Gujarat High Court
Ajitbhai Sureshbhai Gamit vs State Of Gujarat. . ... on 15 July, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/973/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 973 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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AJITBHAI SURESHBHAI GAMIT. . Appellant(s)
Versus
STATE OF GUJARAT. . Opponent(s)/Respondent(s)
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Appearance:
MR GAJENDRA P BAGHEL, ADVOCATE for the Appellant(s) No. 1
MR J P BAGHEL, ADVOCATE for the Appellant(s) No. 1
THROUGH JAIL for the Appellant(s) No. 1
MS. CHETNA SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :15/07/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Page 1 of 27 R/CR.A/973/2009 CAV JUDGMENT
1. This appeal is at the instance of a convict accused of the offence punishable under Sections 302 of the Indian Penal Code and is directed against an order of conviction and sentence dated 4th May, 2009 passed by the learned 4 th Additional Sessions Judge, Vyara in Sessions Case No.61 of 2008.
2. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Sections 302 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment and a fine of Rs.500/-. In default of payment of fine, the appellant was directed to undergo further Simple Imprisonment for 15 days.
3. Case of the Prosecution :
3.1 The accused was serving as a driver and was plying a Truck No.GJ-5UU-4949 of the ownership of one Jitubhai Ukaji Gamit. The deceased, namely, Jagdish Ishwar Gamit, a resident of Vaniya Faliya, situated at village Balpur was working as a Cleaner on the said truck. It is the case of the prosecution that on 20th May, 2008 the accused intentionally crushed the deceased beneath the wheel of his truck No.GJ-
5UU-4949 thereby causing his death.
3.2 On 20th May,2008 the brother of the deceased, namely, Ashok Ishwar Gamit lodged a First Information Report Exh.13 inter alia stating that the deceased happened to be his younger brother and was unmarried. It has been stated that they were residing together with their father Ishwarbhai at the time of the incident. It has been further stated that his brother Page 2 of 27 R/CR.A/973/2009 CAV JUDGMENT Jagdish used to do the work of cleaning the truck which was being driven by the accused. The accused also resided in the same village. It has been further stated that on the date of the lodging of the F.I.R, the brother-in-law of the first informant, namely, Sanjay Soma Gamit, a resident of Nishal Faliya, situated at Chorwad, came at 9.00 A.M and informed him that he had learnt through his friend Shaileshbhai, a resident of Balpur, that the dead body of Jagdish was lying in a naked condition on the road in Vaniya Faliya of village Balpur. On receipt of such information from his brother-in-law Sanjay, the first informant along with few other persons of the village immediately reached at village Balpur and found the deceased lying in a naked condition containing a wheel mark of a vehicle on his waist and the private part. It has been stated in the F.I.R that he learnt upon inquiry that on the previous day the accused had come to Balpur along with the deceased in his truck. In the early morning the accused left the village in his truck on the pretext that he had to load the road metal. It has been further stated that the first informant suspected the complicity of the accused so far as the death of his brother was concerned. The first informant alleged that during the night hours for some reason his brother might have been run over by the truck driven by the accused.
4. On the complaint Exh.13 being lodged by the brother of the deceased, the investigation had commenced. The inquest panchnama of the dead body Exh.21 was drawn in presence of the panch witnesses. The scene of offence panchnama Exh.28 was drawn in presence of the panch witnesses. The dead body was sent for postmortem and the postmortem report Exh.11 noted that the cause of death was due to C/R Page 3 of 27 R/CR.A/973/2009 CAV JUDGMENT failure caused by multiple hemorrhage. The clothes worn by the deceased were collected by drawing a panchnama Exh.17. The truck was seized by drawing a panchnama Exh.19. The accused was arrested and his arrest panchnama Exh.18 was drawn in presence of the panch witnesses. The discovery panchnama under Section 27 of the Evidence Act at the instance of the accused of the exact place of occurrence Exh.29 was drawn in presence of the panch witnesses. The Forensic Science Laboratory Report Exh.33 was collected by the Investigating Officer.
5. On conclusion of the investigation a charge-sheet was filed in the Court of Judicial Magistrate, First Class, Vyara.
6. As the case was exclusively triable by the Sessions Court, the J.M.F.C, Vyara, committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code. The Sessions Court framed charge against the accused Exh.5 and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
7. The prosecution adduced the following oral evidence in support of its case:
P.W.1 Dr.Dharmendrakumar Baldevbhai Shah Exh. 9 P.W.2 Ashokbhai Ishwarbhai Gamit Exh.12 P.W.3 Jitubhai Ukajibhai Gamit Exh.14 P.W.4 Bhupendrabhai Narasinhbhai Gamit Exh.15 P.W.5 Ishwarbhai Posaliyabhai Gamit Exh.16 P.W.6 Ramanbhai Devajibhai Gamit Exh.20 P.W.7 Arunaben Bhupendrabhai Gamit Exh.22 Page 4 of 27 R/CR.A/973/2009 CAV JUDGMENT P.W.8 Gimaliben Narasinhbhai Gamit Exh.23 P.W.9 Sulaben Govanabhai Gamit Exh.24 P.W.10 Ishwarbhai Naginbhai Gamit Exh.25 P.W.11 Sanjaybhai Somabhai Gamit Exh.26 P.W.12 Bhagubhai Posaliyabhai Gamit Exh.27 P.W.13 Arvindbhai Naginbhai Gamit. Exh.30 P.W.14 Lavganbhai Ukadiyabhai Vasava Exh.31 P.W.15 Rajubhai Gadabhai Desai Exh.34 P.W.16 Higoldas Susagbhai Ratnu Exh.36
8. The following pieces of documentary evidences were adduced by the prosecution.
1) P. M. Note. Exh.11 2) Complaint Exh.13 3) Panchnama of the clothes on the dead body Exh.17 4) Arrest panchnama of the accused Exh.18 5) Panchnama regarding seizure of truck Exh.19 6) Inquest panchnama Exh.21 7) Panchnama of the scene of offence. Exh.28 8) Discovery panchnama. Exh.29 9) Index. Exh.32 10) Report of FSL for observation at the spot. Exh.33 11) Cause of Death certificate. Exh.35
9. After completion of the oral as well as the documentary evidence of the prosecution, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded, in which the accused stated that the complaint was a false one and he was innocent. The defence of the accused was that only on suspicion he had been arraigned as an Page 5 of 27 R/CR.A/973/2009 CAV JUDGMENT accused in the crime.
10. At the conclusion of the trial, the learned trial Judge convicted the accused of the offence punishable under Sections 302 of the Indian Penal Code and sentenced him as stated herein before.
11. Being dissatisfied, the accused appellant has come-up with this Appeal.
12. Submissions on behalf of the accused appellant:
A) Mr. Gajendra Baghal, the learned counsel appearing on behalf of the accused-appellant, vehemently submitted that the trial court committed a serious error in finding the accused guilty of the offence of murder. Mr. Baghal submitted that none of the circumstances relied upon by the trial Court could be termed as incriminating circumstances pointing only towards the guilt of the accused. Mr.Baghal submitted that the trial Court committed a serious error in relying on the extrajudicial confession made by the accused before the P.W.9 Shulaben with whom the accused had live-in relationship.
Mr.Baghal submitted that the P.W.9 Shulaben has been declared as a hostile witness and therefore, the trial Court ought not to have placed reliance on her evidence.
In such circumstances referred to above Mr.Baghal prays that there being merit in the appeal the same may be allowed and the order of conviction and sentence be set aside.
Page 6 of 27 R/CR.A/973/2009 CAV JUDGMENT13. Submissions on behalf of the State :
A) Ms. Chetna Shah, the learned A.P.P. appearing on behalf of the State, has vehemently opposed this appeal and submitted that the trial court committed no error in finding the accused guilty of the offence of murder. Ms. Shah submits that the circumstances emerging from the materials on record points only towards the guilt of the accused. Ms. Shah further submitted that the deceased was last seen in the company of the accused and, therefore, the accused should have explained in his further statement recorded under Section313 of the Code of Criminal Procedure as to what had happened to the deceased. Ms. Shah further submitted that the medical evidence on record also suggests that the deceased was run over by a vehicle which fortifies the case of the prosecution that it was the accused who had intentionally crushed the deceased beneath his truck.
In such circumstances referred to above, Ms. Shah prays that there being no merit in this Appeal, the same deserves to be dismissed.
14. Oral Evidence on record :
A) The P.W.1 Dr. Dharmendrakumar Baldevbhai Shah in his evidence Exh.9 has deposed that past one year he was working as an additional Medical Officer at Balpur, Ta: Vyara.
On 20th May, 2008 the police had come at the hospital with a Yadi in connection with C.R.No.I-53/2008 registered at Vyara Police Station for the postmortem of the dead body of one Page 7 of 27 R/CR.A/973/2009 CAV JUDGMENT Jagdishbhai Ishwarbhai Gamit. The P.W.1 has deposed that the postmortem examination revealed the following injuries as noted in Column No.17 of the Postmortem Report -Exh.11.
1) Red colour abrasion between the both thighs (multiple)
2) Bluish colour abrasion over right thigh, 12 cm x 10cm in areas directed downward inside.
3) Laceration c. exposing of left testicle from the left scrotum.
He has also deposed that there was a fracture of the Right femur bone. He has deposed that there were no injuries on the head. All other organs like heart, lungs were found to be normal. The mouth was found open and the tongue was inside the mouth. The food pipe was found to be congested. The P.W.1 has deposed that there was an injury on his private part. He has deposed that the cause of death was due to cardio-respiratory failure on account of profuse bleeding. He has also deposed that the injuries mentioned in column nos.17, 18 and 15 can be caused, if lot of pressure is exerted. He has also deposed that if any person is run over by a four wheeler heavy vehicle, then such injuries can be caused. The injuries were sufficient in the ordinary course of nature to cause death. In his cross-examination the P.W.1 has deposed that he had not seen any wheel marks at the place of the injury. He has deposed that it was not necessary that if any four wheeler runs over the body of a person, then the wheel marks must be found on the body.
B) The P.W.2 Ashokbhai Gamit is the brother of the Page 8 of 27 R/CR.A/973/2009 CAV JUDGMENT deceased and the original complainant. In his evidence Exh.12 he has deposed that the deceased used to work as a Cleaner on the truck which was being driven by the accused. The owner of the truck resided at Surat. He has deposed that initially the truck was being driven by one Jitubhai. The deceased had worked as a cleaner with Jitubhai also. He has deposed that on the date of the incident Jitubhai had asked the accused to drive the truck. They all were to go to Surat from Songadh for unloading the truck. However, the P.W.2 thereafter deposed that they had left for Songadh from Surat. As metal was not available at the Songadh Quarry Works they left for village Balpur. The P.W.2 has further deposed that the accused had run away with one Shilaben, a resident of his village to Balpur. According to the P.W.2 his brother was also taken to Balpur. The P.W.2 has deposed that from Balpur he was called up by Shaileshbhai inquiring whether his brother was at home or not. The P.W.2 had informed Shaileshbhai that his brother was at work on the truck. Shaileshbhai thereafter informed the P.W.2 that his brother's dead body was lying on a road at village Balpur. The P.W.2 has deposed that thereafter he himself, along with few other persons on reaching the village Balpur found the dead body of his brother lying on a road next to the village highway. The dead body was in a naked condition. He has deposed that there were black spots on the right hand side of the body. The skin of his private part had got torn. The accused was not present at the place where the dead body was lying. The P.W.2 has deposed that his brother was run over by a vehicle. He has further deposed that the clothes of his brother were recovered from the truck and therefore, he had doubts that it could be only the accused responsible for the death of his brother. In his cross-
Page 9 of 27 R/CR.A/973/2009 CAV JUDGMENTexamination he has deposed that in his complaint he had not stated that the accused had ran away with a lady by name Shulaben residing at Balpur. He has deposed that he had no idea as to on which date, time and place they had stayed together. He has deposed in his cross-examination that he had lodged the complaint on the say of the other persons. He has also deposed that the recovery of the clothes of his brother from the truck of the accused was not done in his presence and the panchnama drawn by the police regarding the recovery of the clothes from the truck was also not done in his presence. He has deposed that it was his assumption that any other vehicle also might have run over his brother.
C) The P.W.3 Jitubhai Gami in his evidence Exh.14 has deposed that he was working as a driver at Surat Hazira. At that time he was driving the vehicle of one Dhirubhai bearing Regn. No. .GJ-5U-9949. Dhirubhai used to run a company by the named "Jay Sigotar Transport". Before joining Jay Sigotar Transport, the P.W.3 was working with Sandeep Transport. The P.W.3 has deposed that he knew the accused as he is a resident of the same village. At the time of incident, the P.W.3 was working with Dhirubhai on his truck. He has deposed that he knew the deceased as the deceased was residing in the same village and was working as a cleaner. He has deposed that on 18th or 19th as he was unable to recollect the month, they had gone from Surat to Songadh to load metal. He has deposed that at that time the deceased was there along with him as a helper. They had left Surat at around 4.30 and had reached Songadh at 8 O'clock. They had stopped at tea stall situated near Sagar quarry. When the P.W.3 was at Songadh, he received a phone-call from the accused. The accused Page 10 of 27 R/CR.A/973/2009 CAV JUDGMENT informed the P.W.3 that he was at Vyara and the P.W.3 in turn informed the accused that he was at the quarry. The accused was called by the P.W.3 at the quarry and after some time, the accused reached at the quarry. Thereafter all three of them i.e. P.W.3, the accused and the deceased ate chicken. Thereafter, the P.W.3, along with one another driver went to inquire whether there was any metal available at the other quarry works. At that time, the deceased and the accused were together near the truck of the P.W.3. The P.W.3 has deposed that thereafter the accused brought his truck No.GJ- 5UU-4949 and left the place along with the deceased. The P.W.3 inquired with the owner of the tea-stall as to whether those people had left and in reply the P.W.3 was informed that they had left for Vyara. The P.W.3 has deposed that he learnt that the deceased had gone along with the accused in the truck through the tea-stall owner. Thereafter the P.W.3 went away in his truck to his village Chorwad. At Chorwad the P.W.3 met his friends, namely, Kirit, Kiran and few others on a road. After some time the accused and the deceased also came at the place where the P.W.3 was standing along with his friends. On inquiring with them, they replied that they had gone to Dosawada. The P.W.3, thereafter, asked the accused to go to sleep as it was too late in the night. At that time, the accused informed the P.W.3 that he had run away with a girl, and if the villagers would come to know about the same, he would be beaten. The P.W.3 has further deposed that he was told by the accused that he would go to sleep at the quarry. The accused and the deceased both left the place, and the P.W.3, thereafter, proceeded to his house and went to sleep. On the next day, the P.W.3 reached at the Swami Quarry, where the accused was present. At that time, the P.W.3, inquired with Page 11 of 27 R/CR.A/973/2009 CAV JUDGMENT the accused as to where was the cleaner of the truck. The P.W.3 was informed by the accused that the deceased had got down at Chorwad. Thereafter, on the bicycle of one Narehbhai, the P.W.3 went in search of the deceased in village Chorwad. On his way, the P.W.3 met Sanjay, and Sanjay informed the P.W.3 that Jagdish had been killed at Balpur. The P.W.3 has deposed that thereafter, everyone reached at Balpur and found the dead body of Jagdish lying in a naked condition on a road. The P.W.3 has deposed that he had not seen the truck of the accused at village Balpur. He has also deposed that the clothes of the deceased were recovered from the truck of the accused. He had no idea as to why Jagdish was killed and who could have killed Jagdish. In his cross-examination, he has deposed that he himself, the accused, and the deceased resided in the same village. There was no enmity between the accused and the deceased. He has also deposed that having regard to the nature of the work, if the place of residence of the driver or the cleaner is situated on the way before the destination, then during the night hours, they would get down at their village, and on the next day, the person who had got down on the previous day would thereafter reach at the place where the truck would be parked. He has deposed that the accused and the deceased had gone to Chorwad and thereafter, he had retired to his house. He has also deposed that after Jagdish left, he had no idea regarding any development which might have taken place thereafter.
D) The P.W.4 Bhupendrabhai Narsinhbhai Gamit, in his evidence Exh.15, has deposed that at the time of the incident he was working at the J.M. Shah Tar Plant. He has deposed that as the accused was a driver and a resident of Chorwad Page 12 of 27 R/CR.A/973/2009 CAV JUDGMENT knew the accused. He has deposed that he was not knowing Sulaben. At the time of the incident the accused was residing at the house of the P.W.4. He had a lady with him who was a resident of Chorwad. The P.W.4 resided with his wife and parents. When the accused along with Sulaben came to his house to stay, at that time, the P.W.4's wife and his parents were present. The accused and Sula resided at the house of the P.W.4 for 8 to 10 days. The accused had brought Sulaben to stay at the house of the P.W.4, but for what reason, was not known to the P.W.4. He has deposed that before 7 to 8 months, he went to his house in his truck. After parking the truck near his house, he went to sleep. The accused arrived at the house of the P.W.4 at around 1.00 to 1.30 in the night with his truck. He had no idea about the registration number of the truck of the accused. He has deposed that at that time, the accused came and went to sleep at his house. Sulaben was also sleeping on the otta of the house. The accused had come all alone at his house. On the next day in the morning at 7 O'clock, Ajit left the house of the P.W.4 along with his truck. The P.W.4 also left for Olpad in his truck. After deposing to the aforesaid extent, the P.W.4 was declared as a hostile witness. In his cross-examination on behalf of the accused he denied the suggestion given to him that on the date of the incident in the night hours the accused had not come at his house. He also denied the suggestion given to him that in the night when he reached the house, he had seen the deceased. He has deposed that he was not at good terms with the deceased. He denied the suggestion given to him that the deceased had in fact being run over by him beneath his own truck.
Page 13 of 27 R/CR.A/973/2009 CAV JUDGMENTE) The P.W.5 Ishwarbhai Gamit is one of the panch witnesses. However, in his evidence Exh.16 he failed to support the case of the prosecution and was declared as a hostile witness.
F) The P.W.6 Ramanbhai Bharthi is also one of the panch witnesses. In his evidence Exh.20 he failed to support the case of the prosecution and was declared a hostile witness.
G) The P.W.7 Arunaben is the wife of the P.W.4 Bhupendrabhai. In her evidence Exh.22, she has deposed that the accused had once visited her house. The accused had come at her house along with her husband. She has deposed that none of the persons known to the accused had ever visited her house. She had no idea whether the accused was a married man or not and that his wife's name was Sula. She has deposed that they had stayed together for about 15 days before the date of the incident. Her husband Bhupendra used to stay at Bardoli. During those period of 15 days of the stay of the accused and Sula, her husband Bhupendra had not come at home. She had no idea as to what had happened on the date of the incident. She has deposed that the accused and Sula had come at her house. Thereafter on the next day the accused had gone in a bus, whereas Sula had stayed back at her house. In the evening the accused came at her house along with a truck. The accused had stayed back at her house for half an hour and thereafter once again left saying that he would return on Sunday.
H) The P.W.8 Khimliben Gamit is the mother of the P.W.4 Page 14 of 27 R/CR.A/973/2009 CAV JUDGMENT Bhupendrabhai Gamit. The P.W.8 in her evidence Exh.23 has deposed that his son Bhupendra is married to the P.W.7 Aruna and both together were residing next to her house having their own kitchen. She has deposed that her son Bhupendra is a truck driver. Bhupendra was driving a truck of his friend Raisinh. She has further deposed that none of the friends of Bhupendra used to visit his house. She has also deposed that she knew Sulaben i.e. the women with whom the accused had relations. The accused was Bhupendra's friend and the accused had live-in-relations with a lady named Sulaben. She has deposed that the accused and Sula had come at the place of their residence. They both stayed together at the house of the P.W.8 for a period of about 10 to 15 days. The P.W.8 has no idea as to why they had come and stayed at her house. She has deposed that her daughter-in-law Aruna had not disclosed anything regarding the reason for the accused and Sula to stay at the house of the P.W.8. She has no idea what type of work the accused was doing. She has no idea regarding the incident. She had gone near the house of Kastur to see the dead body lying over there. She had learnt about a dead body through people who were engaged in the business of milk. She has further deposed that her son Bhupendra used to go to Bardoli for work. Bhupendra had returned home in the evening with his truck. She has no idea as to when the incident had occurred. She has no idea as to at what time Bhupendra returned home in his truck. Bhupendra went to sleep after having food. When she herself and Sula were sleeping outside, at that time the accused Ajit came in his truck. She could hear the noise of the truck. She has no idea as to at what time the accused had come home in the night hours. The accused went the sleep thereafter. She has deposed that on the next day at Page 15 of 27 R/CR.A/973/2009 CAV JUDGMENT 7 O'clock in the morning the accused went away along with his truck. In her cross-examination she has deposed that her son Bhupendra used to come back home once in a fortnight from his work. On the date of the incident her son Bhpendra had come in the night hours along with his truck. She had seen the truck of Bhupendra on that particular day. In the morning after she woke-up she had seen Bhupendra's truck parked near the house. There was no other tuck near her house.
I) The P.W.9 Sulaben Gamit in her evidence Exh.24 has deposed that she was married to one Chandubhai and in the wedlock children were born to her. Her husband Chandubhai used to beat her after consuming liquor. She has deposed that she had eloped away with the accused. She has deposed that the accused resided in her locality and as he used to frequently visit her house, she fell in love with the accused. Thereafter she went away to Vapi along with the accused. Ajit used to work as a driver. She has deposed that thereafter they stayed at the house of Bhupendra situated at village Balpur for a period of around 10 to 15 days. She has deposed that at Balpur, Bhupendra resided along with his wife Aruna their children and his mother. When she herself and Ajit reached at the house of Bhupendra at Balpur, Bhupendra had gone to Bardoli for work. Bhupendra returned in the evening along with his truck. Bhupendra thereafter stayed back at his house and they all went to sleep after having food. She has deposed that Ajit came at the house of Bhupendra at around 1.00 O'clock in the night with the truck and went to sleep. On the next day at around 7.00 O'clock in the morning Ajit went away along with his truck stating that he had to go for work. Thereafter through talks of people residing in the village, she learnt that a Page 16 of 27 R/CR.A/973/2009 CAV JUDGMENT dead body of a person was lying on a road. The P.W.9 went at the place where the dead body was lying. On reaching the place where the dead body was lying, she learnt that the dead man was Jagdish, a resident of Chorwad. She has deposed that as Jagdish was a resident of her village she knew him. Police had interrogated her for 3 to 4 times. She has deposed that when Ajit came home in the night he was drunk and went to sleep having a glass of water. She did not inquire anything with Ajit regarding food. She has deposed that Ajit did not disclose anything to her. It appears that the P.W.9 has been declared as a hostile witness. In the cross-examination by the Public Prosecutor she was contradicted with her police statement in which she has stated that Ajit had come to the house of Bhupendra on 19th May, 2008 at around 1.30 in the night and at that time Ajit looked quite frightened. On inquiring with Ajit he disclosed before the P.W.9 that he had gone to village Katkui to attend a wedding along with the deceased where he had a fight with the deceased and therefore, he killed Jagdish. However, the P.W.9 denied having given any such statement before the Police. In her cross- examination on behalf of the accused she has deposed that Jagdish and Ajit had no enmity whatsoever. She has deposed that when the police recorded her statement for the last time on 28th May, 2008, at that time Bhupendra was present. Bhupendra was also present in the village when the dead body was spotted. She has deposed that it was told by Bhupendra that everyone should give a consistent statement before the police.
J) The P.W.10 Ishwarbhai Gamit is the father of the deceased. In his evidence Exh.25 he has deposed that he is Page 17 of 27 R/CR.A/973/2009 CAV JUDGMENT married to Nituben and in the wedlock two sons were born. The deceased Jagdish was one of those. Jagdish was unmarried. He has deposed that his son Jagdish was working as a Cleaner on a truck which was being driven by the accused Ajit. He has deposed that he was informed by the villagers of Balpur regarding the incident. He has deposed that on 19 th May, 2008 he was informed on phone that his son Jagdish was dead. He has deposed that thereafter his brother and others had gone to Balpur. However, he had not gone to Balpur. He has deposed that he had seen the dead body of his son Jagdish when the same was brought at his house. Jagdish had sustained injuries on his thigh, waist and other parts of the body. The P.W.10 had no idea as to how Jagdish sustained those injuries. Even at a later stage he was not able to gather any information as to who had killed Jagdish and how the incident had occurred. P.W.10 has also been declared as a hostile witness.
K) The P.W.11 Sanjay Gamit is the brother-in-law of the deceased. In his evidence Exh.26 he has deposed that Jagdish used to work as a Cleaner on the truck and used to accompany Jitu, the accused. The information regarding death of Jagdish was conveyed to him by his friend Shailesh on 20 th at 8 o'clock in the morning on phone. He was conveyed that his brother-in- law had been killed and his dead body was lying on a road at village Balpur. On learning about the incident he himself along with the Sarpanch and few other persons of the village had gone to the village Balpur. On reaching Balpur he found Jagdish lying on the road in a naked condition. Jagdish had sustained injuries on his waist and private part. He has deposed that how the incident had occurred and who had Page 18 of 27 R/CR.A/973/2009 CAV JUDGMENT inflicted the injuries was not known to him. He has deposed that the accused had conveyed to them that on the date of the incident Jagdish had gone along with the accused as a cleaner. In his cross-examination he has deposed that there was no reason to raise any suspicion against the accused. He has also deposed that the accused had no quarrel with Jagdish.
L) The P.W.12 Bhagubhai Gamit has been examined as a panch witness to prove the discovery panchnama Exh.28. However, this witness has also been declared as hostile witness.
M) The P.W.13 Arvindbhai Gamit is the uncle of the deceased. The P.W.13 in his evidence Exh.30 did not support the case of the prosecution and was declared as a hostile witness.
N) The P.W.14 Lavghanbhai Vasava in his evidence Exh.31 has deposed that on 20 th May, 2008 he was serving as a Police Sub Inspector at the Kakrapar Police Station and since the PSI H.S.Ratnu of Vyrara Police Station was on leave, the P.W.14 was also holding an additional charge of the Vyara Police Station. He has deposed that a Head Constable of the Vyara Police Station Bit No.2 had informed him at 10 o'clock on phone that a dead body of a male was found lying naked on a road at village Balpur. He has deposed that accordingly, he had left the Kakrapar Police Station and came to the Vyara Police Station and along with the staff members of the Vyara Police Station reached Vaniya Faliya of village Balpur. He has deposed that many people had gathered at the place where the dead body was lying. He has also deposed that one person Page 19 of 27 R/CR.A/973/2009 CAV JUDGMENT by name Ashokbhai Gamit who was present at the spot lodged a complaint Exh.13. He has deposed that thereafter the inquest panchnama of the dead body was drawn. He recorded the statements of various witnesses. He has deposed that thereafter the truck was seized by drawing a panchnama and clothes of the deceased were recovered from the cabin of the truck.
O) The P.W.15 Rajubhai Desai in his evidence Exh.34 has deposed that on 22nd July, 2008 he was transferred as a Police Sub Inspector from Uchchhal Police Station to Vyara Police Station. He has deposed that PSI Shri Ratnu was investigating C.R.No.I-53/2008 registered at the Vyara Police Station. He has deposed that he had collected the postmortem report Exh.11 and the certificate of the cause of death Exh.35. He has deposed that as there was sufficient material collected in the course of the investigation charge-sheet was filed against the accused. He has deposed in his cross-examination that he had not conducted any investigation in connection with C.R.No.I-53/2008.
P) The P.W.16 H.S.Ratnu is the Investigating Officer. The P.W.16 in his evidence Exh.36 has deposed that on 22 nd May, 2008, he was serving as a Police Sub Inspector at the Vyara Police Station. As he was on leave, on resumption of duty, he had taken over the investigation from Shri L.U.Vasava. He has deposed that he had recorded the statements of various witnesses. He has deposed that the accused was arrested and arrest panchnama was drawn in presence of the panch witnesses. He was arrested on 5th June, 2008. He has deposed that thereafter, on 6th June, 2008, the scene of offence Page 20 of 27 R/CR.A/973/2009 CAV JUDGMENT panchnama at the instance of the accused was drawn. He has deposed that it was the accused who had pointed out the place where the incident had occurred. He has deposed that the owner of the truck Dhirubhai Maganbhai had produced the truck bearing registration No.GJ-5UU-4949, and a panchnama to that effect was drawn in presence of the two panch witnesses.
15. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the trial Court committed any error in holding the accused guilty of the offence of murder.
16. The picture that emerges on the cumulative assessment of the oral evidence on record is that the entire case of the prosecution hinges on the circumstantial evidence. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.Page 21 of 27 R/CR.A/973/2009 CAV JUDGMENT
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure suspicion or moral conviction.
17. A close scrutiny of the evidence on record suggests that the accused was driving a truck bearing Registration No.GJ- 5UU-4949 of the ownership of Dhirubhai Maganbhai. The deceased was working as a cleaner on the said truck. It also appears that the P.W.9 Sulaben Gamit had some illicit relations with the accused. From the evidence of the P.W.9 it appears that she is a married lady but as her husband used to beat her after consuming liquor, she had run away with the accused. It also appears that the accused was afraid of the villagers as he had an apprehension that if the villagers would come to know that Sulaben was maintaining relations with him then they would create problems for him. It also appears from the materials on record that the accused and the P.W.9 Sulaben went at the house of the P.W.4 Bhupendrabhai Gamit, residing Page 22 of 27 R/CR.A/973/2009 CAV JUDGMENT at Balpur, and stayed at his place for a period of around 15 days. According to the case of the prosecution, the incident in question occurred when the accused and the P.W.9 Sulaben were staying at the house of the P.W.4 Bhupendrabhai.
18. The moot question that deserves to be considered is whether there is any cogent or convincing evidence to arrive at the conclusion that it was the accused alone and none else responsible for the death of the deceased. The trial Court while convicting the accused appears to have placed reliance on the following circumstances:-
i) The accused and the P.W.9 Sula had live-in-relations.
ii) The accused and the P.W.9 at the time of the incident were residing at the house of the P.W.4 Bhupendra.
iii) On the night of the incident, the accused had come at the house of the P.W.4 Bhupendra, and this fact has been deposed by the P.W.4 Bhupendra, his wife Aruna and his mother Gamliben.
iv) The three witnesses named above have deposed that on the next day at 6 O'clock in the morning the accused had left their house in his truck.
v) The P.W.4 Bhupendra had also come at his house in his truck, but his truck was found parked in the morning near his house.
Relying on the aforesaid circumstances, the trial Court Page 23 of 27 R/CR.A/973/2009 CAV JUDGMENT has come to the conclusion that the circumstances point only towards the guilt of the accused.
19. We are afraid, the trial Court appears to have committed a serious error in not keeping in mind, the well settled principles of appreciation of circumstantial evidence. In our opinion even if all the five circumstances referred to above are accepted, it does not lead to the only inference that it was the accused who had run over his truck on the lower part of the body of the deceased. We are even prepared to accept the entire medical evidence on record. Even if we accept the case of the prosecution that the cause of death of the deceased was on account of the deceased being run over by a truck, it is very difficult for us to reach to the conclusion that it was the accused who ran over his truck on the deceased causing his death. The only piece of evidence collected by the investigating agency in the course of the investigation on the basis of which perhaps the investigating agency got the clue regarding the genesis of the occurrence is the statement of the P.W.9 Sulaben recorded by the police. The prosecution has put- forward a case that when the accused returned at the house of the P.W.4 Bhupendra at around 1 O'clock in the night, he was found to be quite frightened by the P.W.9 Sulaben and at that time the accused is said to have made an extra-judicial confession before the P.W.9 Sulaben that he himself along with the deceased had gone to the village Katkui to attend a wedding and both had a fight at village Katkui, due to which the accused killed the deceased. Unfortunately for the prosecution this fact could not be proved in the course of the trial. The P.W.9 Sulaben has been declared as a hostile witness. She has resiled from her police statement. No part of Page 24 of 27 R/CR.A/973/2009 CAV JUDGMENT her evidence even after being declared as a hostile witness is helpful to the prosecution in any manner. Therefore, even if we accept the case of the prosecution that on the night of the incident the accused had come at the house of the P.W.4 Bhupendra along with his truck does not establish anything. Such a circumstance could have provided a connecting link, if the alleged extra-judicial confession made by the accused before the P.W.9 had been proved by the prosecution.
20. We have noticed that the trial Court in Para-22 of his judgment has observed that no investigation has been carried- out by the police to ascertain as to what had happened at the village Katkui between the accused and the deceased. When the police got the clue from the statement of the P.W.9 recorded in the course of the investigation that something had gone wrong between the accused and the deceased at the village Katkui, then it was very much essential for the police to have carried-out some investigation in that regard.
21. In view of the above we do not find any circumstance which could be termed as an incriminating circumstance pointing only towards the guilt of the accused. The prosecution has also tried to place reliance on the panchnama Exh.29 which is termed as a panchnama drawn under Section 27 of the Evidence Act. However, none of the panch witnesses have supported the case of the prosecution and once again the Investigating Officer has also failed to prove the contents of those panchnamas which could not be proved through the evidence of the independent panch witnesses. Had it been so, perhaps there could have been something to point a finger towards the accused. In the present case even the motive has Page 25 of 27 R/CR.A/973/2009 CAV JUDGMENT not been established by the prosecution. Once we reject the case of the prosecution regarding the alleged fight which had ensued between the accused and the deceased at the village Katkui, then in such circumstances, a very important question arise regarding the motive. What could be the motive on the part of he accused to have committed the murder of the deceased. We should be mindful of the fact that the entire case hinges on the circumstantial evidence and therefore, the motive assumes much importance. Most of the witnesses have deposed that the accused had no enmity worth the name with the deceased.
22. Going by the case of the prosecution that the deceased was intentionally run over by a truck driven by the accused bearing registration No.GJ-5UU-4949, we thought fit to look into Exh.33 i.e. the F.S.L. Opinion regarding the vehicle as well as the dead body of the deceased. The opinion reads as under:-
"Abrasion was found on the upper and lower parts of the right thigh of the deceased person. Looking to its impression, it could be a tyre mark. The testicles are found ruptured. On the underwear produced, no impression or marks of abrasions were found on the same. The deceased had not worn the said underwear at the time of the incident. Jeans pant along with a belt, had no marks or impression on the same. The yellow coloured shirt on which fresh carbon marks and crease were found could have got pressed below the tyre. There were no blood marks at the place of cabin, carrier or tyres of the truck (on lower side). No blood marks are found on the underwear produced. One abrasion is found on the elbow part of right hand of the deceased. No other ante mortem injury apart from Page 26 of 27 R/CR.A/973/2009 CAV JUDGMENT right thigh and right hand elbow found on the deceased."
23. The opinion expressed by the Forensic Science Laboratory as regards the condition of the truck in question also does not lead the case of the prosecution anywhere.
24. In the overall view of the matter, we are convinced that the trial Court committed an error in finding the accused- appellant guilty of the offence of murder by placing reliance on circumstances, which at the best, may raise strong suspicion against the accused. Suspicion, however strong may be, cannot take the place of proof.
25. For the foregoing reasons, the appeal succeeds and is allowed. The order of conviction and sentence passed by the trial Court in Sessions Case No. 61 of 2008 is hereby set aside. The accused-appellant is ordered to be released forthwith, if not required in any other case.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 27 of 27