Gujarat High Court
State Of Gujarat vs Luhar Mahendra Harjivan on 23 July, 1998
Equivalent citations: (1999)2GLR1086
Author: A.L. Dave
Bench: A.L. Dave
JUDGMENT A.L. Dave, J.
1. This appeal arises out of a judgment and order dated 14th November, 1984, passed by the learned Additional Sessions Judge, Rajkot, in Sessions Case No. 34 of 1984, acquitting the respondent of charges of robbery, murder and receiving stolen property.
2.1 The facts of the case which led to the present litigation are that, during the night between 9th June, 1984 and 10th June, 1984, watchman-Ukabhai Mavjibhai of Hira Panna Textiles, situated in Govindbaug area of Rajkot city, was found to be dead in the early morning hours of 10th June, 1984 when his wife went to serve him a cup of tea. The deceased was found to be lying on the terrace of the factory in an injured condition. She, therefore, rushed to her home and informed her son about the incident. Thereafter, her son immediately, informed the owner of Hira Panna Textiles. On his arrival, it was also found that a steel cupboard in the office of the factory was broken open and approximately Rs. 2,200/- were stolen therefrom. It was later noticed that a brief-case of Aristocrat brand, black in colour, which was normally kept by the owner of the factory beside the cupboard was also missing. The son of the deceased, therefore, lodged a First Information Report before the Rajkot police and the police, after registering the offence at C. R. No. I-179 of 1984, started with the investigation.
2.2 On the other hand, the accused was apprehended at Wankaner Railway Station on 10th June, 1984, in the afternoon by Wankaner Railway Police upon suspicion. He was found to be travelling without ticket for which he was taken to the concerned Railway Ticket Collector and was charged Rs. 15/- therefore. At that time, accused was found to be in possession of a black Aristocrat brand brief-case. He could not explain the possession thereof. The brief-case contained some printed envelopes bearing name of Hira Panna Textiles, so also some of the gift cards which bore rubber stamp of Hira Panna Textiles. The brief-case also contained some undergarments, napkins and a blue jeans. The accused could not explain his possession of these articles. At that time, the accused was found to be having Rs. 1,760/- for which also he could not tender any satisfactory explanation and, therefore, the accused was arrested under Section 41(1)(d) of the Code of Criminal Procedure. Later on, by transfer warrant, he was taken in custody by the Rajkot police and was booked for the present offence registered with the Rajkot City Police Station vide C.R. No. 179 of 1984 under Sections 302, 457, 397 and 411 of the Indian Penal Code.
2.3 The Rajkot police prepared Inquest Panchnama, Panchnama of place of offence, got the post-mortem of the body carried out and after making further investigations, came to the conclusion that the accused had entered the premises, murdered deceased-Ukabhai, broken open the cupboard and committed robbery of Rs. 2,200/- therefrom, besides brief-case lying in the factory and, therefore, charge-sheeted him for the said offences.
3. The learned Magistrate committed the matter to the Court of Sessions at Rajkot as the offences with which the accused was charged were triable by the Court of Sessions. The learned Sessions Judge, in turn, transferred the case to the learned Additional Sessions Judge under Section 209 of the Code of Criminal Procedure and the learned Additional Sessions Judge, initially, framed charge against the accused at Ex. 1 on 5th October, 1984, but later on amended the charge and reframed the same on 16th October, 1984 vide Ex. 7. The accused pleaded not guilty and expressed his desire to face the trial.
4. After considering the evidence led by the prosecution, the learned Additional Sessions Judge, came to the conclusion that the prosecution had failed to prove the charge against the accused beyond reasonable doubt and, therefore, acquitted the accused-respondent by giving him benefit of doubt. It is this judgment and order which is challenged by the State in this acquittal appeal.
5. We have heard Mr. D. N. Patel, learned Additional Public Prosecutor for the State and Mr. P. M. Vyas for the respondent. We have also gone through the original record and proceedings for which both of them have been of considerable assistance.
6.1 While going through the impugned judgment, we find that the learned Additional Sessions Judge was much impressed by the fact that this was a case of circumstantial evidence and the prosecution had not proved the case against the accused to the hilt.
6.2 Broadly speaking, the accused-respondent was given benefit of doubt on the ground that, if the Inquest Panchnama and evidence of the wife of the deceased, who first came to the spot are perused, it could be seen that the dead body was found to be lying resting its head on a shirt and that it was covered with a white cloth. This indicated that there was no scuffle at the time when the deceased sustained injuries. It was found that this circumstance creates a doubt for the reason that, if the deceased were to sustain two injuries on his head and one on his face, he would have naturally reacted to the injuries and resisted to the assault and, in that event, there would have been some indications of scuffle and, therefore, the story of the prosecution was found to be doubtful.
6.3 According to the prosecution, the accused, after his arrest, discovered the leg of a wooden cot in presence of Panch-witnesses, which was allegedly used by him in causing injury to the deceased. It was noticed by the trial Court that, in that terrace much more heavier and effective weapons were found to be lying near the place from where the leg of the wooden cot was allegedly taken by the accused and, therefore, ordinarily, a man would not choose such a weapon, if he really intended to cause death of the person assailed. It was also observed that, if the assailant/ accused really intended to cause death of the deceased, instead of giving blow with the leg of the wooden cot, he could have easily strangulated the deceased when he was lying, which would have been an easier way to get rid of the man. This was considered as a doubtful circumstance in the story of the prosecution.
6.4 Admittedly, the cupboard in the office of Hira Panna factory was broken open. According to the prosecution, the keys of that cupboard was found to be in the brief-case, which was allegedly recovered from the accused at Wankaner. The Panchnama of the place of offence indicated that the offender had searched the drawers of the table and surrounding place. The trial Court, therefore, observed that an inference can be drawn that, if the culprit searched the drawer, he would also have searched the brief-case and if the brief-case contained the keys of the cupboard, there was no need for the culprit to break open the cupboard and, therefore, the theory of the prosecution was considered doubtful in any case.
6.5 It was also observed that no prudent man involved in an offence would keep any material that may trace him to the offence and finding of the stationery of Hira Panna Textiles in the brief-case allegedly found to be in possession of the accused was not likely. The accused could have very well got rid of these documents during the course of the following day till he was arrested and, therefore, the prosecution story raises doubt.
6.6 That trial Court did not accept the version of witness-Abdul, Ex. 30, for the reason that he runs a tea shop and as a number of customers visit the tea shop during the course of the day, there is no likelihood of that witness remembering the visit of the accused at 5-30 in the morning of 10th June, 1984 with a brief-case. Likewise, witness-Himatlal, Ex. 42, who claims to have sold jeans to the accused on 10th June, 1984, at Wankaner, is also not believed by the trial Court on the same ground and because no test identification parade was arranged by the investigating officer, it is considered as suspicious circumstance in favour of the accused.
6.7 The employer of the accused and the Pan shop owner were examined by the prosecution to indicate that the financial condition of the accused was not sound. To indicate that the employer was really the employer of the accused, his wage card for the month of March 1984 was produced at Ex. 24. The trial Court came to the conclusion that it cannot be inferred that the financial condition of the accused was poor simply because the owner says that he was paying only Rs. 17/- per day to the accused and that he had lastly drawn only Rs. 100/- for going home town because the wage card, Ex. 24, indicated that the accused had sizable number of hours of overtime to his credit, which must have added to his earnings. Likewise, the Pan shop owner was not believed by the learned trial Judge for the reason that he was not maintaining any books of account, he had not obtained any licence from the local authorities to run the shop and the slip containing the accounts of the accused was, in his opinion, written in a single sitting by the same person and, therefore, according to the learned trial Judge, no inference can be drawn that because of financial crisis, he was prone to commit this offence.
6.8 A diary was found from the brief-case, which was recovered from the accused at Wankaner Railway Station. It carried an endorsement that Rs. 3/- were spent on "T" and inferred that this "T" indicated purchase of ticket. It was, therefore, concluded that the person who possessed the brief-case had purchased a ticket for Rs. 3/- on 10th June, 1984. If that be so, there was no question of the passenger paying any penalty for travelling without ticket as was done by the accused and, therefore, there was some substance in the defence taken by the accused that though he was arrested by the police at Wankaner Railway Station and was fined for Rs. 15/- for travelling without ticket, he was never in possession of the brief-case as alleged by the prosecution.
6.9 Likewise, absence of any material to indicate as to what were the other belongings of the accused that might have been found from pockets, etc., was considered a doubtful circumstance by the trial Court. The seizure of the muddamal by the Railway Police was also found to be not properly done and done in a way as to raise doubt in the mind of the Court. The muddamal when seized was not sealed and no signature of the Panchas was obtained even on material which could have been signed by those Panchas.
6.10 According to the F.I.R., an amount of Rs. 2,200/- was stolen. The owner of Hira Panna Textiles said that an amount of Rs. 1,400/- plus Rs. 5 to 700/- were stolen. Rs. 1,760/- were recovered from the accused and, therefore, according to the learned trial Judge, it raised a doubt as to the amount stolen and recovered from the accused.
6.11 Keeping all these aspects in mind, the learned trial Judge came to the conclusion that the entire story of the prosecution was not believable and as there was no direct evidence and the case rested only on circumstantial evidence, it cannot be accepted against the accused. The learned trial Judge, therefore, acquitted the accused giving him benefit of doubt.
7. The learned Additional Public Prosecutor has assailed the impugned judgment and order on the ground that the learned trial Judge has taken a very liberal view while evaluating the evidence. The learned trial Judge has not considered that the accused was found to be in possession of the stolen property soon after the incident, i.e., within hours of the incident, at a distant place. The recovery of the brief-case and contents thereof is duly proved by examination of Panch witnesses. The accused was seen at Rajkot in the early morning hours of 10th June, 1984, a time which was very proximate to the incident. Mr. Patel then argued that the finding of jeans from the brief-case, evidence of vendor of jeans and total denial of possession by the accused have not been properly evaluated by the trial Court. It was argued that silence in F.I.R. about the loss of brief-case has been given undue weightage overlooking the fact that F.I.R. was given by son of the deceased and not by the owner of Hira Panna Textiles. The learned trial Judge has not considered that the accused visited the tea shop of witness-Abdul in early morning hours at about 5-30 a.m., when there would be no rush and, therefore, he would naturally remember the accused properly. Likewise, it was also not considered by the learned trial Judge that witness-Himatlal, who sold jeans to the accused also could have identified the accused, as they had some personal talks while the transaction took place which would not be normally done by a routine customer. Mr. Patel then places reliance on certain decisions to show that, if the incident of robbery and murder are found to be in the same transaction, then possession of stolen property would lead to an inference/presumption that the person found in possession of stolen property had committed the murder, unless possession is properly explained to by such person. Mr. Patel, therefore, urged that the appeal may be allowed and the judgment and order of acquittal may be set aside and the accused be convicted for the offences that he was charged with.
8. Mr. P. M. Vyas, learned Advocate appearing for the respondent-accused, has practically reiterated the grounds relied upon by the learned trial Judge while passing the impugned judgment and order. Mr. Vyas submitted that the accused is a victim of a story fabricated jointly by the owner of Hira Panna Textiles and the Police. The accused was not in Rajkot at the time of the incident as can be seen from the evidence of the employer. He also urged that Fedrik Motilal, Ex. 50, who arrested the accused at Wankaner Railway Station, had falsely implicated him. In fact, the accused was not possessing the brief-case at all if the deposition of Himatlal, Ex. 42, is properly perused. Himatlal in his deposition has stated that on 10th June, 1984, accused came to him at about 12-30 p.m., and purchased a blue jeans and put it in his bag. This witness nowhere speaks of any brief-case to be in possession of the accused. Likewise, Narsingbhai Naykabhai, Ex. 73, also admits that he had not stated anything in his police statement about presence of envelopes, gift cards, etc., in the brief-case and, therefore, the conclusion arrived at by the lower Court that the prosecution story does not form a complete chain of circumstances leading to the accused may be upheld. Mr. Vyas argued further that it is the evidence of witnesses that the accused had entered the toilet of the train, came out of the toilet and then went to the toilet on the platform for the alleged change of dress. Mr. Vyas submitted that no normal person would undertake this type of exercise. He could have and would have very well made use of the toilet of the train for change of dress and, therefore, the conclusion of the learned trial Judge giving benefit of doubt to the accused does not call for any interference by this Court and the appeal, therefore, may be dismissed and the impugned judgment and order may be upheld.
9. It will now be necessary to examine if the circumstantial evidence led by prosecution form an unbroken chain to connect the accused and the offence at its ends.
10. At the outset, it may be stated that there is no dispute on the factum of Ukabhai having been murdered by causing injuries on his head and face. As the evidence is, it is very clear from deposition of wife of the deceased-Chothiben, Ex. 21, that the deceased was last seen alive by her in the evening of 9th June, 1984 when he came for his evening meal and then went to the factory of Hira Panna Textiles. It is also evident from the said deposition of witness-Chothiben that next morning, i.e., on 10th June, 1984, when she went to the factory to serve the deceased with a cup of tea, at 6-30 a.m., she found him dead. It is also in the evidence that during that night only the brief-case was stolen, the steel cupboard was broken open and approximately Rs. 2,200/- were stolen by somebody. This indicates that the murder of the deceased and the stealing of the brief-case and money from the factory were committed during the night falling between 9th and 10th June, 1984. The deceased was the watchman in the said factory and was sleeping on the terrace when he was murdered. Both the offences, therefore, had taken place in the same premises. Now, if we look at the medical evidence, it is found that the post-mortem notes of deceased Ukabhai at Ex. 10 indicate that rigor mortis was present all over the body. Likewise, post-mortem lividity was also seen on dependent parts of the body. It is also found that the stomach was empty indicating that the deceased must not have taken any food within four hours prior to his death. It is also found from the deposition of Chothiben that when she went to the terrace of the factory in search of her husband on 10th June, 1984, in the morning, she found that blood was coming out of the injuries and the nose of the deceased. All these aspects taken collectively can lead to a necessary inference that the deceased was assailed upon in the early morning hours of 10th June, 1984. It is also established that the theft had occurred during the night falling between 9th and 10th June, 1984, through the depositions of Chothiben, complainant and witness-Shankerlal Laljibhai (Ex. 19), the owner of Hira Panna Textiles. The necessary conclusion, therefore, is that both the offences of murder of Ukabhai and the robbery formed part of the same transaction.
11.1 With this background, now, in absence of any direct evidence, other circumstances need to be considered. Rajkot police upon receiving information started investigation after registering the offence in the nature of preparing Inquest Panchnama, Panchnama of the place of offence, etc. On the same day, i.e., on 10th June, 1984, the accused came to be arrested at Wankaner Railway Station under Section 41(1)(d) and independent of the incident at Hira Panna Textiles at Rajkot. Wankaner is a railway station which situate at a distance of about 48 kms., from Rajkot. If evidence of the witness-Fedrik Motilal, Ex. 50, is considered, he was a man on roll of Railway Police at Wankaner. He was keeping a watch at Wankaner Railway Station. He found accused to be loitering at the station in suspicious circumstances and he, therefore, kept a watch over him. He also asked his colleagues to keep watch over the accused. This witness categorically states the circumstances which aroused his suspicion. Accused was wearing dirty clothes, but was carrying an Aristocrat brief-case, black in colour, a costly brand of brief-case. This witness along with his colleagues noticed that the accused had entered the toilet on the railway platform and came out changing fresh clothes and after some time, he again entered the toilet and again changed the clothes to the original dirty clothes. They had found him loitering on the platform for a long time. The train was about to depart and they, therefore, felt the accused moving in suspicious circumstances may board the train and flee away. They, therefore, apprehended him initially asking for a ticket. They found that he did not have a ticket and, therefore, he was taken to the Ticket Checker, who charged him Rs. 15/- for the excess fare and penalty. The accused also admits to have been apprehended by police and having been charged excess fare and penalty to the tune of Rs. 15/- for travelling without ticket, but he denies the possession of the brief-case. The receipt issued by the Ticket Checker is brought on record. It is at Ex. 40, wherein total amount of Rs. 15/- is charged for journey from Rajkot to Wankaner. An endorsement is also found that this man was apprehended by Railway Police, Wankaner. The accused is then arrested under Section 41(1)(d) of the Code of Criminal Procedure. A Panchnama is drawn about the seizure of muddamal found in his possession. This Panchnama is also brought on record. The Panchas have supported the prosecution version. If deposition of Fedrik Motilal, Ex. 50, is seen, he states that he had called Ramesh Karsandas and Manibhai Ravjibhai so as to act as Panchas. The brief-case was a black Aristocrat brand brief and contained two keys, some printed envelopes of Hira Panna Textiles and some pieces of cloth. There were Rs. 1,760/- in the brief-case in denomination of currency notes of 100, 50, 20, 10 and 5. There was also a pant to be found from the briefcase besides a towel, napkin, banian, tooth paste, leather belt and a diary. This witness states that, therefore, he recorded the statement of the accused. Then he despatched the accused along with muddamal and other papers to Surendranagar Police Station along with Police Constables Narsing and Ishwarji by train at 20-30 hours. The deposition of Fedrik Motilal, Ex. 50, gets corroboration from deposition of Sadashiv Sakharam, at Ex. 62 and he states that he was working at Surendranagar Police Station from 20 hours of 10th June, 1984 to 8 hours of 11th June, 1984, when at 1-15 hours of 11th June, 1984, Constables Ishwarji and Narsing brought the accused along with muddamal to him. Fedrik Motilal also states that he had sent a telegram to Rajkot "B" Division Police Station at about 10-30 a.m., on the next day, i.e., on 11th June, 1984. Copy of that telegram is produced at Ex. 55.
11.2 Panch-Manibhai Ravjibhai, Ex. 64, states that he was called by Wankaner Railway Police as a Panch where accused was present. He gave his name as Mahendrakumar Harjibhai and he had a black brief-case of Aristocrat brand with him. Then he describes the contents of the brief-case, which includes 4 gift cards bearing rubber stamp of Hira Panna Textiles, printed envelopes of Hira Panna Textiles, two keys, sample clothes, pants, towel, tooth brush, soap and Rs. 1,760/-, etc., which were all noted in the Panchnama drawn at the time. She (sic.) states that other Panch-Ramesh was already present when he went there. Panchnama was drawn and they both had signed the Panchnama and the Panchnama is brought on record at Ex. 47.
11.3 Panchnama Ex. 47, if perused, speaks of recovery of brief-case containing all the above articles from the accused.
12. The sum and substance of the above circumstances is that, on 10th June, 1984, in the evening the accused was apprehended at Wankaner. He was found to be in possession of a black brief-case. This factum is established through the deposition of Panch Manilal Ravji, Police Constables Fedrik and Narsing. This factum is doubted by the trial Court for the reason that Panch-Manilal cannot be believed because his father runs a stall at the Wankaner Railway Station and that Narsing Naika, Ex. 73, has admitted that, in his police statement, he had not stated that gift cards, pieces of paper containing account, envelops and keys were found from the brief-case. However, the witness clarifies that he has stated that Rs. 1,760/-, pants, underwear, toilet soap, Colgate, brush, etc., were found from the briefcase. In our opinion, this was a clear error on the part of the trial Court in not believing this evidence. Non-mention of a minute detail in a police statement by one of the witnesses is not such a defect which would hit at the root of the prosecution case. It is to be considered that a Panchnama was drawn, the accused was apprehended and forwarded to the police station along with muddamal with a forwarding note as well as muddamal list, which are produced on record, at Ex. 54. Forwarding report is at Ex. 56, which clearly indicates that these articles were recovered from the accused. The inference, therefore, drawn by trial Court that no prudent man would continue to possess such articles for a long was not justified or legally proper. Likewise, inference that because the bag contained keys of the cupboard and because the drawers of the table were searched by the culprit, either the bag did not contain keys or the culprit did not search the table drawer and, therefore, the prosecution story is doubtful, was also erroneous and based on surmises and conjectures. It is to be considered that accused admits to have been apprehended by police, he also admits to have been fined Rs. 15/-, but he only denies the possession of a brief-case, a fact which stands properly established, as discussed above, with the help of such evidence. Mere fact that Panch-Manilal's father runs a stall at the railway station cannot render him unbelievable when he has stood the test of cross-examination unshaken and thus, in our opinion, the trial Court was in error in not accepting this material circumstance against the accused.
13. Another aspect that requires to be considered is that from the brief-case, a jeans pant was found which was allegedly sold to the accused by witness-Himatlal, Ex. 42. This witness states that at about 12-30 p.m., the accused came to his stall which is near Wankaner Railway Station. He was wearing a chocolate coloured pant and a bush-shirt with green lining. His clothes were dirty. He identifies the accused and states that the accused then told him that he is salesman of incensed sticks, he has only one pair of clothes which have gone dirty and, therefore, he wants to have another pair of clothes. He wanted a pant and then after taking measurement, he showed to him a blue coloured jeans, which the accused purchased for Rs. 50/-. The accused also showed to him banian, towel, napkin, etc., purchased by him from other place from his bag (Theli - a carry-bag normally made of cloth popular in the region). The accused also told him that he was proceeding to Gondal and inquired if any train to Gondal was available. He identifies muddamal article No. 19, which is the jeans recovered from the accused at the railway station from the brief-case. This witness is not believed because during cross-examination, he stated that many customers had purchased from him between the time of purchase by the accused and recording of his (witness's) statement by the police and that he has no other special identification mark to identify that jeans. Here again, in our opinion, there is no reason to disbelieve this independent witness. He may be having many customers, but a business man can normally be expected to identify his customer within few days and, therefore, unless some other material aspects are shown to doubt the veracity of the witness, the deposition of such witness could not have been thrown away only on such count.
14. After the accused was forwarded to Surendranagar Police, a telegram was sent to Rajkot "B" Division Police. The accused was taken in custody by Rajkot police with the help of a transfer warrant, thereafter, during the course of investigation, he has voluntarily discovered the leg of a wooden cot which was used by him in commission of the offence. A Panchnama in this regard was drawn at Ex. 37, which is proved to deposition of witness-Mukesh Vasudev Sindhi. Along with this, there is evidence of Medical Officer, at Ex. 9, who states that injuries found on head of the deceased were possible with muddamal article No. 29, which is the leg of a wooden cot, which was discovered by the accused.
15. One more aspect that required consideration of the trial Court was that although the accused had taken leave from the employer for going to his home town for his own betrothal and though he had not reported thereafter, he was found to be in the vicinity of the place of offence in the early morning hours of 10th June, 1984. This factum is established by witness-Abdul, Ex. 38. He states that he runs a tea hotel opposite railway station. On 10-6-1984, at about 5-30 a.m., a boy came to his hotel for taking tea. He asked for biscuits. He stated that he had only glucose biscuits with him and, therefore, the boy bought from him a packet of biscuits and a cup of tea. That boy was later on identified by this witness as the accused. He states that the accused had with him a black attache. During cross-examination, he has admitted that about 1,000 to 1,500 customers come to his hotel in a day and, therefore, the trial Court disbelieved this witness. It could not have been overlooked by the trial Court that the accused visited the hotel of this witness at earlier morning hours when there is little rush. Through this witness, therefore, the prosecution has been able to bring on record the fact that the accused was found in the proximate vicinity of the place of offence around the time when the incident occurred.
16. The trial Court has not accepted the prosecution story that injuries were caused with the help of the leg of the wooden cot for the reason that deceased was found to be lying resting his head on the shirt and his body was covered with a cloth, including the head, which indicates that there was no resistance from the deceased. According to the trial Court, this could not have happened when three blows were given on the head of the deceased. There should have been some indications to show some scuffle that must have taken place at the time of the incident. In our opinion, if the injuries are considered, it appears that they are on one side of the head, they are all serious in nature and sufficient to cause death. It is quite possible that the deceased, who was assailed was knocked out by the first blow and, therefore, there was no scope for any resistance from him. The remaining two blows may have been subsequently given to make sure that he does not resist. It is only in this circumstance that it is possible that there is no indication of any scuffle. The blows were given in such a fashion that there was left no chance for any opposition or scuffle. Having regard to the nature and seat of injuries, it could not have been held by the trial Court that the assailant could not have caused the injuries with the help of that leg of wooden cot because there was no indication of any scuffle. After all the incident has occurred, it has occurred in the manner in which it appears to have occurred and, therefore, the only possibility is that the deceased was knocked out by the very first blow while he was sleeping with his head covered with a cloth. This also explains absence of blood marks on the leg of the wooden cot. In our opinion, therefore, there was an error on the part of the trial Court in drawing an inference against the prosecution on this count.
17. It will also be worthwhile to note that the trial Court's observation that in such circumstances, it would have been easier for the assailant to cause death of the deceased-Ukabhai by strangulation, was a journey beyond record of the case and based on inference on conjectures. Similarly, the observation that because steel rods etc., were lying beside the wooden leg of the cot, an assailant would have preferred to use such weapon is also based on conjecture, overlooking the fact that on such occasion, people do not spend time for making thoughtful selection of weapon.
18. Much importance is attached by the trial Court to a noting in the diary seized from the accused. The noting is as under:
10-6-1994.
...
3.00 Wankaner T. It was inferred that this noting indicated that the person possessing this diary had purchased a ticket for Wankaner. And because accused was found to be without ticket, the brief-case where from the diary was found must not have been recovered from him as alleged.
18.1 In our opinion, it was an error on the part of the trial Court to interpret the noting in such a manner in total absence of slightest material in support. On the contrary, if entire evidence is closely perused, the receipt of Rs. 15/- indicates that the accused was charged excess fare and penalty for journey from Rajkot to Wankaner by the Ticket Collector when he was brought by Wankaner Railway Police. These aspects also emerge from oral evidence of witness-Fedrik Motilal and witness Bharatkumar Kisandas, the Railway Police Jamadar and the Ticket Checker respectively. Despite this, the accused in his statement under Section 313 of the Code of Criminal Procedure, at Ex. 78, has taken a false stand to the effect that he was going to Rajkot. If that were so, he would have been charged for journey to Rajkot from whichever place he was coming and not from Rajkot to Wankaner.
19. Certain other aspects and circumstances also call for consideration. Before Himatlal, the vendor of the jeans, the accused disclosed a false vocation of his, namely, that he is was a salesman of incensed sticks. He also stated that he was planning to go to Gondal. This conduct of the accused indicates that he was trying to hide his real identity.
20. Another circumstance is that the accused belongs to a working class with meagre economic resources. This fact is established from the deposition of his employer. The trial Court has not accepted that version of the employer and has placed reliance on the wage card of the accused produced by the employer. If it is carefully perused, it can be seen that the same relates to the month of March 1984 and not June 1984 and during March, the accused may have worked overtime, but his overall condition is reflected from the fact that he was running an account with a Pan vendor. Even if these aspects are ignored, deposition of witness-Fedrik Motilal reflects that the overall condition of the accused was poor and that itself was the cause which aroused suspicion in his mind on seeing the accused was poorly clad in dirty clothes but possessing an expensive Aristocrat brief-case.
21. The accused had to borrow Rs. 100/- from his employer for going to his home town. Against that, he is found to be in possession of Rs. 1,760/- when he was apprehended and no explanation for this possession has come forward. On the contrary, he is denying totally the possession of the brief-case. As a result, no explanation is tendered by the accused in this regard. There is no valid reason to accept his version that he was going to Rajkot and did not have the said brief-case with him in the face of independent and cogent evidence of its recovery from him. In such circumstances, when the case against the accused is based on circumstantial evidence, taking up a false defence and denial of possession itself is an incriminating circumstances, as has been held in the case of Earabhadrappa v. State of Karnataka . The accused has taken up false defence not only in the nature of denial of possession of the brief-case and other articles but has also taken up a false defence that he was going to Rajkot by train and when he got down at Wankaner Railway Station for drinking water, he was caught by the Ticket Checker and charged Rs. 15/- for travelling without ticket and that while he was re-boarding the train, police caught him (Ex. 78). The falsity of the defence is revealed through the fact that the voucher of Rs. 15/-indicates that he was charged for journey from Rajkot to Wankaner. If he was to go to Rajkot, as stated by him, he would have been charged the fare upto Rajkot. Likewise, the defence that he was caught by police while he was re-boarding the train for going to Rajkot is also falsified by the same voucher which indicates that he was brought before the Ticket Checker by Wankaner Railway Police as it transpires from the depositions of witness-Fedrik and witness-Bharatkumar Kishandas, the Ticket Checker, Ex. 39. All these factors go to add up to the circumstances against the accused and strengthen the links of the chain.
22. Another strong circumstance that leads us to conclude and to support our conclusion is the fact that Fedrik Motilal had sent a telegram to Rajkot "B" Division Police Station, a copy of which is produced at Ex. 74, which reads thus:
Accused of Pagi murder case of Hira Panna Textiles, Rajkot, Ranchhodnagar Society, of Patel Uka Mavji, 70 years is arrested by me on 10th June, 1984 at 17-30 hours.
It is in deposition of witness-Fedrik Motilal that before being sent to Surendranagar, the accused was interrogated by him. Thereafter, he had sent this telegram. This is a strong piece of circumstance which also points at the guilt of the accused.
23. The case before us is of a peculiar nature, where there is no direct evidence, but cogent circumstances are shown by the prosecution to connect the accused with the offence. It is to be examined whether the circumstances formed an unbroken chain to come to the conclusion that it was the accused and accused alone who could have committed the offence. The recovery of brief-case from the accused containing some stationery of Hira Panna Textiles may connect him with the offence of theft prima facie, but it is to be examined whether it would connect him with the offence of murder of watchman-Ukabhai as well.
24.1 When the accused is proved to be in recent possession of stolen property, the possession of which is not properly explained, the circumstance is strong enough to connect him with the offence of theft or robbery as the case may be.
24.2 If the offence of murder and robbery are found to have been committed in one transaction and the accused is found to be in recent unexplained possession of stolen property, the necessary presumption would be that he committed the murder and the robbery both, as envisaged under Section 114 of the Indian Evidence Act. (See Baiji v. State of Madhya Pradesh .
24.3 The fact that the accused was found in the vicinity of the place of offence at a time very proximate to the time of the offence; the fact that the accused was arrested with stolen property, the possession of which is not explained by him; and the fact that both the offences, viz., murder of Ukabhai and robbery from Hira Panna Textiles were committed in the same transaction as discussed above leave no room for any doubt about the connection of the accused with both the offences. The taking up of a false defence by the accused is an additional circumstance which goes against the accused to connect him with the offences.
25. In view of above, we are of the opinion that the trial Court has committed a patent and palpable error in evaluating the evidence and not appreciating the importance of the above important circumstances which clearly connect the accused with the offences levelled against him and firmly establish his guilt. We, therefore, hold that the accused-Mahendra Harjivan Luhar, respondent herein, was guilty of committing murder of Ukabhai Mavjibhai Pagi and was also guilty of committing robbery in Hira Panna Textiles of Rajkot on the date and at the time as alleged by the prosecution.
26. In the result, this appeal is allowed. The judgment and order passed by the learned Additional Sessions Judge, Rajkot, in Sessions Case No. 34 of the 1984 is hereby set aside and the respondent-accused is convicted for the offences under Sections 302, 459 and 397 of the Indian Penal Code.
27. The accused-respondent is not before us. He is represented by learned Advocate, Mr. P. M. Vyas. Earlier bailable warrant was issued against him to the tune of Rs. 2,000/-, which was duly executed, but he is not present. We, therefore, direct that a non-bailable warrant be issued against him and he be brought before us on 28th July, 1998, so that he can be heard on the question of sentence.
Respondent-accused is brought before us by police pursuant to the non-bailable warrant issued by us.
28. We have heard the learned Additional Public Prosecutor, Mr. D. N. Patel, the respondent-accused and his learned Advocate, Mr. P. M. Vyas on sentence. Mr. Vyas urged that this is not a rarest of rare case where capital punishment may be imposed and as the respondent comes from a poor family, mercy may be shown on him.
29. The accused, initially, tried to urge that he is not the real culprit. He first stated that it was his brother Ratilal who had committed the offence and had falsely given his (respondent's) name. To ascertain the correctness of this submission, we perused the record and the notices of the acquittal appeal which were sent in the respondent's name and upon perusal of the record of this High Court, it transpires that, while the acquittal appeal was admitted, bailable warrant in the sum of Rs. 2,000/- was issued against him. We, therefore, confronted him with the record showing the notices of the acquittal appeal were served on him and the warrant executed and his statement seeking that he should be given "appointed" Advocate to defend him, which bear his signatures and which were forwarded to the High Court by the Sessions Court. He, on being confronted with this record, admitted that he was served with the notice and the statement was given by him and that they bear his signatures. He now admits that he is the person who was tried. We, therefore, find no substance in his initial false suggestion that he is not the real culprit.
Learned Additional Public Prosecutor submitted that the respondent is found to have been involved in serious offences and deterrent punishment may be imposed.
30. We have considered all relevant aspects. We find that case cannot be considered as a rarest of rare case meriting death penalty. The respondent is, therefore, sentenced to undergo rigorous imprisonment for life for the offence of murder of Ukabhai Mavjibhai under Section 302 of the Indian Penal Code and to pay a fine of Rs. 2,000/-, in default, to undergo further rigorous imprisonment for two months.
The accused is ordered to undergo rigorous imprisonment for 10 years for the offence under Section 397 of the Indian Penal Code and to pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for 15 days.
31. In view of the above sentences, we impose no separate sentence under Section 459 of the Indian Penal Code. Both the substantial sentences shall run currently.
The accused be taken in custody forthwith.
The appeal is, accordingly, allowed.