Gujarat High Court
Mir Karim @ Kano Ghusabhai vs State Of ... on 14 October, 2015
Author: Anant S.Dave
Bench: Anant S. Dave, Z.K.Saiyed
R/CR.A/406/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 406 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
==========================================================
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 ?
==========================================================
MIR KARIM @ KANO GHUSABHAI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
==========================================================
Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR.HARDIK B SHAH, ADVOCATE for the Appellant(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 14/10/2015
CAV JUDGMENT
Page 1 of 22
HC-NIC Page 1 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. By way of present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of conviction dated 24.12.2008 passed by the learned Third Additional Sessions Judge, Mehsana, in Sessions Case No.68 of 2008. The said case was registered against the appellant-original accused for the offences punishable under Sections 397, 394 and 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act. By the impugned judgment and order the appellant is acquitted for the offence under Section 397 of the Indian Penal Code and under Section 135 of the Bombay Police Act. However, the appellant is convicted for the offence under Section 394 of the Indian Penal Code and sentenced to undergo R.I. of 10 years and fine a fine of Rs.1,000/, in default, R.I. for one month. The appellant is also convicted under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs.1,000/, in default, R.I. for one month for the offence punishable under Section 302 of the Indian Penal Page 2 of 22 HC-NIC Page 2 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT Code. All the sentences are ordered to run concurrently.
2. According to the prosecution case, the complainant's son Kishan and daughter Gangaben went to the outskirts of Ubakhal village for grazing sheep and goats at about 10 o'clock in the morning on 08.01.2008 and he was at home. As Kishan and Ganga did not return along with sheep and goats even after 04 o'clock in the evening, he went to the surrounding areas on the outskirts of Ubakhal village to make inquiry at about 05 o'clock and searched there, but he could not trace children or sheep and goats. Therefore, he continued search. As it was daylight at about quarter to seven in the next morning, he went to Mandali (Vihar) outskirts situated adjoining Ubakhal outskirt for searching his children. When both Vaghari Davjibhai's wife Shantaben and his daughter, residents of Ubakhal, went to the outskirts of Mandali for grazing their goats, they heard shouts "Save, Save" as both his daughter Gangaben and Kishan were shouting on the other side of railway line towards Mandali, but they believed that children are shouting flying Page 3 of 22 HC-NIC Page 3 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT kites on the occasion of Uttarayan. As complainant was informed in the early morning that children were on the outskirt of Mandali, as complainant searched on the outskirts of Mandali, dead body of his daughter Gangaben was found from the mustard field belonging to Patel Vishnubhai Dahyalal and dead body of his son Kishan was lying in the field cultivated with Nilgiri, belonging to Patel Babubhai Narotamdas. Therefore, he immediately informed in Vasai Police Station through phone and police came to the place of occurrence and carried out the procedure. His nephew Vanzara Popatji told him two days back that Mir Karim @ Kana Ghusabhai, resident of Rathod Paldi, had been stating for the last three or four days that he wanted to purchase sheep and goats, and he has been wandering with Kishan and Ganga at pasture land of Ubakhal for two days. The said Karim @ Kana Ghusabhai and his accomplices went to the place, where Kishan and Ganga took sheep and goats, in the morning itself for taking sheep and goats with them. They have committed murders of both children by causing injuries in the heads and strangulating in the afternoon at the Page 4 of 22 HC-NIC Page 4 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT aforesaid place on the outskirt of Mandali, from where the dead bodies have been found. Therefore, on these facts complaint came to be lodged against the accused person and other unknown persons. As complainant gave the aforesaid detailed complaint before Police Inspector of Vasai, the complaint was accordingly recorded. On the basis of the same, offence was registered vide C.R. No.I5 of 2008 u/s 302, 120B, 34 of the I.P.C. with Vasai Police Station on 09.01.2008. As such fact was revealed during investigation that both deceased children went to graze about 50 sheep and goats where accused Mir Karim @ Kano Ghusabhai and his accomplices looted goats and sheep from the possession of both children and caused death of both children by strangulation, and took goats and sheep, the offence u/s 394, 397 of the I.P.C. was being constituted, report was given to add section 394 and 397 of the I.P.C. and accordingly, offence was registered. Police Inspector Mr. M.D. Solanki and P.S.I. Mr. M.N. Harsh conducted further investigation and accordingly, statements of necessary witnesses were taken for investigation. Mamlatdar was informed for Page 5 of 22 HC-NIC Page 5 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT filling inquest. P.M. of dead bodies were got performed. Panchnama of place of occurrence was drawn. The accused was arrested and medical treatment of accused was got done. The identification parade of accused was conducted. The adhivato (a kind of cloth) worn by accused was seized and other necessary panchnamas were drawn and muddamal seized was forwarded to F.S.L., Ahmedabad for examination. The charge sheet was filed against accused in the court of learned Judicial Magistrate of Vijapur. The said charge sheet was registered vide Criminal Case No. 399/08.
3. Thereafter, charge Ex.4 came to be framed and explained to the accused person, to which he pleaded not guilty and claimed to be tried.
4. In order to bring home the charges against the accused person, prosecution has examined witnesses and also produced documentary evidences.
5. Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the accused person Page 6 of 22 HC-NIC Page 6 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT denied the case of the prosecution and submitted that a false case is filed against him.
6. On conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment and order convicted the appellant - accused as stated above.
7. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 24.12.2008 passed by the learned Third Additional Sessions Judge, Mehsana, in Sessions Case No.68 of 2008 the appellant has preferred the present appeal before this Court.
8. Heard Mr.Hardik B. Shah, learned counsel for the appellant. He has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspective.
9. He has contended that appellant is Page 7 of 22 HC-NIC Page 7 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT innocent and due to some doubt present appellant is chargesheeted by the police. There is no direct evidence produced on record. He has drawn attention of the Court to the list of the witnesses and contended that prosecution has examined 23 witnesses and he has read cross examination of the witnesses and contended that from the evidence of the witnesses no quality evidence is produced by the prosecution. He has read evidence of the doctor P.W. No.1 Ex.11 and P.W. No.2 Ex.15 and contended that through medical evidence prosecution could not prove its case beyond reasonable doubt through oral version of the expert witnesses. He has prayed that benefit of doubt is required to be given to the appellant accused.
10. It is further contended by learned counsel for the appellant that from the evidence of the Investigating Officer P.W. Nos.32 and 33 at Ex.71 and 93 respectively the Investigating Officer has never recovered any sharp edged weapon. He has contended that so far as evidence of the T.I.Parade is concerned, present appellant was taken by him at different places of the village during the investigation and Page 8 of 22 HC-NIC Page 8 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT proper care and caution was not taken by the investigating agency for the identification of the present appellant. The Investigating Officer has not followed the principles for identification parade laid down by the Hon'ble High Court as well as Hon'ble Apex Court. He has contended that on 17.1.2008 accused was taken by Investigating Officer to different places and due to that act of the Investigating Officer identity of the appellant was disclosed to all the witnesses. He has further read panchnama of identification parade and evidence of the Executive Magistrate as well as evidence of the witnesses through whom appellant was identified.
11. He has contended that prosecution has examined witnesses in support of the prosecution case. He has contended that the learned Judge has considered the evidence of complainant at Ex.32 Ms.Shantaben Davjibhai Vaghri, who has not supported the case of prosecution. On the contrary from reading the evidence there appears to be separate set of evidence vide Ex.32 Shantaben who has admitted in deposition of crossexamination that she Page 9 of 22 HC-NIC Page 9 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT knew appellant because appellant was living behind the house of deceased. She has also admitted that she has seen deceased alone with their sheeps and goats in "Bordi". She has not seen appellant on 08.01.2008.
12. He has contended that though it comes on evidence vide Ex.34 - Jagaji Dalaji, who is conductor of vehicle No.409, has admitted that person identified by him in Mamlatdar office, the police has informed him that they have arrested accused person. In Ex.35 Bhikabhai Mohanbhai has admitted in his deposition that he had not seen any person with deceased and sheeps and goats. He has also deposed that when he moved towards his house at three O'clock at that time deceased were with their sheeps and goats on 8.1.2008.
13. He has contended that at Ex.15 Dr.Govindbhai Purshottambhai Patel has deposed that hanging to death of deceased Karshan Babujibhai Vanjara is not possible with the help of shawl. Vide Ex.78 shawl has been recovered. He has further contended that in the present case prosecution could not establish actual Page 10 of 22 HC-NIC Page 10 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT presence of the present appellant with both the deceased. He has contended that the learned Judge has observed from the discovery panchnama and evidence of the Investigating Officer the prosecution has proved contents of the discovery panchnama which was produced by the present appellant but so far provisions of Section 27 of the Evidence Act is concerned, the ingredients of said provisions are not proved through oral version of the Investigating Officer. He has further contended that as per case of the prosecution it is relied by the prosecution from the contention of the identification parade, panchnama, evidence of the Executive Magistrate and panchas but when the main principles are not followed by the Executive Magistrate during the identification parade, the prosecution cannot say that prosecution has proved its case beyond reasonable doubt. He has contended that in the present case learned Judge has convicted the present appellant accused in a very harsh manner and, therefore, he has prayed to quash and set aside the conviction of the present appellant. He has prayed to grant benefit of doubt to the present Page 11 of 22 HC-NIC Page 11 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT appellant. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge deserves to be set aside.
14. Heard Mr.H.S.Soni, learned APP for the respondent - State. He has read charge and contended that in the present case it is disclosed by the witnesses that deceased Ganga had disclosed to him that, why present appellant was moving with them and in the reply she has clarified that present appellant accused will give them lambs and they will rear them. He has contended that in the present case prosecution has examined sufficient witnesses and from the evidence of the material witness presence of the appellant
- accused with both the deceased was proved beyond reasonable doubt. He read panchnama of place of offence and contended that from the place of offence prosecution has recovered material evidence in the form of circumstantial evidence. In reply of arguments of learned counsel for the appellant learned APP has Page 12 of 22 HC-NIC Page 12 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT read contents of the medical certificate of appellant accused produced at Ex.12 and contended that looking to the injuries which are disclosed by the doctor it was possible prior to the incident and even if that issue may be considered then it can be accepted that during the scuffle with the deceased nail injury can be possible and it was found from the body of the appellant accused. He has read contents of Ex.13, treatment report of the present appellant accused and contended that from the defence version made by the present appellant accused defence could not establish his defence beyond reasonable doubt. He has contended that as per the postmortem note of deceased Kishanbhai produced at Ex.17 and postmortem note of Gandaben produced at Ex.18 the contents are proved through oral version of the P.W. No.1 Dr. Rajnikant Patel and P.W. No.2 Govindbhai Patel examined at Ex.11 and 15 respectively. He has further contended that as per the contents of the panchnama at Ex.75 it is proved through oral version regarding the place of loot which is shown as place of cattle vada. He has further contended that present appellant has produced stick which is Page 13 of 22 HC-NIC Page 13 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT recovered under panchnama Ex.77 and shown at panchnama at Ex.78 respectively. He has further read evidence of the witnesses and contended that muddamal cattle were taken by the present appellant in vehicle and driver of the vehicle and owner of the vehicle are also examined by the prosecution and identification of the present appellant accused by them is also proved beyond reasonable doubt. He has contended that stolen cattle were discovered and recovered during the investigation and it was the duty of the present appellant to disclose regarding possession of the cattle under Section 114 of the Evidence Act. He has contended that ingredient of Section 394 of the Code are proved through oral version of the witnesses and learned Judge has rightly considered that prosecution has proved its case against the present appellant. He has read forwarding letter Ex.89 and report of the FSL produced at Ex.90 and 91 and report produced at Ex.92 and contended that from the circumstantial evidence blood of the deceased were also found from the muddamal article through serological report. He has contended that so far as Ex.94 discovery panchnama of cloth of the Page 14 of 22 HC-NIC Page 14 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT accused is concerned, Dhotiya was discovered by him at the place of hut of his father and that contention is also proved against the present appellant. He has contended that present appellant accused is convicted by the learned Judge for double murder and two innocent minors who were children of the poor person were brutally killed by present appellant with a motive to get possession of the cattle and by selling cattle he could gain monetary benefit. He has contended that the learned Judge has established prima facie motive which is proved against the present appellant accused and he was seen with both the deceased prior to the incident and it was disclosed by the independent witnesses and even in statement recorded under Section 313 of the Criminal Procedure Code the appellant could not disclose anything in support of his innocence. He has contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. Therefore, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed.
Page 15 of 22HC-NIC Page 15 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT
15. He has contended that sufficient corroborative pieces of evidences are produced on record. He has contended that the prosecution, by leading sufficient evidence has proved the offence beyond reasonable doubt and learned Judge has rightly considered the case of the prosecution against the present appellant. He has, therefore, prayed to confirm the judgment and order of the learned Judge.
16. We have heard learned counsel for the respective parties. We have gone through the papers produced in the case. We have minutely perused evidence of the witnesses examined by the prosecution. On perusal of oral as well as documentary evidence of present case, the present case is regarding presence of the present appellant with the deceased is concerned, the presence of the present appellant - accused is fully supported by the independent witnesses and even through evidence of Shantaben, she had made inquiry from the deceased Ganga herself that why present appellant was moving with them. We have minutely perused evidence of the prosecution. In result of the arguments made by learned counsel Page 16 of 22 HC-NIC Page 16 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT appearing on behalf of the present appellant with regard to motive, it is well settled law that mainly motive is neither alleged nor proved the same would ipso facto not affect the prosecution case but in case there are other circumstances to create doubt regarding veracity of the prosecution case, this may also become material. In the present case it is proved through oral version of the witnesses that from the first day of visit of the present appellant at the place of offence with both the deceased that was his goal to get possession of all cattle from both the deceased children and that was his intention to sell out all the cattle and get monetary benefit. So far as motive is concerned, even if the prosecution did not adduce satisfactory evidence on the aspect of motive it is not sufficient to throw out the prosecution case as unreliable. When there is evidence to show that the accused alone has committed the murder the absence of proof of motive does not vitiate the prosecution case. In the present case we have perused evidence of the prosecution. It is true that motive which is not always capable of precise proof, if proved, may only lend additional Page 17 of 22 HC-NIC Page 17 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT support to strengthen the probability of commission of offence by the present appellant, but absence of proof does not ipso facto warrant acquittal. We are of the opinion that even in case of circumstantial evidence if the circumstances relied upon by the prosecution are proved beyond doubt then absence of motive would not hamper the conviction. In the present case that submission and argument of present appellant which is argued before us that prosecution could not establish motive prima facie, but in view of above observation that question does not arise to acquit the present appellant - accused in the case of double murder.
17. In the present case, through oral version and documentary evidence it is established on record that prior to the incident and prior to some days ago present appellant was always present with both the deceased children at the said place at which deceased were moving for grazing cattle. We have minutely perused theory of last seen together. The last seen theory comes into play where the time gap between the point of time when the accused and Page 18 of 22 HC-NIC Page 18 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other person coming in between exists. In absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in the present case. From the evidence of the witnesses we have perused evidence and evidence of the witnesses disclosed that accused appellant was present with the deceased that evidence is positively established, trustworthy and reliable and that evidence has ring of truth. It stands fully established that they had seen the deceased and the appellant on the day of the incident and evidence of said witnesses as well as circumstances shows that in fact deceased was moving with the cattle for grazing and dead body of both the deceased were found and that matter was reported to the police and FIR was recorded and through Page 19 of 22 HC-NIC Page 19 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT investigation conducted by the investigating agency stolen property was also discovered by the present appellant accused and as per the provisions of Section 8 of the Evidence Act the conduct of the appellant is established beyond reasonable doubt that as per the circumstantial evidence of the prosecution case and discovery and recovery made in the present case it shows that present appellant is apparently involved in the double murder case of both the deceased children and muddamal which is recovered and discovered that shows that prosecution has proved its case against the present appellant without any doubt. In the present case two minor children are killed by the present appellant with motive to get some monetary benefit by selling out cattle which were taken by him after committing murder of both the deceased children. We have found that this is a preplanned murder committed by the present appellant and it is also established that murder is committed in the brutal manner. Injuries which were found from the body of the deceased it is also evident and it has evidentiary value also to show that present appellant -
Page 20 of 22HC-NIC Page 20 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT accused has committed brutal murder. We are of the opinion that when direct evidence from the witnesses in oral version is available, proved, trustworthy, reliable and acceptable and in support of that evidence circumstantial evidence like discovery and recovery made from the present appellant and in support of that evidence the presence of present appellant accused is proved through oral version of the witnesses at the place of offence prior to the incident and that is also proved through oral version of the panchas as well as independent witnesses and Executive Magistrate who has carried out identification parade panchnama.
18. In the context of above, we have considered the conduct of the present appellant. Therefore, from the overall evidence produced on record it is prima facie proved beyond reasonable doubt that, the main ingredients of Section 302 of the Indian Penal Code are proved and defence which is taken by the present appellant cannot be considered in his favour. We are, thus, in full agreement with the reasons given and findings recorded by the trial Court while convicting the appellant Page 21 of 22 HC-NIC Page 21 of 22 Created On Thu Oct 15 02:45:33 IST 2015 R/CR.A/406/2011 CAV JUDGMENT
- accused. In our view, the impugned judgment is just, legal and proper and requires no interference by this Court. Hence this appeal deserves to be dismissed.
19. In the result, the appeal is dismissed.
The impugned judgment and order of conviction dated 24.12.2008 passed by the learned Third Additional Sessions Judge, Mehsana, in Sessions Case No.68 of 2008, convicting the appellant - accused is hereby confirmed.
20. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.
(ANANT S.DAVE, J.) (Z.K.SAIYED, J.) KKS Page 22 of 22 HC-NIC Page 22 of 22 Created On Thu Oct 15 02:45:33 IST 2015