Gujarat High Court
Lakhman Kesur Kandoria (Ahir) vs State Of ... on 30 January, 2015
Author: M.R.Shah
Bench: M.R. Shah, R.D.Kothari
R/CR.A/1481/2007 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1481 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
================================================================
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 ?
================================================================
LAKHMAN KESUR KANDORIA (AHIR)....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance:
MADANSINGH O BAROD, ADVOCATE for the Appellant(s) No. 1
MS NISHA THAKORE, APP for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 30/01/2015
Page 1 of 18
R/CR.A/1481/2007 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.D.KOTHARI)
1. This is somewhat unusual case. On 19.05.1994, three homicidal death took place. The appellant is charged for that. The facts of the case may be stated at once, but before that we may observe that notwithstanding bulky record made by the prosecution and very lengthy judgment under appeal by trial Court, big question mark remains so far as case against the appellant is concerned.
2. The facts in brief are as under : 2.1. The present appeal arises out of the common judgment delivered in two Sessions Cases i.e. Sessions Case No. 127 of 2003 and Sessions Case No. 128 of 2003. Those two cases, in turn, arise out of two complaints registered with Kalyanpur Police Station, District : Jamnagar. These two complaints are C.R. No. I61 of 1994 and C.R. No. I62 of 1994. The former complaint is by one Bhoga Lakha for homicidal death of Markhibhai and later complaint is by one Jetha Savdas. Jetha Savdas is the father of other two deceased. His two sons i.e. Hamir Jetha and Kana Jetha have met with homicidal death. Bogha Lakha is a relative - in distant relation, of the deceased Markhibhai. It is the case of the prosecution that the present appellant has lured the deceased persons by saying that he would give gold at a cheaper rate. Criminal trial against the sole Page 2 of 18 R/CR.A/1481/2007 CAV JUDGMENT appellant herein has resulted in acquittal so far as the death of Hamir Jetha and Kana Jetha is concerned, however, the case of the prosecution qua Markhibhai was believed by the learned trial Court. The modus operandi of the appellant as alleged is thus : 2.2. On late evening on 19.05.1994, these three deceased, the appellant and the complainant all were at the store room of Water Supply Board of Village Bhatia, Taluka : Kalyanpur, District : Jamnagar. The complainant - Bogha Lakha is a Watchman at the store room; Markhibhai had a bag with him containing cash. The said bag was kept in a room of this store room. It is the case of prosecution that these three deceased had gathered there i.e. at the compound of the store room, because the appellant had said to them that the appellant would be giving gold at a cheaper rate. As the story of the prosecution goes, first Kana Jetha had gone from the store room with the present appellant to collect the "goods" and then after half an hour, the appellant came back. He was breathing heavily and perspiring profusely. He said that Kana Jetha is outside. Saying so, he asked the other two i.e. Markhibhai and Hamir Jetha to accompany him. Accordingly, they had gone with him. Then after another half an hour, Markhibhai came at the store room. The complainant was there. He asked the complainant whether the other two persons had come or not. The complainant says no. Markhibhai at that time had asked the complainant to take the present appellant with him for dinner when the present Page 3 of 18 R/CR.A/1481/2007 CAV JUDGMENT appellant and other come. After such a talk, Markhibhai left. Then after another half an hour or so, the present appellant came. This time also, it is alleged that the appellant was perspiring profusely. The appellant had come alone. On being asked by the complainant whether he would like to have a dinner, the appellant suggested to have breakfast. After taking breakfast at a highway hotel, they came back. The appellant had said to have asked the complainant that they i.e. the complainant and the appellant may go and see where others had gone. To this the complainant says no. Then Devayat - brother of Markhibhai came in a jeep at the store room and told to the complainant that Markhibhai is attacked by someone. He asked the complainant to accompany him in the Jeep. The complainant goes with him. Then the complainant says to Devayat that the appellant is there at the store room. On such say of the complainant, it is alleged that Devayat and the complainant came back. They found that the appellant was not there. It is alleged that he had ran away. Then as they came on road, another Jeep came there, in which Markhibhai was lying unconscious. He was taken to Kalyanpur Government Hospital. The Doctor declared him dead. Later on, Bogha Lakha had filed a complaint for homicidal death of Markhibhai. The complaint is filed against Kana Jetha, Hamir Jetha and the present appellant. 2.3. As to the another complaint, from which another Sessions case had arisen, the complainant says that his son Hamir Jetha Page 4 of 18 R/CR.A/1481/2007 CAV JUDGMENT had gone on motor bike to deliver milk. He did not returned till late night. Two Police Constables came and informed the complainant that the dead body of Hamir Jetha is found. The dead body was sent to PM. It appears that Kana Jetha was residing separately and on receiving news of his death later on, father has given formal intimation of his death of the police. It also appears that trial had proceeded on the footing that father has lodged the complaint for homicidal death of his two sons. The complainant claims that this may have happened on account of the dispute about the unaccounted cash transaction. He had given the name of Markhibhai, his brother Devayat and Bogha Lakha as suspect persons.
2.4. At the end of investigation - Police had filed charge sheet only against the present appellant.
3. A common charge was framed (Exhibit16) against the present appellant in respect of two Sessions Cases. Before the Sessions Court, the prosecution has examined 67 witnesses. Of these 21 witnesses have turned hostile and they do not support the case of the prosecution. Of all hostile witnesses, majority are panchas, however, the complainant i.e. Jetha Savdas and his family members have also turned hostile and they do not support the case of the prosecution. At the end of fairly elaborate judgment, believing the case against the present appellant for the death of Markhibhai, the trial Court based its conclusion of Page 5 of 18 R/CR.A/1481/2007 CAV JUDGMENT guilt by relying on the following points.
• The deceased was last seen with the appellant and the evidence of last seen together has come on record; • Dead body of the deceased was duly identified; • behaviour/ conduct of the accused after commission of crime is very much suspicious and the accused has not given satisfactory explanation for this.
• The deceased had a huge amount of Rs.1,30,000/ with him and the same was recovered. It is material circumstance pointing towards motive.
• It is proved that accused had motive to commit offence. • It is proved that the accused had committed present offence and that the accused had criminal intent and guilty mind. That reading Sections 8 and 10 read with Section 114 of the Indian Evidence Act, presumption against the accused in this regard is possible to draw. • The medical evidence supports the case of the prosecution.
• FSL report does support the case of the prosecution.
4. Heard the learned advocates for the respective parties. The learned advocate appearing on behalf of the appellant has referred the relevant evidence on record and has submitted that the learned trial Court has submitted that the learned trial Court has committed serious error in convicting the present appellant. Attention was drawn to the evidence of the complainant - Bogha Lakha, particularly to his crossexamination. Page 6 of 18 R/CR.A/1481/2007 CAV JUDGMENT
5. On the other hand, the learned APP has supported the judgment under appeal and has submitted that the learned trial Court after considering the evidence on record has rightly held the appellant guilty. Learned APP Ms. Nisha Thakore, has submitted brief written submissions also. In the written submissions, emphasis was placed on the theory of last seen together, motive, medical evidence and the conduct of the accused. On the last referred aspect, i.e. conduct of the accused, the fact of absconding was emphasized by the learned APP. It was submitted that the conduct of the accused shows guilty mind of the accused. In the circumstance, this Court should not interfere with the conclusion recorded by the learned trial Court. The learned APP has also submitted brief note of evidence led by the prosecution.
6. The case is essentially based on circumstantial evidence. How to consider the case based on circumstantial evidence? Its principles are by now fairly well known. Two oftquoted principles are; each link or the connecting circumstance in the chain should be proved and secondly, all these circumstances should clearly mismatch with the innocence of the accused. 6.1. For appreciating case based on circumstantial evidence, following principle, interalia, so far as facts of this case is concerned can be culled out as well settled principles; Page 7 of 18 R/CR.A/1481/2007 CAV JUDGMENT
• All incriminating circumstances should be incompatible with the innocence of the accused or guilt of other person (Hakamsingh v. The State of Rajasthan AIR 1977 SC 1063; Eradu & Ors., v.
State of Hyderabad AIR 1956 SC 316;
Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State of U.P v. Sukhbasi & Ors., AIR 1985 SC 1224, Balvinder 's case AIR 1987 SC 350, Ashokkumar Chattrejee v. State of M.P. AIR 1989 SC 1890) • In order to draw conclusion of guilt, all the circumstances should complete in the sense that there should be no gap left in the chain of evidence (C. Changa Reddy & Ors., v. State of A.P. 1996(10) SCC 193).
• If the evidence relied on is reasonably capable of two inferences, one in favour of the accused may be accepted (State of UP v. Ashokkumar Srivastava 1992 SCC 86).
• Infirmity or lacuna in the case of prosecution cannot be cured by false defence or false plea (Shard Page 8 of 18 R/CR.A/1481/2007 CAV JUDGMENT Biridhichand Sarda v. State of Maharashtra AIR 1984 SC 1622).
6.2. In the present case, one important link alleged to connect the present appellant with the crime is the say of the prosecution that the appellant was last seen together with each of these three deceased. On this point, in support of their case, the prosecution has examined the complainant (PW24), his brother (PW 26); wife of the deceased (PW 27), retired Head Constable (PW 29), one truck cleaner (PW 33) and one Matuben (PW 25).
6.3. It may be stated at once that truly speaking barring the complainant and PW29(?), no other witnesses had seen - not to speak of last seen the accused with any of the deceased persons. As observed above, the case of last seen together is believed by the learned trial Court. In that regard, reliance was placed on the evidence of Matuben (PW 25). The evidence of the complainant is believed by the learned trial Court and has also held that the say of this witness is supported by the say of the other witnesses.
7. The conclusion recorded by the learned trial Court on the theory of last seen together is clearly erroneous. The case of the prosecution is not possible to believe. On the facts, this theory is difficult to accept. It may be bear in mind that we are required to consider the case of homicidal death of Markhibhai only. The Page 9 of 18 R/CR.A/1481/2007 CAV JUDGMENT State Government has not preferred any appeal against acquittal qua death of other two persons. Let us consider the case against Markhibhai. It may be noted that deceased Markhibhai was with Hamir Jetha, the complainant and the present appellant. Before he left, the complainant and Hamir Jetha were also with him beside the present appellant. It may be noted that the present appellant was one of the suspect in the present case. In another complaint, filed by Jetha Savdas, possible the cause of death is stated by the father of the victim. According to him, his two sons were killed because of dispute in respect of unaccounted money. In that dispute, complainant Bogha Lakha is not unknown or third party. He is named as one of the suspected accused. He is not just watchman at store room only. In the facts and circumstances of the case it is not unlikely that the real culprit may not be the present appellant. This possibility considerably weakens the theory of last seen together.
7.1. It may also be noted that even when the case of last seen together has substance, it does require corroboration from other evidence. (Ram Reddy Rajesh Khanna Reddy & Ors., v. State of Andhra Pradesh AIR 2006 SC 1656) The degree of corroboration depends upon the facts and circumstances of each case. In the present case, Bogha Lakha may not be that much innocent as the reading of his complaint gives impression. It may be bear in mind that at the relevant time and at the relevant place all the concerned i.e. Bogha Lakha, deceased Markhibhai, Page 10 of 18 R/CR.A/1481/2007 CAV JUDGMENT Hamir Jetha, Kana Jetha, present appellant and also Devayat were there. This is one aspect. Going with the case of the prosecution and accepting its say as presented by it, it may be bear in mind that Markhibhai had come back alone after leaving with Hamir Jetha and the present appellant. Returning of Markhibhai is important fact to appreciate the theory of last seen together. It is the case of the prosecution that on returning after leaving with the present appellant and Hamir Jetha, Markhibhai stated couple of things to the complainant. This saying of Markhibhai is possible to read in favour of the present appellant. 7.2. He had asked the complainant whether Hamir Jetha and the appellant had in the meanwhile came or not? This say of the Markhibhai implied many things. Different possible answers to this question of Markhibhai may not be gone into. Suffice it to say that one of the possibility is that Markhibhai may not be with these two persons after leaving the Water Supply Board store room with them. This possibility demands explanation / answer qua that, to successfully apply 'last seen together' theory. Secondly, he asked the complainant to arrange for dinner for the appellant at the lodge. After saying so to the complainant, when Markhibhai had left the complainant, he was alone. Markhibhai was alone when he left the complainant. The evidence of complainant Bogha Lakha, so far as this theory is concerned, therefore, cannot help much to the prosecution. Page 11 of 18 R/CR.A/1481/2007 CAV JUDGMENT 7.3. As to the evidence of other witnesses in this regard PW29 says that he is a retired Head Constable. He says that he had retired around the time of the incident. It is his say that on the date of the incident at about 5:00 p.m., he had gone to one hotel at Village Bhatia to have a tea. At the said hotel, Markhibhai and the appellant were also there. That Markhibhai had offered him a tea. However, he had refused the offer saying that he had taken the tea. Then on the next day, he had heard from the market that Markhibhai is killed. In his cross, he says that after the retirement, he had stayed for about six months at Village Bhatia implying thereby that, that is how he knew Markhibhai and the appellant. The evidence of PW29 is not at all inspiring confidence. It may also be noted that going with the say of the witness what he says is, he had seen accused with the deceased at 5;00 p.m. Seeing at 5:00 p.m., is of no consequence or importance qua the point in issue since thereafter Markhibhai was with Hamir Jetha (and not with appellant) and they met the complainant after 8:00 p.m., at Water Supply Room and thereafter also Markhibhai had met the complainant as referred above. Neither the evidence of PW29 nor the evidence of other witnesses has any substance. The evidence of witness Matuben (PW25) is almost absurd. The evidence of last seen together theory is not possible to accept.
7.4. Another important link is evidence of the weapon. It is the say of the prosecution that iron bar is used for commission of Page 12 of 18 R/CR.A/1481/2007 CAV JUDGMENT the three homicidal death. This iron bar is produced by the complainant - Bogha Lakha. The evidence of recovery of weapon alleged to have been used in commission of crime is not at all in the nature of inspiring confidence. In Mahmood v. State of U.P. AIR 1976 SC 69, main evidence against the appellant was finger print of the appellant on that weapon i.e. 'gandsa'. It was also the case of circumstantial evidence. Setting aside the order of conviction and sentence of two Courts for the offences under Section 300 it has inter alia held that obtaining finger print of the appellant on 'gandsa' is not satisfactory. The present case stands on better footing, as neither iron bar is recovered from the present appellant nor it is produced by him, through discovery panchnama under Section 27 of the Indian Evidence Act nor the Investigating Officer has taken care to obtain the finger print on the iron bar. The case of recovery of the iron bar by the Investigating Officer may be read with the say of the complainant in his cross examination wherein he says that when the present appellant had come he had neither bag nor any weapon was with him when he came (para 35). It may also be noted that the appellant while leaving the store room after he had a breakfast with the complainant on a highway hotel, he had not only left money bag there but also had left the iron bar. Assuming that the money bag kept in the locked room, it is highly unlikely that the appellant would leave the place, leaving not only money bag, but iron bar also which is used in Page 13 of 18 R/CR.A/1481/2007 CAV JUDGMENT commission of homicidal death of three persons. In the facts and circumstances of the case, the evidence of recovery of weapon is also not possible to accept as evidence that links the present appellant with the crime alleged.
8. Lastly, reference may be made to motive. The case of the prosecution is that the appellant had lured three deceased persons by offering gold at a cheaper rate. This say is believed by the learned trial Court. Accepting the say of the prosecution on this - in absence of any reliable material on record , it has held that the appellant had motive.
9. How to appreciate motive ? It hardly needs to be said that, motive though not sine qua non to bring home offence of homicidal death - it is important and relevant. It helps to complete the chain. It is important to note that inference of its existence is to be drawn from the reliable evidence on record. Hearsay evidence is hazardous and impermissible. 9.1. Following binding principles are possible to read in favour of the appellant.
• It is material when the case is based on circumstantial evidence (Majorsingh & Anr., v. State of Punjab 2006 (10) SCC 499 and Ujagarsingh v. State of Punjab 2008 Cri. L.J. 808.
Page 14 of 18 R/CR.A/1481/2007 CAV JUDGMENT • When the prosecution puts forward specific case as to motive for the crime, evidence regarding the same has got to be considered in order to judge the probabilities, (Smt. Omwati etc., v. Mahendrasingh & Ors., case AIR 1998 SC 249). • It is well settled that motive for crime is satisfactory circumstance of corroboration when there is evidence to prove guilt of accused persons but it cannot fill up the lacuna in the evidence, (Smt. Omwati etc., v. Mahendrasingh & Ors., case AIR 1998 SC 249).
• Proof of motive goes long way to tilt the scale against the accused which provides for foundational material to connect the chain of circumstances ... (Bhupindersingh v. State of Punjab AIR 1988 SC 1011).
• Motive may conceivably furnish necessary corroboration, but there should be independent evidence to that effect (Dagdu' & Ors., etc., v. State of Maharashtra AIR 1977 SC 1579) • When there are other circumstances to create doubt about the veracity of the prosecution case, then absence of motive or failure to prove motive assumes importance (Dhananjay Shanker Shetty v. State of Maharashtra AIR 2002 SC Page 15 of 18 R/CR.A/1481/2007 CAV JUDGMENT 2787).
10. How the learned trial Court has accepted that the motive is established is puzzling. Either of the complainant does not say in their complaints about the offering of gold at cheaper rate by the appellant as possible cause for occurrence. While Bogha Lakha is silent about this, the father in the another complaint - as observed above says that there may be dispute about transaction of unaccounted money and the same may be the cause for the occurrence. Notwithstanding such say and stand of complainants in the complaint, charge is framed alleging that appellant had offered gold at a cheaper rate to the deceased person. Further, in contrast to assertion made in the charge, there is virtually no evidence in this regard. From the evidence that Markhibhai had a cash bag with him at that time, prosecution wants us to infer the story of offering gold at a cheaper rate. These two facts i.e. having cash bag with the deceased at the time of incident and offering gold at a cheaper rate by the appellant are two distinct facts. The fact of Markhibhai having cash bag at that time does not mean .... ... prosecution is required to establish - that it was because appellant had offered gold at a cheaper rate. The father of the deceased another complainant - has in fact turned hostile, so also the other near relatives of these two deceased. In absence of any evidence, the say of the prosecution on this ought not to have been accepted by the learned trial Court. In fact, the Page 16 of 18 R/CR.A/1481/2007 CAV JUDGMENT learned trial Court in its judgment does record that there is no evidence on record about the meeting between the present appellant and the deceased prior to the date of the incident (paragraph 35). In other words, prior meeting of all these concerned and talk of offering gold at cheaper rate by the appellant at that time ought to have been brought on record. No such evidence has been brought on record The prosecution has failed to establish motive also.
11. One more aspect. The conduct of the appellant is not consistent with the story of the prosecution qua motive, in the sense that the reading of evidence does not give impression that the appellant ever had "eye" over the money bag. It is for that purpose - says prosecution he had committed such ghastly acts. He had opportunity to ask for the money bag and to have that bag with him. Not that he had not get any chance for that purpose. It was within his reach. It may also be noted that the appellant has no enmity with any of the deceased. If it was not for settling the score, or for such like reason and sole intention of the appellant was to dupe each of the deceased then it is improbable that he would left behind the bag of cash and take away the lives of three and then ran away. Cashless case against the appellant as emerges at the end of trial, mars motive theory alleged by the prosecution. The case of motive has many gaps.
12. In one of the PM Note (Exhibit160) i.e. PM Note of Kana Page 17 of 18 R/CR.A/1481/2007 CAV JUDGMENT Jetha against Column No. 19, which relates to the question whether the injuries were antemortem or not ? The Doctor has opined:"Definitely the injuries are antemortem in nature" It is indeed sad that the crime involving three homicidal death has gone undetected. The mystery has remained unresolved. Either true story has not come on record or the Police was clueless. We may take the liberty to observe that former possibility is more likely then the later.
13. In view of the above discussion, the case of the prosecution against the present appellant based on circumstantial evidence is not possible to accept. Above referred conclusions recorded by the learned trial Court are clearly erroneous. The common judgment of the learned trial Court in Sessions Case No. 127/2003 and Sessions Case No. 128 of 2003 is hereby quashed and set aside. The appeal is allowed. The appellant is acquitted for the offences for which he is charged. He is on bail, hence, bail bonds stand cancelled.
(M.R.SHAH, J.) (R.D.KOTHARI, J.) phalguni/vipul Page 18 of 18