Bhupendrabhai Thakorbhai Patel vs State of Gujarat

Akil Kureshi, J.—The appellant original accused has challenged the judgment dated 9.12.2010 rendered by the learned Additional Sessions Judge, Bhavnagar, in Special Atrocity Case No. 30/2008. The appellant was charged with offence u/s 302 read with section 201 of the IPC. He was convicted for both the offences. He was sentenced to imprisonment for life for offence u/s 302. For offence u/s 201, he was sentenced to rigorous imprisonment for three years. Briefly stated the prosecution version was that deceased Jesangbhai Nayak was a labour contractor and a labourer himself engaged in the activity of cutting trees. Accused Bhupendrabhai Thakorbhai Patel had called for a group of labourers for cutting trees. The deceased Jesangbhai had come to village Ranipura on 30.1.2008. On 4.2.2008, the accused through his friend Sashikant Maganlal Shah called Jesangbhai under the guise of showing him forest for cutting trees. He was brought in a vehicle near Ankleshwar railway bridge. Late at night on 4.2.2008, the accused assaulted the deceased with deadly weapon with intention of causing death on a walk path near the Golden gate bridge over river Narmada. Thereafter, the dead body was thrown from over the bridge. In the process the body got caught in an iron angle of the bridge. The accused had thus committed offence u/s 302 and 201 of the IPC.

The dead body was spotted by one Farukhbhai on 5.2.2008 who informed this to Aiyub Patel, PW-3, who lodged an FIR before the police station which was produced at exh. 73.

The postmortem of the dead body was carried out by Dr. Binoykumar Taraknath Sharma, PW-10, exh. 112. He had noticed the following injuries in his postmortem report:

i) Incised wound of size 19 cms x 4 cms x upto pharynx between hyoid & thyroid cartilage over neck area. Direction of wound is transverse. Margins clean cut & averted. Reddish brown blood clot present over wound area.

ii) Cut of skin, platysma muscle, strap muscle, thyrohyoid membrane, bilateral sternocleidomastoid muscle, larynx, hypopharynx, bilateral internal and external carotid artery, bilateral internal jugular vein, bilateral external jugular vein, bilateral vagus nerve & bilateral spinal accessory nerve.

iii) Incised wound of size 5 cms x 2 cms x 1 �, cms. Over left palmar area. Margins clean cut and averted. Reddish brown blood clot present.

iv) CLW of size 3 cms x 1 �, cms x �, cm over mid scalp area. Margins abraded & reddish brown blood clot present.

v) CLW of size 3 cms x 1 � cms x � cm over mid scalp area. Margins abraded & reddish brown blood clot present.

vi) Abrasions of different shape & size with blurred margin & reddish brown colour present over following area:-

a) Rt. Cheek area

b) Area just lateral to Rt. Eye

c) Area just below Rt. Knee Jt.

d) Rt. Lower leg (mid part)

3.1. In his opinion, death was due to the injury on important artery and injuries on the neck. He stated that the deceased could have died 24 hours before their postmortem report. The postmortem was carried out between 2 in the afternoon to 8 in the evening of 5.2.2008.

It appears that the dead body was not immediately identified by the relatives of the deceased and therefore, the fact that Jesangbhai was killed on 4.2.2008 did not come to light for sometime. On 28.2.2008, a missing person''s report was lodged before the Umlla police station informing that Jesangbhai Nayak was missing since 3.2.2008. It further appears that from the photograph of the deceased, his wife identified him and that is how the investigation went further trying to ascertain the cause of murder of Jesangbhai.

Sashikant Maganlal Shah, PW-5, exh. 107, was also a resident of village Umlla. He knew accused Bhupendra because he was his tenant some time back. He was introduced to deceased Jesangbhai by the accused. When Jesangbhai came with his labourers, the accused had requested Sashikantbhai to make arrangements for their stay. He had thereupon, arranged for sleeping in the open ground of Christi Mission House. Few days after these labourers arrived, accused informed Sashikantbhai to call the deceased at Jhagadia cross road in the afternoon. As per the witness he had instructed deceased Jesangbhai to reach at the bus stand. When the deceased arrived at the bus stand, he took him to Jhagadia where the accused also met them. They had snacks there. The accused told him that they had to go to Bharuch to see the forest. The witness thereafter, left for visiting a temple before going home. Two or three days later, he received a call from the accused informing him that he should relieve the labourers by paying them Rs. 500/- since he did not have any work for them presently. Along with Gulam Khatri, he therefore, paid the amount to one of the persons. The witness further deposed that two to four days after this incident, the accused came to his shop and asked for borrowing money. He refused since he did not have money. The accused seemed scared. When asked he promised to tell the reason later on. The accused informed the witness that he had a scuffle with the deceased Jesangbhai due to accounts and Jesangbhai had been murdered.

5.1. In the cross examination, he was questioned about picking up Jesangbhai to meet the accused at Jhagadia and why accused should have involved him when he could have called Jesangbhai himself. He clarified that it was 5th or 6th of February 2008, when the accused had come to his shop in a scared condition. He stated that when asked about the reason he promised to tell later but had not stated anything. Though he denied that he owes Rs. 3 lakhs to Bhupendra, he admitted that he had issued three Account Payee cheques of Rs. 1 lakh each to the accused and that he had not paid the said amount to the accused. He however, denied that to escape from his responsibility to return the said amount of Rs. 3 lakh, he had falsely implicated the accused.

One Saniben Jesangbhai Nayak, PW-6, was examined at exh. 108. She deposed that Dahyabhai and accused Bhupendrabhai had come for taking the labourers for labour work. Her husband never returned thereafter. They had tried to look for at the places of the relatives. When the photograph of her husband came in newspaper, her son saw the photograph and identified him. Thereupon she came to know that he had been murdered. They thereupon came to Bharuch where the police showed them the photograph of the husband.

Sankar Raising, PW-7, exh. 109, was one of the labourers in the gang of deceased Jesangbhai. He deposed that he and other labourers had gone with Jesangbhai for labour work to village Umlla. They were taken for work of Bhupendrabhai, the accused. They arrived in a tempo and arrangements were made on an open plot near the road. Two days later, the accused came and promised them to give work. Some two or three days thereafter, the accused himself had come and told them that it will take a couple of days more for the work to start. Thereafter, Sashikantbhai had come to take Jesangbhai telling him that the accused had called him to collect money for their expenses. After Sashikantbhai took Jesangbhai, he never returned.

One Sukhiben Sankarbhai Nayak, PW-9, exh. 111, was also member of the group of labourers in the team of the deceased Jesangbhai. In her brief testimony she mainly stated that two or three days after they arrived in village Umlla, Jesangbhai had gone to Bhupendra for money for expenses. He had never returned thereafter. She had never met Sashikantbhai.

Amrutbhai Nanubhai Vasava, PW-17, exh. 127, had recorded the missing person�s report of Jesangbhai on 28.2.2008. It was reported that he was missing since 3.2.2008.

It appears that as per the prosecution, the accused had shown different places where the deceased was taken and thereafter, assaulted. A panchnama to this effect was prepared which was produced at exh. 78. The panch witness Manoj Maheshchandra Agrawal, PW-4, exh. 74 turned hostile.

The Investigating officer, Dhirajlal Nimavat, PW-18, exh. 128 however, in addition to giving detailed steps taken by him during the course of investigation, also referred to the drawing of the so-called discovery panchnama exh. 78. We would refer to this panchnama at a later stage.

One Hemangi Rasiklal Shah, PW-1, exh. 49, a clinical psychologist was examined to bring on record the lie detection test of the accused carried out during the investigation. She produced at exh. 55 the statement given by the accused and exh. 63, the report of polygraphic test. She opined that from such test, it could be stated that murder had taken place in presence of the accused.

On the basis of such evidence on record, learned counsel Shri Mrudul Barot vehemently contended that the learned Judge committed a serious error in recording the conviction of the accused. According to him, the last seen theory was not established because of the intrinsic discrepancies in the evidence of the witnesses and further due to inaccuracy of the date and time when the accused and the deceased were last seen together. Counsel submitted that in absence of the last seen theory circumstance, there was no evidence to connect the accused with the offence. No recovery or discoveries were made. The panchnama exh. 78 cannot be stated to be one u/s 27 of the Indian Evidence Act. The counsel further submitted that prosecution failed to establish the motive.

On the other hand, learned APP Shri Jani heavily relied the deposition of the witnesses to contend that the accused and the deceased were in contact with each other with respect to tree cutting work. Deceased was called by the accused for settling the accounts after which he was never found. Few days later, his dead body was found from the bridge.

A perusal of the judgment of the learned Judge shows that he relied on the following factors to convict the accused:

a) The last seen theory. According to the learned Judge after Sashikant met the accused with the deceased at Jhagadia, the accused and the deceased went towards the forest. Sashikant went to his house. This was a strong circumstance in favour of the prosecution.

b) The labourers were paid of by the accused through Sashikant a few days later.

c) The panchnama exh. 78 records that the accused had shown various places where the deceased was taken.

d) The report of the polygraphic test conducted by one Hemangi Rasiklal Shah, PW-1.

In our opinion, the learned Judge committed a serious error in convicting the accused without any legal evidence to establish his guilt.

Few things do not need much elaboration. Firstly, that the deceased had arrived in village Umlla with a bunch of labourers for the tree cutting work possibly at the instance of the accused. The accused and the deceased were in touch since then. For a few days, the deceased and the labourers were left with no work. They were waiting idly in the village.

On 5.2.2008, dead body of Jesangbhai was found from the bridge on river Narmada. The fact that he was murdered was clearly established through the nature of injuries on his body. His identification is also not been seriously challenged though identification took place through the photograph shown by the police to the wife of the deceased. The fact that the dead body which was found on 5th February was that of deceased Jesangbhai is not seriously in dispute.

The last seen theory principally stems from the deposition of witness Sashikantbhai PW-5, exh. 107. According to him, a few days after the labourers remained idle at village Umlla, Bhupendrabhai the accused instructed him to bring Jesangbhai to Jhagadia cross road. This witness thereupon took Jesangbhai to Jhagadia where they met the accused. They had refreshments. The accused informed the witness that he and Jesangbhai were going to Bharuch for seeing the forest. The witness himself went home after visiting a temple. The prosecution also relies on the deposition of Sankar Raising, PW-7, exh. 109, in this connection. He was a member of the group of labourers. He had come with Jesangbhai to village Umlla. According to this witness Sashikantbhai had come to take Jesangbhai saying Bhupendra had called him to collect the expenses. Sukhiben Sankarbhai Nayak, PW-9, exh. 111, also gave a similar version of Jesangbhai having gone to see Bhupendra to collect expenses, she stated that she had never seen Sashikantbhai.

A few things emerge from the deposition of these witnesses. According to Sashikantbhai, PW-5, he had never gone himself to fetch Jesangbhai in order to meet the accused at Jhagadia. He had called him at Umlla bus stand. In contrast, Sankar Raising, PW-7 stated that it was Sashikantbhai who had come and taken Jesangbhai to take him to Bhupendra. Once again though Sukhiben Sankarbhai Nayak, PW-9, stated that Jesangbhai had gone to meet the accused for collecting the expenses, she had never seen Sashikantbhai. The manner in which therefore, the deceased allegedly went up to the accused does not clearly come out from the deposition of these witnesses. In any case, neither Sukhiben, PW-9 nor Shankarbhai, PW-7 can be stated to be eyewitness of seeing the deceased and the accused together. They were only told that the deceased was going to meet the accused at Jhagadia. That leaves only the testimony of Sashikantbhai on the issue of last seen together theory. Even if we were to believe this version of Sashikantbhai of having taken the deceased to the accused at Jhagadia, it would not establish the last seen together theory. Firstly, the date on which this incident happened has not come out on record at all. Secondly, the time gap between the meeting of the accused and the deceased at Jhagadia in presence of Sashikantbhai and the murder of deceased is too wide. We may recall that the postmortem of the dead body was carried out at 2 O''clock on 5.2.2008. According to the doctor, death would have occurred 24 hours before. Even as per the prosecution, the murder took place in the night of 4.2.2008. Nowhere has it come through any evidence when the accused and deceased met at Jhagadia cross road.

In view of such uncertain evidence of time and the date on which the accused and deceased met together at Jhagadia, in our opinion, the last seen theory circumstance cannot be stated to have been established because of the wide gap of time between the two incidents namely, being seen together and death of deceased. It would even otherwise be unsafe to rely on this factor as one of the circumstance to convict the accused. While we refer to deposition of Sashikantbhai, one more aspect needs to be discarded is the so-called extra judicial confession by the accused to him. We may recall that according to this witness when few days after the deceased and the accused met at Jhagadia, the accused came to this witness and asked for money, he seemed scared. When asked initially he stated that he would reveal later. But went on to confide that on account of money matters, there had been a scuffle and that Jesangbhai had been murdered. To begin with extra judicial confession is always considered a week piece of evidence. In absence of any corroborative evidence, it would be unsafe to convict the accused only on the basis of extra judicial confession, unless, of-course, it is found to be totally reliable, voluntary and truthful. In the present case, in the cross examination, this witness clarified that said meeting took place on 5th or 6th February, 2008. When he was asked about the accused being extremely scared, the accused promised to state later and did not say anything more. Now this is directly in contrast with his own version in the examination in chief where he had stated that after promising to reveal the reason of being scared later, the accused had immediately confided that due to money matters, he had a scuffle with the deceased and Jesangbhai was murdered. We must therefore, at this very stage discard the prosecution version of the accused having admitted his guilt before this witness.

Reverting to the so-called discovery panchnama exh. 78, we may recall that Manoj Maheshchandra Agrawal, PW-4, did not support the prosecution. The Investigating officer however, narrated the manner in which such panchnama was drawn. A perusal of the panchnama however, would reveal that there was no discovery of any material, article or place made under the panchnama. Section 27 of the Indian Evidence Act is an exception to the rule of inadmissibility of evidence u/s 25 and 26. We may recall that u/s 25 and 26 of the Evidence Act, any confession made to a police officer or any confession made by the accused while in custody of a police officer, unless the same is made in immediate presence of a Magistrate, is not admissible. Section 27 however, makes an exception and provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved. In the present case, the panchnama records how the accused had taken the police officer from place to place and showed different places from where the deceased was taken before he was murdered. Such statement would not fall within the exception carved out in section 27 of the Indian Evidence Act. No fact was discovered which would make the statement of the accused admissible despite being in custody of police.

Strangely, the learned Judge also relied on the report of the polygraph and evidence of Hemangi Rasiklal Shah, PW-1 in this respect. As is well known, polygraph, is at best a process which could be employed, that too under certain circumstances, during the course of investigation. Significantly, in the present case, all that the polygraph report opined was that the murder could have taken place in presence of the accused.

In absence of any evidence to link the accused with the commission of offence, in our opinion, the trial Court committed a serious error in convicting him. There are certain additional aspects of the matter which throw further doubt about the prosecution version. If as per the prosecution the deceased was missing since 3.2.2008, one wonders why no missing report was lodged till as late as 28.2.2008. Saniben Jesangbhai Nayak, PW-6, wife of deceased Jesangbhai also states that she and others in the family had looked for the whereabouts of the deceased at the place of/the relatives, but he was not found. Her son had seen the photograph of the deceased in the newspaper upon which she had learnt that her husband was murdered. She does not give the date on which the son saw the photograph or the date of the newspaper in which such photograph was published. If the dead body was found on 5.2.2008, in all probabilities, the photograph would have been published in the newspaper of the next date or shortly thereafter. This further raises question-mark about the missing person�s report being lodged as late as 28.2.2008. The prosecution also failed to establish the motive. Though time and again, the theory of misunderstanding in accounts was putforth, there was no evidence at all in this respect. No evidence was led to suggest that the deceased was paid sizeable sum towards advance and that due to non availability of work, the understanding had to be called off. The deceased refused to repay the same. If at all, it was the deceased and his labourers who had been left idle for few days and if at all, therefore, it would be the deceased who would be seeking more recoveries from the accused. It may be recorded that the case solely rests on circumstantial evidence. Conviction of the accused can be recorded for such circumstances only when all circumstances established on record form a complete chain as to unerringly point to the guilt of the accused eliminating any other contrary theory. Total absence of motive in such a case would be an additional factor in favour of the accused. All in all, in our opinion, there was simply no evidence to convict the accused. In the result, Criminal Appeal is allowed. Judgment of the learned Additional Sessions Judge dated 9.12.2010 in Special Atrocity Case No. 30/2008 is reversed. The appellant is acquitted of all the charges. The appellant shall be released forthwith, if not required in any other criminal case. Criminal Appeal is disposed of accordingly.

R & P may be transmitted back to the concerned trial Court.