Gujarat High Court
Abidbhai vs The on 4 May, 2010
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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CR.A/547/2005 10/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 547 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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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ABIDBHAI
JIVABHAI GADHWALA - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
G RAMAKRISHNAN for
Appellant(s) : 1,
MR HH PARIKH ADDL. PUBLIC PROSECUTOR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 04-05/05/2010
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE A.L.DAVE) The appellant by present appeal challenges the judgment and order rendered by Sessions Court, Rajkot in Sessions Case No.5 of 2004 rendered on 24.1.2005. The Sessions Court convicted him for the offence of murder of Ilmuddin Rahimbhai Bhorania allegedly caused between 16-00 hours of 11.8.2003 and 18-30 hours of 12.8.2003 near Jadeshwar temple area of Vankaner, and sentencing him to undergo imprisonment for life with fine of Rs.5,000/-. The trial Court also ordered the appellant to pay compensation of Rs.25,000/- to the heirs of the deceased, and, in the event the appellant not paying the same, to recover the same as revenue dues.
2. The facts of the case, in brief, can be stated thus :-
2.1 The appellant was in love with Najma Aamadbhai (PW-3). However, Najma was engaged to deceased Ilmuddin Rahimbhai Bhorania. The appellant still insisted that Najma should maintain the relations and marry him. It is the case that on 11.8.2003 there was a fair near Jadeshwar temple and Ilmuddin along with two others, namely, Rahimbhai Saudibhai and Manjoorbhai Ibrahimbhai, went to the fair. There they all met around 3-00 PM and then Ilmuddin, Manjoor and Rahim left. After sometime, when Najma again met them, they told her that Abid Jiva, the appellant, had met them and Ilmuddin went along with Abid Jiva as Abid told him that he had some work. Somehow, thereafter, they did not come across Ilmuddin. Thereafter, they met Abid and inquired about Ilmuddin and Abid told them that some friend of Ilmuddin from Morbi had come and Ilmuddin went along with him. Thereafter since Ilmuddin was not traced, a search was made and it is stated that the appellant also joined the search party. An information was given to the police about missing of Ilmuddin.
2.2 The next day i.e. on 12.8.2003 at about 18-30 hours, the dead body of Ilmuddin was found at a distance of about 7 ft. from the temple in a strangulated condition with the help of clutch wire of a motor-cycle parked under a tree and the wire was wrapped around neck, and stem of the tree. The skin of the dead body had started peeling off and fluid was coming out of it. Maggots were noticed and the dead body was then sent for post-mortem. The doctor opined that the death was as a result of strangulation with wire and the death had occurred within 4 to 6 hours of having taken meals as semi-digested food was found from the stomach. Rahimbhai Fatehbhai Bhorania (PW-1), father of the deceased, thereafter lodged an FIR, on the basis of which, offence was registered and investigated. The police found that there was sufficient evidence against the accused-appellant and, therefore, filed charge-sheet in the Court of JMFC, Morbi, who, in turn, committed the case to the Court of Sessions and Sessions Case No.5 of 2004 came to be registered.
3. Learned advocate Mr Ramakrishnan submitted that there is no direct ocular evidence to connect the accused-appellant with the crime. The circumstantial evidence do not form a complete chain of circumstances to connect him with the crime. In the first instance, he submitted that there is no evidence to show that the deceased took food 4 to 6 hours prior to the alleged time of his death and there is positive evidence that he took food about 10 hours prior to the alleged time of the incident. The prosecution has, therefore, failed to prove the time of death beyond reasonable doubt. Mr Ramakrishnan submitted further that the incident is alleged to have occurred in close proximity of a temple where there was a fair and a large number of people were moving around. It is impossible that such a heinous act would go unnoticed. Mr Ramakrishnan submitted further that even after the incident, the dead body has remained unnoticed for about 26 hours, which is also not probable. The body had started stinking and there were already maggots and, therefore, it would have been noticed if it was lying there for a long time. Another important submission that was raised by Mr Ramakrishnan is that as per the prosecution case, the deceased was strangulated with the help of clutch wire of a motor-cycle. The wire was wrapped around the neck and then pulled with force. This would certainly have caused some resistance and force, resulting into some injury on the fingers or palm of the accused, whereas no such injury is found on the person of the accused. Mr Ramakrishnan submitted further that the investigating agency has not made any inquiry in the direction of the friend from Morbi of the deceased with whom he had allegedly left.
3.1 It was also submitted that the purchase of clutch wire by the appellant is proved through evidence of the vendor, but his evidence, if seen, would clearly indicate that he has deposed only on a faint memory. He does not give any details as to when the wire was purchased. No contemporaneous record is also produced to show the transaction of sale. Last but not the least, the appellant himself joined the searching party in the evening as the deceased was not found. This conduct of the appellant would reflect his non-involvement in such a heinous crime. Mr Ramakrishnan, therefore, submitted that the trial Court has overlooked these aspects and benefit of doubt may be given to the appellant.
4. Learned APP Mr Parikh, on the other hand, has opposed this appeal. According to him, the dead body was found in a strangulated condition. The appellant is proved to have purchased clutch wire of motor-cycle. He was seen lastly in company of the deceased within the proximity of time and place wherefrom the dead body is found and this aspect is proved from the deposition of witnesses Rahim and Manjoor. The medical evidence shows that the strangulation was possible with clutch wire of a motor-cycle. The appellant was in love with Najma with whom the deceased was engaged and with a view to clear his path of marriage with Najma, the appellant has done away with the deceased with whom Najma was engaged. All these factors are proved. The trial Court is, therefore, justified in convicting the appellant. The appeal may, therefore, be dismissed.
5. We have examined the record and proceedings in the context of rival submissions.
6. We find that Rahimbhai Fatehbhai Bhorania (Exh.4) is the father of the victim and his FIR is based on derived knowledge and is not very significant so far as the occurrence is concerned. The next important witness is Najmaben Aamadbhai (Exh.7). She states that she was in love with the appellant and then she was engaged to deceased Ilmuddin. The appellant wanted her to continue the relations and get married.
6.1 In her deposition, she has stated that she had gone to attend the fair along with her friend Nasim where they met Manjoor, Rahim and Ilmuddin. After talking for sometime, the trio went to the pond situate behind Jadeshwar temple. She, therefore, went for shopping of bangles along with her friend Nasim. When they reached the shop located behind the temple at about 4-30 to 5-00 PM, she came across Rahim and Manjoor and inquired from Rahim about Ilmuddin. Rahim told her that the appellant took away Ilmuddin saying that he had some work with him and informing them that they would be back within five minutes. Then they were waiting for them to come back. The witness says that all of them waited for about an hour for Ilmuddin to return. Around that time, the appellant was noticed coming back from the direction of pond. They, therefore, inquired him about Ilmuddin and were informed by the appellant that Ilmuddin went along with his friend who had come from Morbi and would be back soon. The witness says that they, therefore, waited for Ilmuddin and then started looking for him in the fair but could not locate him. The appellant also joined them in searching the deceased. She says that Ilmuddin's dead body was found on the next day from behind Jadeshwar temple and that the deceased was done to death by strangulation with the help a wire. The witness has been tested on the touchstone of cross-examination but has stuck to her version.
7. The next important witnesses are Rahimbhai Saudibhai (Exh.10) and Manjoorbhai Ibrahim Badi (Exh.18).
7.1 On occurrence, their depositions are on the same lines as that of Najma. They have also been put to cross-examination but have stuck fast to their version and nothing emerges from their cross-examination, which would help the defence.
7.2 However, certain facts which are of relevant nature also emerge from their depositions. The first being that the deceased started from his home at about 6-00 AM on the day of incident after having breakfast. Despite a close scrutiny of the evidence of these witnesses, we do not find anything to indicate that the deceased took either meal or any refreshment after he had left his house after taking breakfast and before he left with the accused.
8. If the medical evidence is seen, the deceased died of strangulation. Dr. Dineshchandra Chauhan (Exh.23) in his deposition states that the deceased was strangulated with the help of a wire and that as a result of pulling of the wire round the neck the skin was cut and there was deepening of the skin making grooves. This would mean that after tying the noose round the neck, it was pulled with force by the miscreant. Necessarily, it would have corresponding injury on the palm or fingers of the miscreant, whereas the medical evidence does not speak of any injury either on palm or on finger or any other part of the body of the accused-appellant. This shows that the possibility of the appellant being not involved in the incident cannot be ruled out.
8.1 Secondly, it is worth to note that the deceased was done to death by pulling the wire after putting it round the neck. The wire was pulled with force. The deceased was a able-bodied person. He would certainly have offered some resistance instinctively and there may be application of more force in the contrary direction. There may be an attempt on the part of the victim to escape from the noose and it would be reasonable to expect some corresponding injury on person of the accused, which is totally absent. Incidentally, there is possibility of scuffle by the deceased victim with the miscreant and there is no injury on the person of the accused. Simultaneously we find miscellaneous injuries on person of the victim reflective of scuffle. This is another situation where the possibility of non-involvement of the appellant cannot be ruled out.
8.2 If the prosecution case is accepted, the incident occurred in broad daylight somewhere around 4-00 PM on 11.8.2003. The incident occurred in proximity of a fair and in proximity of a Shiv Temple as well as a pond. With so many people around in the fair, it is difficult to comprehend that a man would choose such a time and place to strangulate the deceased and remain unnoticed. The fact is that the prosecution has not come out with any independent witness being part of the fair and having noticed the occurrence.
8.3 Similarly, the dead body was noticed on 12.8.2003 at about 18-30 hours, i.e. after about 26 hours of the occurrence. When the dead body was found, it was emitting foul smell, there were maggots in it. It is, therefore, difficult to believe that such a dead body would lie in proximity of a fair where a large number of persons were moving around.
9. As per the evidence of the prosecution witnesses, the deceased was seen leaving with the appellant around 4-00 PM on the eventful day and was thereafter not traceable for about 4 to 5 hours except that in between when the search was going on, the appellant joined the search party. After the appellant left with the deceased, he met the witnesses after about an hour and at that point of time he was alone and on being inquired by the witnesses, he informed that the victim had gone with a friend of his from Morbi. Necessarily, therefore, the time of the death was somewhere around 4-00 PM on the eventful day. Now if the medical evidence is seen, the doctor found semi-digested food in the stomach, which must have been taken by the deceased about 4 to 6 hours prior to the death, whereas there is no evidence to show that such food was taken by the deceased. On the contrary, the only evidence is that the deceased took breakfast at about 6-00 AM in the morning. The fact that semi-digested food was found from stomach would scientifically prove the time of intake of food to be some time between 10-00 AM and 12 noon, taking the time of death to be 4-00 PM. There could be some margin of error of a few minutes, but that does not reconcile the time controversy. If the death occurred in between 10-00 AM and 12 noon, the version of the eye-witnesses gets falsified. Differently put, the evidence of the eye-witnesses would be susceptible to doubt in such a situation and the possibility of false implication of the appellant cannot be ruled out.
10. Added to the above factors are certain other aspects, which also weaken the prosecution case. Firstly, that the investigating agency does not seem to have investigated the case against the appellant in the direction of the deceased having gone with his friend from Morbi. Similarly, an attempt is made to involve the appellant by proving that the appellant had purchased clutch wire from witness Samsuddin Hussainbhai (Exh.8). However, if we see the evidence we find that he gives no details but says that the appellant had purchased such wire about nine months prior to the witness deposing before the Court. In absence of any contemporaneous reliable evidence and in face of the lacunae indicated hereinabove, we are of the view that not much weightage can be given to the evidence of Samsuddin Hussainbhai (Exh.8).
11. The factor in favour of the appellant is that when he learnt about the missing of the deceased, he joined the searching party. This subsequent conduct of the appellant is relevant.
12. Taking an overall view of the matter and considering the lacunae, as discussed above, we are of the view that the appellant could not have been convicted by the trial Court. The trial Court, therefore, erred in convicting the appellant and sending him to jail.
13. The appeal, therefore, deserves to be allowed and the same is allowed. The judgment and order of conviction and sentence dated 24.1.2005 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Rajkot, at Morbi, in Sessions Case No.5 of 2004 is hereby set aside. The appellant be set at liberty forthwith, if not required in any other case. Fine paid, if any, be refunded to him.
(A.L. DAVE, J.) (BANKIM N. MEHTA, J.) zgs/-
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