Gujarat High Court
Mansukhbhai Mavabhai Parmar vs State Of ... on 22 September, 2017
Bench: R.M.Chhaya, Biren Vaishnav
R/CR.A/850/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 850 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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 or any order
made thereunder ?
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MANSUKHBHAI MAVABHAI PARMAR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR. YOGENDRA THAKORE, ADVOCATE for the Appellant(s) No. 1
MR RUTVIJ OZA, APP for the Opponent(s)/Respondent(s) No.1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 22/09/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) Page 1 of 24 HC-NIC Page 1 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT
1. Being aggrieved by the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Gondal, Camp at Upleta in Sessions Case No.76/10 dated 03.05.2011, the appellantoriginal accused has preferred this appeal under section 374 of the Code of Criminal Procedure.
2. The following facts emerge from the record of the appeal 2.1 That the appellantoriginal accused married Sadhnaben @ Sudhaben somewhere in the year 2005. The wife of the appellant Sudhaben lodged a complaint being C.R. No. I29/10 for offences under sections 323, 498A, 506(2), 302 and 201 of IPC. It was alleged against the appellant that after marriage, the appellant used to torture the complainant mentally and physically because of which she left the matrimonial house along with her son Bhavesh to her parental house at Bhayavadar. It was also further alleged by the complainant that the appellant gave threat that if any complaint is filed, he would kill her brother. The complaint further recites that before about two months, the appellant came to the house of the complainant at Bhayavadar and took away Bhavesh, her son. It is further the case of the prosecution that about 67 days of the accident, i.e., about 5 days before, on 12.07.2010, the appellant took his son Bhavesh Page 2 of 24 HC-NIC Page 2 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT aged 4 years from Bhayavadar to a place somewhere near Arani village and threw him in an abandoned well and on this premises, it was alleged that the appellant has committed the said offence. 2.2 The FIR was lodged with Bhayavadar Police Station, which was registered as C.R. No. I 29/10. The investigating officer investigated the offence and the case was thereafter committed to the learned Sessions Court, Gondal, Camp at Upleta and registered as Sessions Case No.76/10. The appellant did not plead guilty and preferred to be tried and ultimately, charge was framed at Exhibit 6. The statement of the appellantaccused was recorded as provided under section 313 of the Cr.P.C. The prosecution examined 16 panch witnesses and documentary evidence was also adduced in form of Inquest panchnama at Exhibit 9, panchnama of place of offence, Exhibit 10, Panchnama of the muddamal clothes recovered at Exhibit 13, demonstration panchnama at Exhibit 16, Arrest panchnama Exhibit 17, FIR Exhibit 21, photographs at Exhibit 23, P.M. Note at Exhibit 27, Cause of Death Certificate at Exhibit 28, Short Report at Exhibit 29, Letter of Circle Inspector, Map and Panch Rojkam at Exhibit 31, attendance register at Exhibit 36, Order of investigation at Exhibit 38, Letter for registration of accidental death at Exhibit 39, Email to FSL, Rajkot at Exhibit 40, Form of accidental death No.26/10 at Exhibit 41, Serious offence report at Exhibit 42, Report for Page 3 of 24 HC-NIC Page 3 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT investigation of death at Exhibit 43, Yadi for doing inquest at Exhibit 44, Yadi for taking DNA test sample at Exhibit 45, Yadi for P.M. of dead body at Exhibit 46, Letter for performing P.M. at Exhibit 47, Letter for performing P.M.at Exhibit 48, Letter for receipt of P.M. Note at Exhibit 49, Report of FSL of investigation of place at Exhibit 50, Outward for preparing map of the local place at Exhibit 51, Yadi to Executive Magistrate, Bhayavadar at Exhibit 52, Authority letter at Exhbiti 53, Receipt issued by FSL, Exhibit 54, Ravangi nondh of muddamal at Exhibit 55, Receipt of FSL at Exhibit 56, Letter written for getting Final Cause of Death Certificate at Exhibit 57, Letter written to FSL at Exhibit 58, Letter written to FSL at Exhibit 59, Analysis report of FSL at Exhibit 60, Analysis report of FSL at Exhbit 61, Letter of FSL at Exhibit 62, DNA report at Exhbit 63, Letter of PSI, Jamkandorna at Exhibit 64, Information of accused sent by PSI, Jamkandorna, Exhibit 65, Birth certificate of deceased Bhavesh at Exhibit 66, Serological report of FSL at Exhibit 67. The accused also filed written statements. The learned Additional Sessions Judge after considering the evidence on record, acquitted the appellant for the offences under sections 323, 498A and 506 of the IPC, however convicted the appellant for offences under sections 302 and 201 of IPC and sentenced for imprisonment for life for offence under section 302 of IPC and Page 4 of 24 HC-NIC Page 4 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT imprisonment for one year for offence under section 201 of the IPC and ordered that both the sentences would run concurrently. No fine has been imposed. Being aggrieved by the same, the present appeal is filed.
3. Heard Mr. Yogendra M. Thakore, learned advocate for the appellant and Mr. Rutviz Oza, learned APP for the State.
4. Mr. Thakore, learned counsel appearing for the appellant took this Court through the evidence on record and so also impugned judgment an order of conviction and sentence and has contended as under
1) That the learned Sessions Judge has failed to appreciate the evidence on record and has wrongly convicted the appellant under section 302 of the IPC and under section 201 of IPC.
2) Mr. Thakore contended that the prosecution has not been able to even remotely prove the motive. Mr. Thakore further contended that it is impossible for any person to kill his son without any reasons and on the contrary there is evidence on record that the son was being kept in the house of the appellant in a very cordial manner and therefore, the order of sentence and conviction deserves to be quashed.
Page 5 of 24HC-NIC Page 5 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT
3) Mr. Thakore contended that the well in question is situated at a distance of 2530 kms from the house of the appellant where the appellant stays with his mother and the boy had fallen down in the well accidentally and the appellant has been falsely implicated in the offence of murder because of ongoing dispute between the complainant and her family and the appellant whereas the appellant had already left Bhayavadar for service at Rajkot. Mr. Thakore further contended that the whole conviction is based on theory of last seen together and whole chain of circumstances is not at all complete and in such circumstances, the conviction of the appellant only on the sole ground/theory of last seen together is not permissible.
4) Relying upon the judgment of the Apex Court in the case of Anjan Kumar Sarma vs. State of Assam reported in AIR 2017 SC 2617, Mr. Thakore contended that the appellant deserves to be acquitted from all charges. It was contended that thus, no motive is there and the prosecution has not proved the motive beyond doubt. Mr. Thakore further contended that if the time and last seen together is seen, the prosecution has not proved beyond reasonable doubt as no exact Page 6 of 24 HC-NIC Page 6 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT time is proved. Mr. Thakore further contended that even if evidence of medical officer is appreciated, the same does not give any exact time of the death and except the theory of last seen together, no other evidence is there on record and therefore, sole reliance upon such weak piece of evidence is not permissible.
5) It was contended by Mr. Thakore that the conduct of the witness relied upon by the Sessions Court is unnatural and benefit of doubt should go in favour of the accused and the accused deserves to be acquitted from all charges by allowing this appeal.
5. Per contra, Mr. Oza, learned APP has submitted that though prosecution case is based on circumstantial evidence, the prosecution has been able to prove that the chain is complete and the dead body was found on 12.07.2010 and in fact the same was informed by P.W. 6 Gajubha Dadubha Chudasama. Mr. Oza also relied upon the reconstruction of the crime and deposition of P.W. 5 Ashokbhai Arjanbhai Vala, Exhibit 16 and has contended that the Sessions Court has rightly believed the case of the prosecution and has rightly convicted the appellant for offences under sections 302 and 201 of IPC. The learned APP has also relied upon Exhibit 31, map prepared by the revenue officer and has contended that Page 7 of 24 HC-NIC Page 7 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT considering the other piece of evidence, the same corroborates with the other evidence and more particularly the evidence of P.W. 9, Nanjibhai Jivabhai Makwana, Exhibit 24 who has seen appellant with his son passing nearby the scene of offence. It was therefore contended that the appeal is meritless and the same deserves to be dismissed.
6. Upon perusal of the Record & Proceedings and upon considering the submissions made, it clearly appears that the case of the prosecution is based on circumstantial evidence. At the first instance, it would be appropriate to refer to the deposition of P.W. 6, Gajubha Dadubha Chudasama, Exhibit 18. The said witness has deposed that the incident happened during monsoon season and he stated on oath that he is an agriculturist and his agricultural land is situated at Arani village in the sim of Bhayavadar and its survey number is 476. He has also stated that there is an old well in the said agricultural field and the same is not registered in the revenue record. He has further stated that while the bullocks were grazing, when he peeped into the well, he found that the dead body of the child was floating. He also stated on oath that the said well is 3035 feet deep. He has further averred that after seeing the dead body, he informed the police station and thereafter police personnel came and took out the dead body from the well.
Page 8 of 24HC-NIC Page 8 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT He further averred that the dead body was of a boy aged about 45 years. He also categorically stated in his examinationinchief that he was not aware who the boy was. He has also stated that he did not know that the family members of the boy belonged to Bhayavadar. He has stated that he stays at village Sevantra. Even in his crossexamination, he has not stated anything further.
7. The complainant, P.W.7, was examined at Exhibit
20. In her examinationinchief, she has narrated what is found in the first information report. She has further averred in her examinationinchief that after her husband, i.e., appellantaccused left for Chavandi, she stayed alone with her mother and brother and had also talked about quarrel with the appellant husband. She has further stated that about 15 days after the appellant took her son Bhavesh, she inquired from one of his family member Karabhai Budhabhai as to how is her son and she was told that her son stays with her husband appellant herein and her motherinlaw and both are happy. She has further averred that after 2 3 days, she came to know that a dead body of a child was found in an abandoned well near village Arani and had also heard that the age of the boy was 67 years. She has further averred that as the age of her son was 4 years, no doubt was created. She further says in her deposition that Page 9 of 24 HC-NIC Page 9 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT after 34 days, she called Karabhai on phone and inquired about her son and she was informed by Karabhai that her son is not seen since about 10 days and her husband Mansukhappellant herein is also not seen in Chavandi since 34 days and that it is heard that he has gone to Rajkot. She has further averred that thereafter, she talked about it with other members of the society who informed that they should go to the police station and inquire and the clothes and photographs of the boy would be there and therefore, she along with her mother and brother went to Bhayavadar Police Station. It is further averred that on seeing the photographs and the shirt, she identified the photo and the clothes of her son. She has further stated that thereafter one Nanjibhai Parmar told her that he had seen her husband and the boy together near the turn of Arani road. She has further stated that she was informed that he had seen them before the dead body was found. She has further stated that thereafter, she informed the police that her husband has killed her son and filed a complaint. In her cross examination, she has stated that she does not know the exact date on which the incident has happened. She has also stated in her cross examination that during the time when she and the appellant were together, they used to keep their son properly. She has also admitted in her crossexamination that she has not made any complaint against her husband about consuming Page 10 of 24 HC-NIC Page 10 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT liquor and she was frequently beaten by him. She has further denied the suggestion of the defence that her son Bhavesh accidentally fell into the well and she has also denied the suggestion of the defence that the appellant has not killed her son. She has also denied the suggestion put to her by the defence that on the date of the incident her son was going from Chavandi to Bhayavadar and accidentally fell into the well. She has also denied the suggestion that as there is dispute with her husband, she is giving false deposition.
8. Similarly, the prosecution has also examined P.W. 8, Ashokbhai Bhanjibhai Rathod, Exhibit 22. He has almost narrated the same thing which is narrated by P.W.7 in his crossexamination. In his crossexamination, he has stated that the house of his sister and brotherinlaw is about 8 streets away and has also admitted that he has no idea about the quarrel between the appellant and his sister. He has further stated in his cross examination that she used to come to parental house along with Bhavesh. He has also stated that as there was quarrel between his sister and brotherinlaw, i.e., appellant, and thereafter he went to village Chavandi. He has denied the suggestion of the defence that as there is dispute with the appellant with his brotherin law, even though Bhavesh has accidentally fell into the well and has died, in order to falsely Page 11 of 24 HC-NIC Page 11 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT implicate the appellant, he has given false deposition. He has further admitted in his crossexamination that he has not seen the appellant throwing Bhavesh into the well. However, he admits that he came to know the said incident from others, i.e., hearsay.
9. The prosecution has also examined P.W. 9, Nanjibhai Jivabhai Makwana, Exhibit 24. The said witness has stated in his crossexamination that he stays at Bhayavadar village in Holidhar area. He has stated that he stays about 34 streets away from the appellant's house. He has further stated that the name of his wife is Savitaben and that his daughter is married at village Jamtimbdi. He further states that he knows the appellant because he stays in the neighbourhood. He has further stated that he had gone to Timbdi at his daughter's place from there to village Arani. He has further averred that he and his wife had come on the motorcycle and as it was raining, they stopped at Arani for some time. He has further averred that while coming to Bhayavadar, substation of GEB is situated and their he saw appellant with his son Bhavesh. He has further stated that he saw both of them walking and that the appellant blinked when he saw the said witness as well as his wife. He has further stated that thereafter they came to Bhayavadar. He has further averred that thereafter, after few days, he heard that the Page 12 of 24 HC-NIC Page 12 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT appellant had thrown the deceased into the well and killed him. In his crossexamination, he has stated that distance from Jamtimbdi to Bhayavadar is 17 kms. He has also stated that in order to cover the said distance on motorcycle, time of half an hour would be consumed. He has further stated that he left the house of his daughter at about 5.00 O'clock in the evening for coming to Bhayavadar. He further stated that distance from Timbdi to GEB substation is 16 kms. He has further stated that for coming from Jamtimbdi to GEB substation would consume about 20 minutes. He has further stated that because of rain he stopped at village Arani for about half an hour. He has further admitted in his crossexamination that the complainant and her family members belong to his caste. He has also admitted that they are their relatives. He has further denied the fact that because of rain, there was not movement on the road. He has also denied that when he came, at that moment, he had seen no one. He has admitted in his crossexamination that he has not seen the appellant throwing deceased Bhavesh into the well. He has stated further that however as they met him on the road, because of the same, on presumption that the appellant has killed Bhavesh by throwing him into the well, such deposition is made on presumption.
10. The prosecution has examined P.W.10 Dr. Shailesh Dhanjibhai Bhuva at Exhibit 26. The said Doctor Page 13 of 24 HC-NIC Page 13 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT had performed postmortem of the dead body of the deceased. From the examinationinchief, it appears that the said witness has narrated the condition of the dead body. He has specifically stated in his examination that no injuries were found and no fracture was found and there was no external injuries. He has also opined that the time of death of the dead body may be between 5 to 15 days before the date of postmortem. In his examination he has stated that the cause of death is drowning. In his crossexamination, he has specifically stated that the body parts are vanished may be because of the aqua animals. The prosecution has also examined Circle Inspector Govindbhai Lakhmanbhai Bariya, P.W.11 at Exhibit
30. He has prepared the map and has accepted the fact that the map was prepared by visiting the scene of offence. Nothing is found from the deposition of the said witness. Similarly, the prosecution has also examined Jemabhai Ukabhai Samaliya, P.W. 12 at Exhibit 32. The said witness has stated in his crossexamination that he pulled the dead body from the well. He has stated that he knows how to swim and pulls up the dead body from the well. The prosecution has further examined Mansukbhai Ugabhai Parmar, P.W. 13, Exhibit 33. The said witness has stated that he stays at village Chavandi and that the appellant was also staying at village Chavandi and he knows him. The said witness has also stated that he knows Parshottam Bhanabhai Patel Page 14 of 24 HC-NIC Page 14 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT and he keeps partnership in the agricultural operations. He has stated that on 06.07.2010, while he was going to his agricultural field, he met Sureshbhai on motorcycle who had informed him that he wants to go to Arani. He has further stated that he got down near his field. At that time he saw appellant and his son. He has stated that the police informed him that the appellant has killed his son. He has admitted in his crossexamination that he is not aware as to where the appellant and his son were going. He has also admitted that he does not have any personal information about the incident, however, he came to know about the same as the police informed him. The prosecution has also examined Sureshbhai Tejabhai Akbari, P.W.14, Exhibit 34. The said witness has stated in his crossexamination that he stays at Chavandi village and he knows the appellant as he stays at village Chavandi. He has further stated that on 06.07.2010 while he was going on his motorcycle from Chavandi to Arani, he met Mansukh Ugabhai Parmar, p.w.13 and gave him lift till his agricultural field and at that moment he saw appellant and his son going towards Arani village and as he asked for lift on his motorcycle, he dropped the appellant and his son at the bus station of Arani and after staying at the house of his sister, he came back to village Chavandi. He has further stated that the police came afterwards and informed him that the accused Page 15 of 24 HC-NIC Page 15 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT Mansukhbhai has thrown his son into the well and in his crossexamination, he has stated that Chavandi is a small village and the deceased boy was staying at the village Chavandi. He has admitted the fact that after dropping the accused at village Arani, he was not aware where he wanted to go. He has also stated in the cross examination that after he dropped the appellant and his son at village Arani, he is not aware where they had gone. He has admitted the fact that he does not have any personal information about the incident. The prosecution has also examined Sagarbhai Bharatbhai Kalariya, P.W. 15 at Exhibit 35. The said witness has stated that the appellant had approached him on 08.07.2010 for some work as a daily wager and he filled in the form as provided under the Rules and that the appellant worked in his factory at Rajkot in the carting department as helper from 08.07.2010 to 21.07.2010. He has also stated that he came to know about the incident when he read in the daily newspaper. He has also produced on record at Exhibit 36, the attendance register. In his crossexamination, he has stated that before offering the job to the appellant, he had inquired about his name, address and his experience. He has also admitted that from the appearance, the appellant Mansukhbhai appeared to be a good person and therefore, he had kept him in service. He has also admitted the fact that for whatever days appellant worked with him, he Page 16 of 24 HC-NIC Page 16 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT worked in satisfactory manner. He has also admitted that he knows appellant because he was working in his factory. The prosecution has also examined P.W. 16 Shashikant Amrutlal Joshi at Exhibit 37. In his examinationinchief, he has narrated the manner in which the investigation has taken place on the complaint filed by the original complainant. He has also stated that it has not come on record that the appellant gave any complaint about his missing son. In cross examination, he has admitted the fact that during the investigation it revealed that there was dispute between the appellant and his wife and the complainant was staying at her parental house. He has denied the suggestion that only on presumption the complainant has filed the complaint. He has stated that he can state the date on which the incident took place, however, he cannot exactly say time when it has happened. He has also stated in his crossexamination bus station of Arani village is at a distance of 3 to 4 kms from the scene of offence. He has also admitted that on the eastern side of the road, Gangeshwar Mahadev Temple is situated. He has denied the fact that the deceased child died because of the accident by falling into the well. He has admitted the fact that he has not taken any statements of the persons staying in neighborhood of the deceased child. He has denied the suggestion of the defence that even though it is an accident, a false complaint is Page 17 of 24 HC-NIC Page 17 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT lodged. He has admitted in his crossexamination that during investigation, there is no eye witness who has seen the appellant throwing the deceased into the well. In addition to that, the prosecution has also examined P.W. 1 Ranubha Lakhubha Chudasama, P.W. 2 Arvindbhai Lakhmanbhai Vagh, P.W. 3 Hareshbhai Gandubhai Moradiya, P.W.4 Hasmukhbhai Nathubhai Parmar and P.W.5 Ashokbhai Arjanbhai Vala, the panch witnesses. However, looking at the deposition, except the fact that same relates to the respective stages of investigation, nothing turns out of that evidence. Over and above this, the prosecution has also relied upon the serological report, Postmortem note and inquest panchnama.
11. Upon considering the submissions made and the evidence as discussed hereinabove, it is an admitted position that the whole case against the appellant is based on circumstantial evidence and on the theory of last seen together. P.W. 16 Shashikant Amrutlal Joshi, the investigating officer, Exhibit 37 has clearly admitted in his crossexamination that no eyewitness was found. It also deserves to be noted that though charge was framed under sections 323, 498A, 506 of IPC, the Sessions Court itself has come to the conclusion that the prosecution has not been able to prove the same and therefore, the aspect which is under consideration by this Court in this appeal is in relation to offence under sections 302 and 201 of IPC. The record clearly Page 18 of 24 HC-NIC Page 18 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT establishes that the appellant brought his son from Bhayavadar to his village Chavandi and was staying with his father. Even in the deposition of the complainant, P.W. 7, it has come on record that when inquiries were made about her son through a near relative, the complainant was informed that the boy is hale and hearty. Similar version comes from the evidence of P.W. 8, brother of the complainant Ashokbhai Bhanjibhai Rathod. The whole case of the prosecution is therefore based on the theory of last seen together based upon the oral deposition of P.W. 9, P.W. 13 and P.W. 14. In the deposition of P.W. 9, there is no exact date whereas it is pertinent to note that in the deposition of P.W. 13 and P.W. 14, it would be evident that both the prosecution witnesses have stated the date 06.07.2010. However, none of the witnesses have stated that they have any personal information about the appellant throwing his son into the well. All the three witnesses have not been able to bring home as to whether the appellant was proceeding with his son towards the well. There is no other evidence as rightly pointed out by the learned counsel for the appellant to even remotely show much less prove that any motive to kill his son was present. On the contrary, as observed hereinabove, the appellant is found to be keeping his son in a pleasant manner at his residence. Even if the deposition of all the three prosecution witnesses Page 19 of 24 HC-NIC Page 19 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT viz., P.W. 9, 13 and 14 are looked at as a whole and if it is compared with the deposition of P.W. 11 Govindbhai Lakhmanbhai Baraiya, Exhibit 30 and the map which is heavily relied upon by the learned Assistant Public Prosecutor at Exhibit 31, the same does not in fact match with the version of the witness. On reappreciation of this piece of evidence and comparing it with the scene of offence from the panchnama of the scene of offence at Exhibit 10, the same are poles apart and the prosecution has not been able to complete the chain of circumstances which may lead to a finding that as per the chain of evidence and coupled with the theory of last seen together, the appellant is guilty. The learned Sessions Judge has though recorded that there is no eyewitness to the incident, the chain should be complete, however, has failed to consider the evidence and has wrongly come to the conclusion that the same leads to circumstances which proves the guilt of the appellant. The learned Sessions Judge has also therefore wrongly come to the conclusion on wrong appreciation of evidence more particularly of the Circle Inspector at Exhibit 30, map at Exhibit 31 as well as oral deposition of Nanjibhai Jivabhai Makwana at Exhibit 24 and Exhibits 33 and 34 and has wrongly come to the conclusion that the incident has taken place on 06.07.2010. As observed hereinabove, in the first statement made by Nanjibhai, P.W. 9, at Exhibit 24, there is no mention about the date Page 20 of 24 HC-NIC Page 20 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT and that improvement is made by P.W.13 and P.W. 14, Exhibits 33 and 34. Even if the date 06.07.2010 is taken from the deposition of P.W. 13 and P.W. 14, the evidence of Doctor examined independently and upon reappreciation of it clearly mentions that death has occurred because of drowning, which cannot be corelated to 06.07.2010, merely on the deposition of the Doctor that the incident took place between 515 days. Even otherwise, as decided by the Apex Court in the case of Anjan Kumar Sarma (supra), the Hon'ble Apex Court has observed thus "21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under: "34. From the principle laid down by this Page 21 of 24 HC-NIC Page 21 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or Page 22 of 24 HC-NIC Page 22 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case." As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case."
12. Therefore, the conviction cannot be based solely on the theory of last seen together and none of the facets of chain of circumstances which are unfolded by prosecution witness does not lead to complete the chain of circumstances, which creates doubt about the involvement of the appellant and benefit of such doubt would therefore go in favour of the appellant. Even upon reappreciation of the evidence of P.W. 16 Exhibit 37, the investigating officer, the same cannot be used as a link to show that the chain is complete.
13. In the case on hand also, the circumstances relied upon by the prosecution are not proved along with theory of last seen together and therefore, the appellant is entitled to benefit Page 23 of 24 HC-NIC Page 23 of 24 Created On Fri Sep 22 23:26:15 IST 2017 R/CR.A/850/2013 CAV JUDGMENT of doubt as the chain of circumstances does not lead to the guilt against the accused and the same is not complete.
14. Consequently, the appeal is allowed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Gondal, Camp at Upleta in Sessions Case No.76/10 dated 03.05.2011 is hereby quashed and set aside and the appellant is directed to be set at liberty forthwith if not required in any other case.
(R.M.CHHAYA, J.) (BIREN VAISHNAV, J.) bjoy Page 24 of 24 HC-NIC Page 24 of 24 Created On Fri Sep 22 23:26:15 IST 2017