Gujarat High Court
Narubhai Amarsinh Makwana(Koli ... vs State Of Gujarat on 15 June, 2022
Bench: Rajendra M. Sareen
R/CR.A/3056/2008 JUDGMENT DATED: 15/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 3056 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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NARUBHAI AMARSINH MAKWANA(KOLI PATEL)
Versus
STATE OF GUJARAT
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Appearance:
MR PATHIK M ACHARYA(3520) for the Appellant(s) No. 1
MR HK PATEL, ADDL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Page 1 of 23
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R/CR.A/3056/2008 JUDGMENT DATED: 15/06/2022
Date : 15/06/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This appeal is directed against the judgment and order
dated 09.09.2008 passed by the learned Sessions Judge,
Ahmedabad (Rural) in Sessions Case No. 107 of 2007 whereby
the present appellant - original accused came to be convicted
for the offence punishable under Section 302 of the Indian
Penal Code, 1860 (herein after referred to as 'the IPC') and
sentenced to undergo life imprisonment and a fine of Rs.1000/-
and in default of payment of fine, to undergo further simple
imprisonment for 3 months.
2. The brief story of the prosecution is that on 19.08.2007
between 4:00 a.m. and 5:30 a.m. at village Bhetawada when
deceased Savjibhai Amarshibhai was sleeping on the cot in a
cattle-shed, the appellant - accused, allegedly keeping grudge
of earlier dispute, possessed with arm i.e. Dharia came at the
said place and thereafter gave blows on the head and left ear
of the deceased. As a result of said injury sustained by the
R/CR.A/3056/2008 JUDGMENT DATED: 15/06/2022
deceased, he succumbed to the injuries. It is, therefore,
alleged that the appellant-accused committed an offence alleged
against him.
2.1 After the registration of FIR, the investigating agency
carried out the investigation and thereafter submitted the
charge-sheet before the concerned Magistrate Court. However,
as the case was triable by the Court of Sessions, it was
committed to the Sessions Court under Section 209 of the Code
of Criminal Procedure.
2.2 The case was registered and numbered as Sessions Case
No.107 of 2007 before the Sessions Court, Ahmedabad (Rural).
The trial Court framed the charge against the accused. The
accused pleaded not guilty and claimed to be tried. Thereafter
the prosecution laid oral as well as documentary evidence with
a view to prove the charge against the appellant - accused.
The prosecution has examined the following witnesses and also
produced several documentary evidence as under;
R/CR.A/3056/2008 JUDGMENT DATED: 15/06/2022
ORAL EVIDENCE
S/n. Name of Witness Exh.
DOCUMENTARY EVIDENCE
S/n. Document Exh.
deceased
accused
6 Seizure Panchnama of clothes of the 16
accused
R/CR.A/3056/2008 JUDGMENT DATED: 15/06/2022
2.3 At the end of the trial, further statement of the accused
under Section 313 of the Code of Criminal Procedure was
recorded. In which, he pleaded not guilty and also stated that
he has been falsely implicated in the alleged incident.
Thereafter, after considering the material placed before the
Sessions Court, the concerned trial Court convicted the accused
as observed herein above and passed the impugned order of
conviction against appellant - accused. Against the said order,
the appellant - accused has preferred this appeal.
3. Heard learned advocate Mr. Pathik Acharya for the
appellant - accused and learned APP Mr. H. K. Patel for
respondent - State.
4. Learned advocate for the appellant referred the deposition
given by various prosecution witnesses. Learned advocate for
the appellant referred the deposition given by PW 1 Bharatbhai
Savjibhai, who is a son of the deceased. The deposition of
said witness is recorded at Exh.5. It is submitted that the said
witnesses is not eyewitness and he had not seen the incident
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in question. Learned advocate thereafter referred deposition of
PW 2 Gajraben Bharatbhai who is wife of the complainant. It
is submitted that said witness has also not seen the incident in
question and the said witness reached to the place of incident
after the so called incident has taken place in the cattle-shed.
4.1 Learned advocate Mr. Acharya has also referred
deposition given by PW 3 Nanjibhai Khodabhai, who is
neighbor of the deceased. After referring to the deposition of
the said witness, it is contended that as per the say of the said
witness, he has seen the weapon Dharia in the hands of the
accused - appellant. However, the deposition given by the
said witness is not required to be believed as there are major
contradiction in the deposition of the said witness.
4.2 Similarly learned advocate advocate has referred
deposition given by the PW 4 Pratapbhai Bhayajibhai and PW
5 Kalubhai Narsinhbhai. Learned advocate submitted that PW 4
is the panch witness of panchnama of discovery of the
weapon. It is submitted that said witness is not reliable witness
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and because of incident of scuffle which took place in past
between the said witness and the accused, it appears that the
said witness has given false deposition against the accused. It
is also contended that PW 5 Kalubhai Narsinhbhai is a panch
witness of inquest panchnama of place of incident. In fact said
witness knows Pw 3 Nanjibai Khodabhai, as he was Sarpanch
and having residence near place of incident. Hence, the said
witness is termed as an interested witness, this Court may not
consider the deposition given by the said witness.
4.3 Learned advocate Mr. Acharya submitted that PW 6
Manibhai Shankarbhai and PW 7 Udesang Welabhai have
turned hostile and not supported the case of the prosecution.
At this Stage, it is submitted that from the deposition given by
PW8 Mahendrasang Kalusing Waghela, PSO who has registered
the FIR, it appears that the said witness informed PSI and as
per the deposition of the said witness the complaint was taken
at the place of incident. Learned advocate thereafter referred
a deposition of PW 9 Bhailalbhai Tulasibhai Karolia,
Investigation Officer who has carried out investigation,
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recorded the statement, prepared the Panchnama and sent the
mudamal weapon for necessary examination to FSL. It is
submitted that thereafter PW 10 Jaydev Prasad Rambahor
Mishra, another Investigating Officer has continued the
investigation and filed charge-sheet against appellant -
accused. However, in the meantime one police officer namely
Mr. S. K. Solanki carried out the investigation but surprisingly
the prosecution has not examined the said police officer.
4.4 Learned advocate thereafter referred the deposition of PW
11 Dr. Momin at Exh.27. It is submitted that from the
deposition given by the Doctor as well as Post Mortem report,
the deceased sustained one injury on head which was a fatal
blow sustained by the deceased. Learned advocate therefore
urged that in the present case there are no eyewitnesses to the
incident in question and the case of the prosecution is based
upon circumstantial evidence. It is submitted that in case of
circumstantial evidence, the prosecution has to prove the
motive with a view to prove the guilt of the accused.
However, in the present case, from the evidence produced on
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record the prosecution has failed to prove the motive on the
part of the accused for commission of the alleged offence. It is
submitted that even as per the case of prosecution on the
previous day of the incident, the accused used abusive
language and given threats but that does not mean that the
accused was having any motive to kill the deceased. It is
further submitted that prosecution is also failed to prove the
intention on the part of the accused for committing the offence
punishable under Section 302 of the IPC.
4.5 Learned advocate would further submit that the theory of
last seen together is also not proved on the basis of deposition
given by PW 3 Nanjibhai Khodabhai who is residing in the
agricultural field of the family member of the accused and the
deceased. Learned advocate would at this stage submit that
the mudamal weapon was also found from the open place
which is accessible to the public and the prosecution is also
failed to prove the discovery of weapon at the instance of the
appellant by leading cogent evidence.
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4.6 Learned advocate Mr. Acharya submitted that without
prejudice to the aforesaid contention and without admitting
guilt of the appellant, even assuming that present appellant has
given blow to the deceased, then it is a case of single blow
and the incident has taken place in spur of moment.
Therefore, the sessions Court has committed an error while
punishing him and convicting the accused for the offence
under Section 302 of the IPC and at the most appellant can be
punishable under Section 304 (Part I) of the IPC.
5. Learned advocate Mr. Acharya has placed reliance upon
following decisions;
(1) Binder Munda vs. The State of Orissa reported in 1992
Cr.L.J. 3508
(2) Digamber Vaishnav vs. State of Chhattisgarh reported in
(2019) 4 SCC 522
(3) Nagendra Sah vs. State of Bihar reported in (2021) 10 SCC
(4) Shivaji Chintappa Patil vs. State of Maharashtra reported in
(2021) 5 SCC 626
R/CR.A/3056/2008 JUDGMENT DATED: 15/06/2022
(5) Surendra Kumar vs. State of Uttar Pradesh reported in AIR
2021 SC 2342
5.1 After referring to the relevant paragraphs of the aforesaid
decisions, it is contended that in the case of circumstantial
evidence, there is always a danger that the conjecture or
suspicion may take the place of legal proof and therefore, the
Court has to be watchful and ensure that the conjecture and
suspicion do not take the place of legal proof.
5.2 It is observed in Para 16 of the judgment in case of
Digamber Vaishnav (supra) that;
"16. In order to sustain conviction on the basis of
circumstantial evidence three conditions must be
satisfied.
(i) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and
firmly established;
(ii) those circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
accused; and
(iii) the circumstances, taken cumulatively, should
form a chain so complete that there is not escape
from the conclusion that within all human probability
the crime was committed by the accused and none
else, and it should also be incapable of explanation on
any other hypothesis than that of the guilt of the
accused."
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5.3 It is also contended that in the said judgment it has been
observed that there is long distance between "may be true and
"must be true" and the prosecution has to travel all the way
to prove its case beyond reasonable doubt. It is submitted
that in the present case, prosecution has failed to prove the
case against appellant beyond reasonable doubt.
5.4 Learned advocate would further submit on the basis of
aforesaid decision rendered by the Honourable Supreme Court
that in case of direct evidence motive would not be relevant.
However, motive is the important link to complete the chain
of circumstances. In the present case the prosecution has
failed to prove the motive on the part of the appellant to
commit the alleged offence to kill the deceased.
5.5 Learned advocate Mr. Acharya thereafter submitted that
under Section 27 of the Evidence Act, it is not discovery of the
fact that is admissible but relevant fact is alone admissible.
Relevance is nothing but the link between the facts discovered
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with the crime. It is submitted that in the present case the
prosecution has failed to prove that the appellant was the
owner of the weapon which was discovered at the instance of
the appellant. It is submitted that from the evidence produced
before the trial Court it revealed that one of the witnesses has
specifically stated that the weapon i.e. Dharia which was
discovered would be found with every person of the village
and therefore in absence of ownership of weapon being
established, the trial Court has committed an error while
passing the order of conviction against the appellant - accused.
Learned advocate therefore urged that the impugned order of
conviction passed by the Sessions Court be set aside and
thereby appellant be acquitted.
6. On the other hand, learned APP Mr. Patel has
vehemently opposed this appeal and at the outset submitted
that the prosecution has proved the case against the appellant
beyond reasonable doubt and therefore, the trial Court has
rightly passed an order of conviction against the appellant.
R/CR.A/3056/2008 JUDGMENT DATED: 15/06/2022
6.1 Learned APP has at this stage referred the FIR, copy of
which is placed on record at page 57 of the paper-book. After
referring to the FIR, it is submitted that FIR was filed on
19.08.2007 and on 18.08.2007, the appellant gave threats to
the family members of the deceased, quarrel took place on
18.08.2007. The appellant used abusive language and given
the threats that the family members of the deceased should not
come at the bore-well of the appellant, otherwise he will kill
one of the brothers. It is pertinent to note that appellant is
the uncle of the complainant and the brother of the deceased.
At this stage, learned APP has referred deposition of PW 3
Nanjibhai Khodabhai, who is neighbor of the deceased. After
referring to the deposition it is contended that the said witness
had seen appellant near the cot of the deceased with the
weapon. The appellant was using abusive language also. At
this stage learned APP referred the deposition given by PW 6
Manibhai Shankarbhai. The said witness though turned
hostile, has specifically stated that he had overheard the voice
of the appellant - accused. Thus learned APP submitted that
presence of the appellant was established at the place of
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incident at the time of incident in question.
6.2 Learned APP would further submit that the weapon by
which the appellant has committed an offence punishable
under Section 302 of the IPC was discovered at his instance.
Learned APP has referred discovery Panchnama Exh.14. After
referring to the same, it is submitted that the weapon was not
found in the open place but it was only within the knowledge
of the appellant-accused. It is submitted that discovery
panchnama is duly proved by examining PW4 Pratapbhai
Bhayajibhai at Exh.13.
6.3 Learned APP has submitted that blood stains were also
found on the weapon. At this stage, learned APP referred the
Serology Report of FSL i.e. Exh.26. After referring to the said
report, learned APP submitted that blood group of the
deceased i.e. "O" was found on the weapon and on the other
articles which were sent to the FSL. Learned APP thereafter
referred to the deposition given by PW 11 Dr.Kulsum Momin
at Exh.27. It is submitted that from the deposition given by
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the said witness and the postmortem report, it was revealed
that the deceased sustained three injuries. One injury on the
head and another on left ear of the deceased and the cause of
death of deceased was shock due to severe injuries sustained
by the deceased. Thus learned APP would submit that the
deceased sustained more than one injuries. It is not the case of
one blow as contended by learned advocate for the appellant.
6.4 Learned APP would further contend that the prosecution
has proved the motive of the appellant for commission of the
alleged offence and when the appellant was found near cot of
the deceased with weapon - Dharia, during early morning
hours, the prosecution has proved the case against the
appellant beyond reasonable doubt. Learned APP therefore
urged that the present appeal filed by the appellant - accused
may not be entertained.
7. Having heard learned advocates appearing for the parties
and having gone through the material placed on record, it
would emerge that incident took place on 19.08.2007. It is
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specifically stated in the FIR by the complainant that on the
previous date of incident i.e. on 18.08.2007 quarrel took place
between appellant and the family members of the deceased
with regard to the bore-well and threats were administered by
the appellant. It was specifically stated by him that one of
the brothers will be killed. From the evidence of PW 3
Nanjibhai Khodabhai as well as PW 6 Manibhai Shankarbhai,
it further reveals that PW 3 who is neighbor and who was
sleeping near the cot of the deceased had found the appellant
near the cot with weapon Dharia and he was also using
abusive language. Similarly PW 6, though he was declared
hostile, specifically stated that he had overheard the voice of
the appellant, however, he did not see the appellant. Thus
from the evidence of the aforesaid witnesses, the prosecution
has able to prove the presence of the appellant at the time
and place of incident. It is also relevant to note that the
prosecution has examined PW 4 Pratapbhai Bhayajibhai at
Exh.13 who is panch witness of discovery panchnama. We
have gone through the deposition given by the said witness
and the discovery panchnama. We are of the view that the
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prosecution has proved the said discovery of the weapon.
Blood stains were also found on the weapon. From the
Serology Report produced at Exh.26 it is revealed that blood
group of the deceased was found from the weapon which was
discovered at the instance of the appellant. We have also gone
through the deposition given by Dr. Kulsum Momin PW 11 at
Exh.27. We have also perused the postmortem report of the
deceased. From the deposition of the Doctor as well as PM
report, it would reveal that the deceased sustained more than
one injuries - one injury on the head and another near left
ear and the cause of death is due to severe injuries sustained
by the deceased. The Doctor has specifically stated in the
deposition that injuries could be possible by the weapon -
mudamal article 9 which was discovered at the instance of the
appellant.
7.1 In case of Binder Munda (supra), the Orissa High Court
has considered the case of Sharad Birdhichand Sarda vs. State
of Maharashtra reported in (1984) 4 SCC 116 and thereafter
observed that in case of circumstantial evidence following
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aspects are required to be considered by the Court;
"(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say. they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and (5) there must be a
chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in
all human probability the act must have been done by
the accused."
7.2 In case of Nagendra Sah (supra), the Honourable Supreme
Court has once again considered the aforesaid guidelines in
case of Sharad Birdhichand Sarda (supra).
7.3 In case of Digamber Vaishnav (supra), the Honourable
Supreme Court has held that one of the principle of criminal
jurisprudence is that burden of proof squarely rests on the
prosecution and that the general burden never shifts. It is
also observed that there is a long distance between "may be
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true" and "must be true" and the prosecution has to travel all
the way to prove its case beyond reasonable doubt. It is also
held that in criminal cases if two view are possible one
binding to the guilt of the accused and the other is to his
innocence, the view which is favourable to the accused should
be adopted.
7.4 Thereafter, in the very same decision the Honourable
Supreme Court has made observations with regard to
provisions contained under Section 27 of the Evidence Act that
it is not the discovery of every fact that is admissible but the
discovery of relevant fact is alone admissible. In the said case
the recovery of the motorcycle is sought to be releid upon as a
circumstances against the concerned appellants - accused and
ownership of the said motorcycle was not proved by the
prosecution and in the said case, the prosecution has not
proved that the appellant - accused was the owner of the
motorcycle and therefore, the Honourable Supreme Curt has
made certain observations. However, in the present case the
aforesaid observations would not be applicable as the present
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case is not the case of vehicle which was discovered at the
instance of the appellant - accused.
7.5 In case of Shivaji Chintappa Patil (supra), the
Honourable Supreme Court has observed in para 27 that in a
case of direct evidence, motive would not be relevant, in a
case of circumstantial evidence, motive plays an important link
to complete the chain of circumstances.
7.6 Similar type of observations are also made in the case
Surendra Kumar (supra) in para 25 and 26;
"25. Similarly for the husband Ramveer, there is no
direct evidence to establish his role in the incident.
As his conviction is entirely based on a conspiracy
theory, it is essential to determine whether there was
an agreement between the parties for doing an
unlawful act and it must emerge clearly from evidence
that there Page 20 of 23 was meeting of mind
towards a common goal between Ramveer and his
brother and also between Ramveer and the two armed
robbers. The case evidence on record does not
however establish any such agreement between
Ramveer and the other accused. Conspiracy is a
matter of inference and inference must be based on
solid evidence. In case of any doubt the benefit must
inevitably go to the accused. The 2nd appellant's
conviction simply because of his dislike for the
deceased, even if accepted to be correct, would not in
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our opinion be justified in the absence of any
evidence either direct or of conspiracy, to link him
with the crime.
26. The conspiracy theory to kill Kamla Rani, only
because she was not liked by her husband is far too
improbable to accept since the prosecution failed to
present any evidence to show meeting of minds and
common intention of all accused. Ramveer may not
have been happy with his wife but this by itself does
not establish that he hatched a conspiracy with his
brother Surendra and his father Om Prakash (who
died during trial), to kill Kamla Rani. The simple fact
of being unhappy with a person even if accepted, do
not provide a strong enough motive to hatch a
conspiracy to eliminate the person. But this aspect
was ignored by the Court below to attribute motive
for the murder. In our assessment the motive element
in the chain of circumstances is not acceptable and
the benefit of the broken link must be made available
to the appellants."
7.7 Keeping in view the aforesaid decisions rendered by the
Honourable Supreme Court as well as Odisha High Court, facts
and evidence produced by the prosecution before the trial
Court are carefully examined, this Court is of the view the
prosecution has proved the case against appellant beyond
reasonable doubt. Motive of the appellant accused is also
established by leading cogent evidence and the chain of
circumstantial evidence is also complete.
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8. We have also gone through the reasoning recorded by the
concerned trial Court. We have also re-appreciated the entire
evidence produced before the trial Court and we are of the
view that the trial Court has not committed any error while
passing the impugned order of conviction against appellant -
accused. This appeal is therefore deserves to be dismissed.
Accordingly the same is dismissed.
(VIPUL M. PANCHOLI, J)
(RAJENDRA M. SAREEN,J)
DRASHTI K. SHUKLA
