HITESHBHAI GORDHANBHAI LADVA vs STATE OF GUJARAT

This appeal is preferred under Section 374 of

the Criminal Procedure Code by the convict against

judgment and order of conviction and sentence dated

12.03.2014 by Additional Sessions Judge, Junagadh in

Sessions Case No.79 of 2011. By the aforementioned

judgment, the Sessions Court had recorded conviction of

the appellant for offence under Section 302 read with

Section 364 of the Indian Penal Code and sentenced the

appellant for rigorous imprisonment for life and fine of

Rs.2,000/-, both under Section 302 and 364 .

Facts are as under:-

2.1 An FIR being I-CR No.74 of 2011 came to be

registered by one Ramabhai Desurbhai Kodiyatar in

connection with unnatural death of his son Bavan on

21.07.2011. In the FIR, it is narrated that his deceased

son was married on 23.02.2011 and was helping him in his

business of "kariyana" store and since last 10-15 days,

he was also doing labour work for his father-in-law,

whose tenement was under construction in Junagadh. It is

narrated that on 21.07.2011, as per his daily routine, he

left the house at 8 O''clock, but did not return on his

regular time. Upon inquiry, his wife informed that on

phone, Bavan informed here that he would be late as there

is some more work. He did not even return till 9 O''clock

in the night and his mobile phone was shown to be out of

coverage. On 22.07.2011, in the morning, information was

received that dead body of his son was found in the

limits of village Moniya and that his son had received

serious injuries with sharp cutting weapon on his head.

At that time, the complainant did not express any

suspicion against any person. The investigation was

commenced with such FIR and upon due investigation,

charge sheet for offences under Sections 302 and 364 of

the Indian Penal Code and Section 135 of the Bombay

Police Act came to be filed against the appellant-

accused.

2.2 Vide Exh.2, charge came to be framed to the

extent that the appellant had received loan from the

deceased, for which interest was mounting. The appellant

had purchased auto rickshaw from the money and every now

and then, deceased used to demand repayment of the loan

amount and the deceased was also managing auto purchased

by the deceased. The father of the deceased often used

to make inquiry about their internal business and had

also threatened the appellant that his house will be burn

down and hence, to get rid of the pressure of loan amount

as well as to get out of pressure of the father of the

deceased, the appellant decided on his own to commit the

offence and accordingly on 21.07.2011, made mobile call

on the deceased, calling him to a particular place under

the guise of having a customer for his auto rickshaw and

thereafter, he took the deceased in his ''chakado''

rickshaw and with the help of Axe, which he had purchased

prior in point of time, assaulted the deceased on head

and on neck, thereby committing his murder. After

compliance with provisions of the Criminal Procedure

Code, trial was commenced, as the appellant did not plead

guilty and claimed to be tried.

2.3 During the course of trial, the prosecution

examined 24 witnesses and proved 41 documents.

2.4 The Sessions Court after due consideration of

the evidence on record, found the accused guilty of the

charge and recorded his conviction and thereby sentenced

him for life.

Learned Advocate for the appellant challenges

the conviction on the ground that there was no sufficient

evidence to maintain the conviction and that the impugned

judgment and order is based on presumptions, assumptions

and surmises. It is submitted that the appellant and the

deceased were neighbours and friends and that there was

no animosity between them for which the appellant would

have committed the offence.

3.1 It is submitted that the entire case is based

on circumstantial evidence. There are no eyewitnesses

and even the circumstances produced by the prosecution by

way of evidence does not complete the chain to establish

the crime beyond reasonable doubt. The evidence on which

the prosecution relies upon to prove the case, is only

confessional statement, which has no evidenciary value.

The prosecution has failed to prove discovery panchnama

and the same does not inspire any confidence. This is a

glaring lapse on the part of the prosecution and hence,

the appellant is entitled to the benefit. It is

submitted that the appellant was in daily contact not

only with the deceased but also his family members as he

used to park his auto rickshaw in the premises of the

family of the deceased. Even after incident, the

appellant was very much available and has participated in

all the rituals of the family as a neighbour and

therefore, his conduct was most natural. It is submitted

that the investigation, to hide its lapses and inability

to detect the crime, has falsely implicated the

appellant.

As against this, learned APP submitted that the

prosecution has been able to produce enough evidence in

the form of witnesses and scientific evidence in the form

of FSL reports and mobile call details to establish the

offence against the appellant beyond reasonable doubt.

The prosecution was also able to establish the motive on

the basis of transaction regarding auto rickshaw which

was purchased with the money of the deceased, but was

being managed by the appellant.

4.1 It is submitted that on the basis of medical

evidence and oral evidence of the Doctor, prosecution was

able to establish a case of homicidal death and

thereafter, on the basis of scientific evidence, the

prosecution was able to establish the use of Axe (weapon

of assault) as the blood stains of the blood group of the

deceased were found on the Axe. It is further submitted

that the deceased was in contract with the accused. This

fact was established on the basis of Call Detail Records

which is also produced on record.

Heard both the sides. Taken into consideration

the impugned judgment and evidence on record. Before

proceeding to take into consideration the evidence on

record, it would be beneficial to refer to the judgment

of the Supreme Court in the case of Chandrappa & Ors. Vs.

State of Karnataka, reported in (2007) 4 SCC, 415, wherein

the Supreme Court has held as under in para-42:-

"From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be

presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

For the purpose of motive, which is the most

important aspect, the prosecution has examined father of

the deceased Ramabhai Desurbhai Kodiyatar-PW No.7-Exh.37

(the first informant). In his deposition, he has deposed

that even at the time of filing of the FIR, he did not

suspect anybody or any reason for which his son was

assaulted. It is only after four days of the FIR, when

he read from the newspaper that he came to know about the

fact that the accused is involved in murder of his son.

He also deposed that the accused had purchased "chakado

rixa" and accused used to park the same in his premises

as accused was friend of his son. He also deposed that

even on the day of incident, as per his regular habit,

the accused, on his regular time, came for parking his

rickshaw and at that time, when this witness asked the

accused as to whom the auto rickshaw belongs, he was

informed by the accused that it belongs to his friend and

for some repair work, auto rickshaw was parked there.

This witness also deposed that he had inquired from the

accused whether his son had any part or interest in the

"chakado rixa" which was driven by the accused or whether

he had taken any loan from the deceased. He deposed that

later on, he came to know that the accused had taken an

amount of Rs.18,000/- on interest from the deceased. He

also deposed that later on, he came to know that the

reason for the accused to murder his son was not to repay

Rs.18,000/- or to give any account of auto rickshaw which

was being driven by the accused and which, according to

this witness, belonged to his deceased son. In the

cross-examination, this witness admitted that it was the

Investigation Officer who informed him about involvement

of the accused in the offence. The prosecution has

failed to produce any evidence about ownership of the

auto rickshaw driven by the accused, belonging to the

deceased. Nothing is available on record to establish

that amount of Rs.18,000/- was taken by way of loan by

the accused from the deceased.

Another witness examined by the prosecution,

viz. Sajanbhai Ramabhai Kodiyatar-PW No.8-Exh.41 also

does not establish any motive against the accused person,

Other witnesses, who are family members, have also

deposed on the same line and do not establish any motive.

The other witness examined by the prosecution

to substantiate motive is Ayubbhai Umarbhai Bagduwala-PW

No.14-Exh.48. This witness had deposed that he had sold

the auto rickshaw on 13.04.2011 to deceased Bavanbhai

Kodiyatar and when he sold this auto rickshaw, the

accused was with him. He deposed that part payment of

the amount was made by the deceased and balance

Rs.12,500/- was to be paid after a month. Accordingly,

documents in writing were executed on stamp paper. He

deposed that on 02.05.2011, the deceased had sent the

balance amount through the accused. He deposed that the

accused paid the balance amount and took documents with

him. In the cross-examination, he admitted that the

accused had signed as a witness on 50 rupee stamp paper

document. He also admitted that the original papers and

transfer forms were handed over to the deceased. This

evidence, in the opinion of this Court, is not sufficient

to establish a strong motive for the accused to commit

the offence. The evidence of PW No.14-Exh.48 suggests

that the conduct of the accused was natural as a friend

of deceased. He had accompanied the deceased for

purchase of auto rickshaw and has, in fact, signed as a

witness and subsequently, when the balance amount towards

price of auto rickshaw was paid, the same was paid at the

hands of the accused by the deceased and the accused had

safely handed over balance amount. It is also pertinent

to note that the transaction with regard to auto rickshaw

had taken place in the month of April 2011 whereas the

incident is of the month of July 2011. Hence also, there

is total dis-connect with the motive and the witness

examined for such purpose. It is apparent that had the

motive of the accused been money then such payment of

balance amount would not have taken place at all.

The Court has also perused the evidence led by

the prosecution to connect the accused with weapon of

assault. The prosecution relied upon evidence of

Vikasbhai Vajubhai Dudhatra-PW No.15-Exh.52, who,

according to prosecution, had sold the weapon of assault-

Axe to the accused. In evidence in chief, PW No.15 has

deposed that he does not recollect face of the person who

had purchased the weapon of assault from him. In his

cross, he has admitted that no Test Identification Parade

was carried out before him. He has also admitted that

the police has not read out the statement in front of him

nor does he identify muddamal article No.7 to be the

article which he had sold from his shop. In this view of

the matter, there is no evidence to connect the accused

with the weapon of assault.

The attempt of the prosecution to connect the

accused with the offence on the basis of panchnama drawn

of the scene of offence, which the prosecution terms as

demonstration panchnama, according to the prosecution,

the place of incident was shown by the accused himself.

This panchnama does not stand in view of deposition of

Ajitkhan Rahemankhan Bloch-PW No.1-Exh.10. This

panchnama cannot be termed to be an evidence at all,

where the witness narrated conversion between deceased

and the accused person in connection with the offence.

This evidence in itself cannot be considered to be

sufficient to base conviction nor does it carry any

corroborating strength.

The prosecution has left several questions

unanswered. Though Vijay Pravinbhai Gondhiya-PW No.4-

Exh.23, who is panch witness of the scene of seizure of

cloths referred to the cloths of the accused worn at the

time of offene, both shirt and black coloured pant and

refers to blood stains on both cloths, yet

Exh.86-"Ravangi nondh", refers to black coloured pant at

Mark-K whereas Exh.100-serological report mentions about

presence of blood stains of Group-B on the shirt referred

to as Mark-K. The entire document-Exh.86 does not refer

to shirt being sent for FSL report. This discrepancy is

enough to indicate the failure on the part of the

prosecution to connect the accused with the offence

beyond reasonable doubt.

In view of the aforesaid discussion, the

appellant herein is entitled to benefit of doubt. This

Court is of the view that the prosecution has failed to

establish the offence beyond reasonable doubt. As the

case being of circumstantial evidence, the prosecution is

unable to establish the chain of circumstances against

the accused. Hence, the impugned judgment and order

dated 12.03.2014 by Additional Sessions Judge, Junagadh

in Sessions Case No.79 of 2011 is quashed and set aside.

The appellant is ordered to be released, if not required

in any other offence. The appeal is allowed accordingly.

R & P to be sent back to the concerned trial

Court.