learned APP for the respondentState. We have independently and dispassionately applied our mind to this evidence.
8. Mr. Ahuja, learned advocate for the appellants has assailed the impugned judgment and order by submitting that the trial Court has passed the impugned judgment and order without appreciating the evidence on record. He contended that no any witness has supported the case of the prosecution and there is no eye witness to the incident in question, who testified that the appellants were the perpetrators of the murder. According to learned advocate for the appellants even the chain of circumstance is not complete. It is further contended that no recovery or discovery is made at the instance of the present appellants. Therefore, the involvement of the appellant becomes doubtful. Hence, he requested this Court to set aside the conviction of the appellants and be acquitted of all the charges levelled against them by granting them benefit of doubt.
9. Learned advocate for the appellant has relied upon the decision of the Apex Court in the case of Ramreddy Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh, reported in AIR 2006 SC 1656(1).
9.1. He also relied upon another decision of the Apex Court in the case of Sk. Yusuf Vs. State of West Page 5 of 9 R/CR.A/82/2002 JUDGMENT Bangal, reported in AIR 2011 SC 2283(1). Paragraph Nos.13, 14 and 28 of the said decision reads as under: "13. The persons particularly Rezwan Ali and Sirajul who had told these witnesses that they had seen the appellantaccused near the jhinga field at the relevant time had not been examined. More so, it has not been stated by any of the aforesaid witnesses or persons not examined that Sahanara Khatun (deceased) was also seen there along with Yusuf, appellant. It has not been deposed by any of the witnesses that deceased was seen talking with the appellant at all.
14. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide: Mohd. Azad alias Samin v. State of West Bengal, (2008) 15 SCC 449; and State thr. Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109).
28. This incident had occurred in a broad day light at 9.30 a.m.in the month of August in the agricultural field surrounded by agricultural field of others. Therefore, the presence of a large number of persons in the close vicinity of the place of occurrence can be presumed and it is apparent also from the statement of Aliful Rahmal (PW.6). Thus, had the deceased been with the appellant,somebody could have seen her at the place of occurrence. It cannot be a positive evidence as concluded by the courts below that none other than the appellant could commit her murder because no one else had been there at the place of occurrence. In fact, nobody had ever seen the deceased at the place of occurrence. Digging the earth by a single person to the extent that a dead body be covered by earth requires a considerable time and there was a possibility that during such period somebody could have seen the person indulged in any of these activities, though no Page 6 of 9 R/CR.A/82/2002 JUDGMENT evidence is there to that extent. The circumstances from which the conclusion of guilt is to be drawn in such a case should be fully established. The circumstances concerned "must or should and" not and may be"
established. In the instant case, the circumstances have not been established."
10. On the other hand, learned APP Mr.Soni has supported the impugned judgment and order of learned Trial Court and submitted that all the witnesses have supported the prosecution case in material particulars. The medical evidence is also in consistent with the oral evidence and therefore, there is no germane reason to interfere with the impugned judgment and order.
11. We have heard learned advocate for the appellants and learned APP for the respondentState and perused the material on record. We have been given our thoughtful consideration to the ocular and documentary evidence on the record of the case. It is required to be noted that the material witnesses i.e. P.W.4Jitendrabhia Chaganbhai Patel, P.W.5Bhagatbhai Balubhai,P.W.6Natwarbhai Chothabhai,P.W.7Kishorbhai Chaganbhai Patel and P.W.8Yogendrakumar Choudhary have not supported the case of the prosecution. Further, the P.W.1Silvam Ramswami, who is the complainant, in the crossexamination has categorically deposed that no quarrel took place between the deceased and the appellants. He also stated that he is not sure whether the death of the deceased is cause by murder or suicide and he has no Page 7 of 9 R/CR.A/82/2002 JUDGMENT suspicion on the appellants. This witness also stated that he had not lodged any complaint before the police.
12. It is also required to be noted that no discovery or recovery is made at the instance of the present appellants and no blood stains were found on the cloths of the appellants. Further, from the perusal of the evidence of the material witnesses, it is not come on record that the deceased was last seen together with the appellants herein. Even the prosecution has not been able to show the complete chain of circumstances. Thus, we are of the view that the involvement of the appellants in the crime become suspected.
13. In the circumstances, we are of the considered opinion that the learned trial Judge has committed an error in convicting the present appellants under section 302 read with Section 34 of the IP Code in absence of any cogent and reliable evidence and therefore, we are of the view that the appellants are required to be acquitted by giving them benefit of doubt.
14. For the foregoing reasons, the present appeals are allowed. The impugned judgment and order dated 19.01.2002 passed by the Additional Sessions Judge, Bharuch, in Sessions Case No.18 of 2000 is quashed and set aside. The appellants herein are Page 8 of 9 R/CR.A/82/2002 JUDGMENT hereby acquitted of all the charges levelled against them by granting them benefit of doubt. The fine, if any, paid by the appellants shall be refunded to them on proper identification. R & P be sent back forthwith. Registry is directed to send a copy of the writ of this order to the concerned jail authority forthwith.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) pawan Page 9 of 9