deposition of complainant Gurjibhai Isrambhai Nayak PW 8 recorded
vide Exh. 22, it is clear that the said witness, who is complainant, has
not supported the complaint. It is important to note that after recording
of paragraphs Nos. 1 and 2 of the examinationinchief, the learned
Additional Public Prosecutor had neither requested the Court to declare
the said witness as hostile one nor seek permission to crossexamine
the said witness. Instead of doing that, it appears from the evidence
which has been recorded vide paragraphs 3 and 4 of the examinationinchief
that a leading question had been asked to refresh the memory
of the said complainant PW 8 and thereby a novel procedure has been
adopted by the learned Additional Public Prosecutor which was
permitted by the learned trial Judge which is against the provisions of
Indian Evidence Act, 1872. It is important to note that before recording
paragraph Nos. 3 and 4 of the examinationinchief of P.W. No.8
Gurjibhai Isrambhai Nayak at Exh. 25, the learned trial Judge has not
put any note or remark to show as to for what reason learned Additional
Public Prosecutor was permitted to adopt said novel procedure.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 964 of 2016
MAHESHBHAI RATILAL BHIL
V
STATE OF GUJARAT
CORAM: MR.JUSTICE G.B.SHAH
Date : 11 /08/2016
Citation: 2017 CRLJ 459
1. Present appeal is directed against the judgment and order dated
28.04.2016, passed by the learned 3rd Additional Sessions Judge,
Vadodara in Chhotaudaipur in Sessions Case No. 18 of 2015, whereby,
the appellant herein original accused came to be convicted for the
offence punishable under Sections 304 Part II of the Indian Penal Code,
1860 (for brevity, 'the IPC'), and sentenced to undergo rigorous
imprisonment for seven years and to pay fine of Rs. 25,000 and in
default of payment of fine, to undergo further simple imprisonment for
one and half years. He was given set off for the period undergone in jail.
2. While preferring the present Criminal Appeal, the appellant herein
has also preferred Criminal Misc. Application No. 16536 of 2016 under
Section 389 of the Code of Criminal Procedure, 1973 ( for brevity ‘the
Code’) for suspension of the sentence imposed by the trial Court.
3. On 14.07.2016, this Court has passed the following order in the
said Criminal Misc. Application which reads as under:
“The present application has been filed by the applicant under section
389 of the Code of Criminal Procedure, 1973, for suspension of sentence
imposed by the trial court. Learned advocate Mr. Vijay Patel for Mr. H.L
Patel Advocates has furnished the relevant documents in form of paper
book and has also supplied the same to learned Additional Public
Prosecutor. He has also shown readiness and willingness to proceed
with the final hearing of this Appeal and accordingly requested to call for
the record and proceedings.
2. It is a fact that number of appeals are pending before this Court,
however,simultaneously it is also a hard reality that in most of the old
matters, the respective learned advocates appear to have no interest
and/or they choose not to remain present and if after the conditional
orders passed by the Court they remain present, they ask for adjourning
the matters, either on the ground that since long the concerned appellant
has not contacted in spite of repeated reminder or on the other ground.
3. Under the circumstances the Request made by learned advocate Mr.
Patel is granted. Registry is directed to call for the record and
proceedings of this appeal from the concerned trial court and the
concerned trial court is directed to forward the same so as to reach this
Court on or before 26.7.2016 and list the matter along with Criminal
Appeal for final hearing on 27th July 2016.”
4. Brief facts of the prosecution case are that the appellant picked
up quarrel with one Kevjibhai alleging as to why his son Rataniya had
kept the appellant’s sister Keshma with him and then in the said scuffle,
the appellant inflicted blow on the head of Kevjibhai with stone and
caused serious injuries. As a result of which, Kevjibhai died at the place
of incident.
5. Pursuant to the complaint, investigation was carried out. After
investigation, chargesheet was filed and as the case was triable by the
Court of Sessions, it was committed to the Sessions Court. The trial
Court framed charge against the accused. The accused pleaded not
guilty to the charge and claimed to be tried. In order to bring home the
charge against the original accused, the prosecution has examined as
many as 11 witnesses and also produced several documentary
evidence. At the end of the trial, Further Statement of the accused
under Section 313 of the Code was recorded in which he denied the
evidence and stated that a false case has been filed against him. Thus,
after recording abovereferred Further Statement and hearing the
arguments on behalf of prosecution and the defence, the learned
Additional Sessions Judge convicted the accused, as aforesaid, by
impugned judgment and order, giving rise to prefer the present appeal.
6. Heard learned advocate Mr. Vijay Patel for HL Patel advocates
for the appellantaccused and Mr. K. L. Pandya, the learned Additional
Public Prosecutor for the respondent State.
7. Learned advocate appearing for the appellant has drawn
attention of this Court on the complaint dated 02.04.2015 filed by
Gurjibhai Isrambhai Nayak which has been forthcoming on the record at
Exh. 23 along with his deposition recorded as PW 8 Gurjibhai
Isrambhai Nayak at Exh. 25 and submitted that on a minute perusal of
the documents, it is clear that the complainant has not supported the
case of the prosecution as well as the complaint. Moreover, the
learned trial Judge and the learned Additional Public Prosecutor who
conducted the case before the trial Court have bypassed the provision
of the Indian Evidence Act, 1872 and under the circumstances, as
such, the conviction imposed by the trial Court cannot be said to be
legal conviction but at the most it can be said to be moral conviction
which has no place in the eye of law.
8. He has then drawn attention of this Court on the deposition of PW
9 Sumliben Kevjibhai Nayak Exh. 24 and submitted that if the said
deposition of wife of the deceased is perused, it can be easily said that
she has not seen the incident and she reached the scene of offence
when the assailant had run away from the place. He has then drawn
attention of this Court on the deposition of PW 1 Dr. Kishorbhai
Jivrajbhai Bagda at Exh. 8 who has performed the post mortem of the
deceased and submitted that though it is case of the prosecution that
the appellant herein has first thrown the stone by which the deceased
fell down and thereafter he had picked up the stone and hit the
deceased on the back portion of the head then also if para 4 of his
deposition Exh. 08 is referred, it is clear that no such injury had been
noticed or recorded on the external part of the body though in
paragraph 6 he has stated that internal injury was the multiple fracture
on the left side on parital region from which brain has come out, but the
fact remains that as such no visible injury was there on the outer side of
head i.e external part of the head.
9. He has then referred the FSL report more particularly the
serological report at page 49 and submitted that serial Nos. H/1, H/2
which are alleged to have been clothes of the appellant, the blood stain
of the human blood of “B” group was found and it has also come on
record that the blood group of the deceased was also of group “B”. He
further submitted that likewise the said human blood of “B” group was
also found on the stone as well as on the stick, respectively serial Nos.
E and F.
10. He has then submitted that even if the said evidence of FSL can
be considered against the appellant herein then also at the most it can
be said to be a corroborative piece of evidence as blood on the cloth
was found but it cannot take place of substantive piece of evidence and
this important aspect has not been properly considered by the learned
trial Judge.
11. He has then submitted that so far as motive is concerned, the
same is also not proved because before about seven years, love affair
between the sister of the appellant and son of the deceased was there
but since last seven years, the accused had not done anything and the
normal tendency of a human being would be to react immediately on
the said grievance but that has not happened as it has been specifically
deposed by the complainant Exh. 22 in the cross examination that all
the neighbourers of the Faliya celebrated the festivals together in which
the family members of both the parties celebrated the functions
together and no any untoward incident took place during these
celebrations. He has lastly submitted that the present appellant has
been wrongly implicated.
12. Learned advocate for the appellant has relied upon the following
decisions:
[1] Rajiv Singh versus State of Bihar & Anr reported in
I(2016)CCR 70 (SC) more particularly paragraph Nos. 60 to 63.
[2] L.D. Satapara versus State of Gujarat reported in 2013
(5) GLR 3966
[3] Ishwarbhai @ Lakhio Chimanbhai Parmar reported in
2011 (2) G.L.H. 296 .
13. Mr. KL Pandya, learned Additional Public Prosecutor supported
the impugned judgment and order and submitted that the Court below
was completely justified in convicting the appellant for the offence under
Section 304 Part II of the Indian Penal Code.
13.1 He has vehemently submitted that over and above the deposition
of wife of deceased i.e. P.W. 9 Sumliben Kevjibhai Nayak Exh. 24 the
blood stains have been found on the clothes of the accused, stone and
also on stick. This is the most important and cogent evidence against
the accused and thus it is very much clear and proved that the
appellant has brutally killed the deceased and as there was sudden
provocation, the court has also believed the same and convicted the
appellant herein for the offence punishable under section 304 Part II
and imposed the sentence of seven years, which is just and proper and
does not require any interference.
14. I have considered the rival submissions made by the learned
advocates for the parties.
15. Before considering the submissions made by learned advocates
for the parties, citations on which the learned advocate for the appellant
has relied have to be reproduced which are as under:
[1] In case of Rajiv Singh versus State of Bihar & Anr I
(2016)CCR 70 (SC), it has been held in paragraph Nos. 60 to 63 as
under:
“60. It is well entrenched principle of criminal jurisprudence that a charge
can be said to be proved only when there is certain and explicit evidence
to warrant legal conviction and that no person can be held guilty on pure
moral conviction. Howsoever grave the alleged offence may be,
otherwise stirring the conscience of any court, suspicion alone cannot
take the place of legal proof. The well established cannon of criminal
justice is “fouler the crime higher the proof”. In unmistakable terms, it is
the mandate of law that the prosecution in order to succeed in a criminal
trial, has to prove the charge(s) beyond all reasonable doubt.
61. The above enunciations resonated umpteen times to be reiterated in
Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan (2013) 5 SCC
722 as succinctly summarized in paragraph 21 as hereunder:
“21. Suspicion, however grave it may be, cannot take the place of
proof, and there is a large difference between something that “may
be” proved and “will be proved”. In a criminal trial, suspicion no
matter how strong, cannot and must not be permitted to take place
of proof. This is for the reason that the mental distance between
“may be” and “must be” is quite large and divides vague
conjectures from sure conclusions. In a criminal case, the court has
a duty to ensure that mere conjectures or suspicion do not take the
place of legal proof. The large distance between “may be” true and
“must be” true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the prosecution, before an
accused is condemned as a convict, and the basic and golden rule
must be applied. In such cases, while keeping in mind the distance
between “may be” true and “must be” true, the court must maintain
the vital distance between conjectures and sure conclusions to be
arrived at, on the touchstone of dispassionate judicial scrutiny
based upon a complete and comprehensive appreciation of all
features of the case, as well as the quality and credibility of the
evidence brought on record. The court must ensure that
miscarriage of justice is avoided and if the facts and circumstances
of a case so demand, then the benefit of doubt must be given to the
accused, keeping in mind that a reasonable doubt is not an
imaginary, trivial or a merely probable doubt, but a fair doubt that is
based upon reason and common sense.” [Emphasis laid by the
Court]
62. In supplementation, it was held in affirmation of the view taken in
Kali Ram v. State of H.P, (1973) 2 SCC 808, that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the view which is favourable
to the accused should be adopted.
63. In terms of this judgement, suspicion, howsoever grave cannot
take the place of proof and the prosecution case to succeed has to be in
the category of “must be” and not “may be” a distance to be covered by
way of clear, cogent and unimpeachable evidence to rule out any
possibility of wrongful conviction of the accused and resultant
miscarriage of justice. For this, the Court has to essentially undertaken
and exhaustive and analytical appraisal of the evidence on record and
register findings as warranted by the same. The above proposition is so
wellestablished that it does not cal for multiple citations to further
consolidate the same. “
[Emphasis supplied]
[2] In case of L.D. Satapara versus State of Gujarat reported in
2013 (5) GLR 3966, in paragraph no. 10, it has been observed as
under:
“10. What is proof? In a sense, proof is antonyms to the presumption.
Commission of crime cannot be presumed. The prosecution is required
to bring on record commission of crime by the accused. It is to be
established. In order to prove the crime, the prosecution may take aid of
substantive evidence and corroborative evidence. Say of witness before
the Court is considered as substantive evidence. It is the say of material
witness in oral evidence who either may be the victim or the eye witness
or both that would transform the incident into the crime. Version and
impression of the victim or the eye witness about the occurrence would
form the basis of the case. They would give shape to the case of
prosecution. The other material on record other than evidence of victim
or the eye witness would serve as a corroborative piece of evidence. It is
the say of the witness that sieved through the crossexamination that
would form the material for the Court to appreciate. In crossexamination,
attempt would be to puncture the story of the prosecution by creating
doubt. The defence would also advance their own version of incident in
crossexamination. The Court would appreciate the material and decide
whether the say of prosecution as to commission of crime should be
believed or not.”
[3] In case of Ishwarbhai @ Lakhio Chimanbhai Parmar reported
in 2011 (2) G.L.H. 296, Head note reads as under:
“CRIMINAL LAWS Indian Penal Code, 1860S.302 Indian Evidence
Act, 1972S.60 Evidence of eye witnesses Admissibility On facts,
major contradictions and omissions in their evidence found Serious
doubts arised about their having witness pf the incident in questionAnimosity
with the appellant accused Held, Credibility of a witness
should be judged not only from his/her evidence but also with reference
to surrounding circumstances and probabilities Conviction cannot be
sustained on glaring contradictions Conviction set aside.”
16. In light of the above referred legal position, when we consider the
deposition of complainant Gurjibhai Isrambhai Nayak PW 8 recorded
vide Exh. 22, it is clear that the said witness, who is complainant, has
not supported the complaint. It is important to note that after recording
of paragraphs Nos. 1 and 2 of the examinationinchief, the learned
Additional Public Prosecutor had neither requested the Court to declare
the said witness as hostile one nor seek permission to crossexamine
the said witness. Instead of doing that, it appears from the evidence
which has been recorded vide paragraphs 3 and 4 of the examinationinchief
that a leading question had been asked to refresh the memory
of the said complainant PW 8 and thereby a novel procedure has been
adopted by the learned Additional Public Prosecutor which was
permitted by the learned trial Judge which is against the provisions of
Indian Evidence Act, 1872. It is important to note that before recording
paragraph Nos. 3 and 4 of the examinationinchief of P.W. No.8
Gurjibhai Isrambhai Nayak at Exh. 25, the learned trial Judge has not
put any note or remark to show as to for what reason learned Additional
Public Prosecutor was permitted to adopt said novel procedure.
17. It is pertinent to note at this juncture that thereafter in paragraph
No. 17 of the impugned judgment and order, the learned trial Judge has
observed that said P.W. No.8 was the eye witness to the incident, who
filed the complaint being nephew of deceased Kevjibhai and as he was
an Adivasi, illiterate and uneducated and as the deposition was being
recorded after eight months of the incident, learned APP had asked the
questions to said witness after for refreshing his/her memory and
thereby the said witness had deposed against the appellantaccused
herein as recorded in para 3 of the examinationinchief. Thus, it
appears that while dictating the judgment, the learned trial Judge has for
the first time disclosed the reason for permitting the learned APP to ask
the questions to the said witness after his memory. Said explanation, in
my view, is nothing but an afterthough and against the provisions of
Indian Evidence Act, 1872. As such, the learned APP has put the
answers in the mouth of the said witness which was impermissible and
which prejudiced the appellantaccused herein. Under the
circumstances, if at all no question had been asked to the said witness
in the crossexamination by the defence related to paragraphs 3 and 4,
then also, it makes no difference because the entire evidence of
paragraphs 3 and 4 had come on the record bypassing the provisions of
Indian Evidence Act. It is clear from the crossexamination of said
complainant made by the defence that he had not supported the case of
the prosecution and on the contrary, has admitted that on the date of
incident at night, his aunt Sumliben Kevjibhai Nayak PW 9 at Exh. 30
had come to his house and declared that his uncle has passed away
and they have to visit the place during night in darkness where the dead
body of the uncle was lying at about two kilometers away from their
house. The complainant has deposed that at the time of incident, he
was at his home and no one has informed about the incident and he has
also not gone to the place of incident. He has deposed that he had not
seen any quarrel having taken place on the road. He has further
deposed that he did not see as to who has inflicted the stone blow to
whom and killed the deceased. He has further deposed that he had
doubt that the appellant had killed the deceased because of the quarrel
relating to the sister of the appellant and the son of the deceased. Now
if we peruse the paragraph nos. 3 and 4 of the P.W. No. 8 complainant
at Exh. 22 as referred above by refreshing the memory the questions
which had been put in his mouth by learned APP he has deposed that
at the time of incident, he was at home and at the that time, his aunt
Sumliben called him and told that deceased had gone to take tobacco
and the appellant had chased him accordingly. Therefore, they rushed
to the place of incident where there was scuffle between the appellant
and the deceased and because of which the appellant inflicted blow of
the stone on the head of the deceased as a result of which the
deceased fell down and at that time the appellant picked up another big
stone and hit the deceased and run away from the place of incident
cannot be considered for the reasons referred here in above and
otherwise also apparently two contradictory versions have forthcoming
on the record which creates doubts. Thus, it is clear that the evidence of
the complainant as referred hereinabove, is full of suspicion and it
creates doubt about the veracity of the testimony of the said witness.
18. Sumliben Kevjibhai Nayak, P.W. 2, at Exh. 30, has deposed that
when her deceased husband was going to take tobacco by passing
through the house of the appellant, the appellant chased him. At that
time she was at home and she rushed to the place of incident after
hearing the shouts, “maro maro” but the appellant had run away from
the place of incident after beating her husband. She has further stated
that she had not heard the conversation between the appellant and the
deceased. The deceased died because of pelting of stone on his head
by the appellant as a result of severe injuries. She has further stated
that she could identify the stone used in giving blow on the head of the
deceased. In the Court, she had identified the muddamal stone.
19. In light of the same, it appears from paragraph no. 5 of his
evidence that the contradictions which have been emerged in the said
deposition has been proved in the crossexamination by the defence
side showing the statement of the said Sumliben Kevjibhai Nayak
recorded by the police. On going through the deposition of investigating
officer Ashok Kumar Umedsingh Tapariya which has been recorded as
PW 12 at Exh. 29, it appears that he has admitted in the cross
examination that in the statement of wife of the deceased it was not
stated by her that her husband had gone to village to bring tobacco. It
was further not stated by her that to purchase tobacco from the shop
situated in the village one has to pass through the house of the
Appellant. She had not stated when she was at her home after hearing
the shouts “maro maro” they had gone. She had not stated that when
they reached there accused had run away after beating deceased. The
above contradictions are in my view are the vital contradictions
forthcoming on the record which have been duly proved but the learned
trial judge had neither touched nor discussed. The above deposition of
the wife of deceased does not inspire any confidence. Thus, there
appears major and vital contradictions in the evidence of the
complainant which is fatal to the case of the prosecution.
20. On going through the deposition of PW 15 Kavliben Gurjibhai
Nayak, who is wife of the complainant, recorded vide Exh. 25, it
appears that without declaring the said witness as hostile, the questions
appear to have been put in the mouth of the said witness for
recollecting her memory and same procedure has been adopted while
examining the complainant, PW 8 at Exh. 22 referred as hereinabove
and from the said deposition also, nothing substantial has come out
against the appellant.
21. Thus, in my view, simply because blood stains of the blood group
of the appellant have been found on the clothes of the deceased as well
as on the stone, it cannot be said that the charge framed against the
appellant has been proved beyond reasonable doubt. More particularly
when it has come in cross examination of complainant that police had
been called by Ranjitbhai and police has come in the night. Ramjibhai
and Jayantibhai both are working together and who had written the
complaint, which had not read over to the complainant. The prosecution
has not examined either Ramjibhai or Jayantibhai. Thus it appears that
the learned trial judge, in my view held guilty to the appellantaccused
on pure moral conviction and the same cannot take place of legal
conviction in absence of legal proof and as referred herein the Hon’ble
Supreme Court has specifically held that howsoever grave the alleged
offence may be, otherwise stirring the conscience of any court,
suspicion cannot take the place of legal proof. The learned Additional
Public Prosecutor is unable to show how the stick has come as
Muddamal because none has deposed anything nor any document is
there on record to show that the stick was recovered as muddamal.
22. In view of the above this Court is of the opinion that the case
against the appellantaccused could not be proved by the prosecution
beyond reasonable doubt and hence, the appellant deserves to be
given benefit of doubt. Thus, the present appeal requires to be allowed
and appellant requires to be acquitted of the charges levelled against
him by quashing and setting aside impugned judgement and order.
23. In view of the above, Criminal Appeal is allowed. Conviction and
sentence imposed on the appellantaccused vide judgement and order
dated 28.04.2016 passed by the learned 3rd Additional Sessions Judge,
Chhota Udepur, in Sessions Case No. 18 of 2015 is hereby quashed
and set aside and the accused is acquitted of the charges levelled
against him by giving benefit of doubt. The accused is in jail and hence,
he is ordered to be set at liberty forthwith, if not required in any other
case.
24. In view of the above judgement and order, Criminal Misc.
Application No. 16536 of 2016 for suspension of bail does not survive
and is disposed of accordingly.
(G.B.SHAH, J.)
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