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2012 (3) GCD 1965 (Guj) (DB)
Hon’ble Mr. Justice D.H. Waghela &
Hon’ble Mr. Justice N.V. Anjaria
Shankerbhai @ Pagalgir Shuivcharni Ganeshbhai Purohit
Versus
State of Gujarat
Criminal Appeal No. 682 of 2004—Decided on 27/02/2012
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 — Bombay Police Act (Bom. Act No. 22 of 1951) — Section 135 — Murder — Conviction — Circumstantial evidence — Appreciation of — Finding as to — Sustainability — Considering the total evidence led by prosecution PW 1 complainant claimed to be in close knowledge of incident — On critical examination of his testimony Court found than it is wholly unreliable — His conduct post incident is also dubious — The weapon of offence recovered is dhariya but surprisingly the blood group found on the clothes of accused appellant and blood group on the supposed weapon were found to be different — Prosecution has also failed to establish any motive on the past of appellant to commit murder — In the facts the chain of circumstances leading to the proof of commission of offence by appellant is not established — As a result Court set aside the conviction of appellant and ordered to set him at liberty.
Held :
Considering the evidence before the trial Court, it is the complainant (PW-1 Exh.7), who claimed to be in close knowledge of the incident, and it is he who has informed and told everybody else about the incident of murder of Ramanbhai, and therefore, he is the mainstay for the account of the offence as well as for the whole prosecution case. [Para 5.2]
His claim that he saw the appellant running away from the place does not inspire confidence in view his own evidence in which he unequivocally stated that it was so dark that one could neither see nor identify anybody. The prosecution case is that he saw the appellant running away, heard the noise of something being thrown in the gutter, and then it was in light of torch that he found the victim in the injured condition. Thus, PW-1 proved himself to be a wholly unreliable witness. [Para 6.3]
The weapon recovered was a scythe (dhariya). The nature of injuries are found in the P.M. Note (Exh.46) and were described also by Dr. Anilkumar Bhagwat (PW-14 Exh.44). Surprisingly, the blood-group of the blood found on the clothes of the appellant and that of the blood on the supposed weapon were found to be different.
[Para 6.4]
The prosecution failed to establish by any evidence any motive on part of the appellant. In a case like the present one, where the evidence is only circumstantial, motive assumes importance. The absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Pannayar vs. State of Tamil Nadu, (2009) 9 SCC 152). [Para 6.8]
Law Laid Down :
In criminal case of circumstantial evidence there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with innocence of the accused and it must show that within all human probability the act must have been done by the accused.
N.V. Anjaria, J.—One Ramanbhai Shankarbhai was brutally killed in the dark of night on 10.12.2002. The appellant herein was charged for the offence of murder. The leaned Joint District and Additional Sessions Judge, Fast Track Court No. 3, Bharuch, upon trial in Sessions Case No. 25 of 2003 convicted the appellant for the offence under Section 302 of Indian Penal Code, 1860, and sentenced him to life imprisonment with fine of Rs. 500/- and in default of payment of fine, to further undergo simple imprisonment for 25 days. The appellant was acquitted of the offence under Section 135 of the Bombay Police Act.
2. The prosecution version was based upon the complaint (Exh. 8) filed by one Arvindbhai Babubhai Rathod. He was working with a transport company owned by one Yunusbhai, the office of which was situated at the place called Aamod cross-roads, and was posted to keep watch on the grass in the field of his master near a petrol pump named Archana Petrol Pump. The deceased Ramanbhai was also the employee of same Yunusbhai, and was engaged to keep watch on the machine kept to pump water from the canal passing on the North side of the road. According to the complainant, he was staying in a tin shed erected in the field. Near that place, the appellant Shankar Ganesh alias Pagalgir Shivcharan was having his tea cabin/cart, who used to stay and also sleep in the night in open near the cart.
2.1 The complainant stated that on the day of incident around 7 p.m., he sent the deceased Ramanbhai giving his cycle and asking him to go for meals, to which Ramanbhai responded that he would first go to the site of machine and would go for the meals afterwards. Ramanbhai went to the place of machine and on return told to the complainant that appellant had been threatening and stating that something ominous would happen (Aaje kaink kalu thashe). The complainant, therefore, asked Ramanbhai as to what ominous would happen, and Ramanbhai said that nothing more was told. The complainant thereafter went to his house at around 9.30 p.m. for taking meals on a cycle, and returned after about one hour and straight went to Archana Petrol Pump to have a beedi from cashier of the Pump Mahmoodbhai. After lightening beedi, went straight to the machine. When he was parking his cycle near the cabin of the appellant, the appellant started running away on seeing the complainant. The complainant Arvindbhai further stated that he heard noise as if some iron weapon was thrown in the nearby gutter. Therefore, he went near the tea cabin and saw in the light of a torch that Ramanbhai was lying in a bleeding condition. On being asked as to who injured him and why, he did not speak as his mouth was bleeding, but pointed towards the cabin of the appellant.
2.2 The complainant stated that he thereafter rushed to the petrol pump and informed one Babubhai Machhhi and police constables on duty present there, that his colleague Ramanbhai was killed by Shankar, who has absconded, and Ramanbhai was lying in bleeding condition. Thereupon Babubhai and two homeguards on duty accompanied the complainant and immediately took Ramanbhai to the Government Hospital in the jeep. There Ramanbhai was declared dead by the doctor.
3. The charge-sheet was filed for the offence punishable under Section 302 of IPC and Section 135 of Bombay Police Act, 1951, before the learned Judicial Magistrate (First Class), Aamod, and the case was then committed to the Sessions Court, Bharuch. The trial Court recorded documentary and oral evidence, examined 19 witnesses and convicted the accused for the offence of murder on the ground that there were good amount of circumstantial evidence to prove the offence against the accused.
4. Learned Advocate for the appellant submitted that the trial Court has erred in holding that the offence against the appellant was established on the basis of circumstantial evidence. He highlighted the inconsistencies, contradictions and improbabilities in the evidence on reco
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