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IN THE HIGH COURT OF GUJARAT
Hon’ble Mr. Justice A.L. Dave & Hon’ble Mr. Justice Paresh Upadhyay
Nilay @ Nilesh Navinchandra Mehta
Versus
State of Gujarat
Criminal Appeal No. 1461 of 20061—Decided on 13/09/2012
Held :
Court has examined the record and proceedings in context of rival submissions and Court find that there is no direct or indirect evidence led by the prosecution to show presence of either A1 or A2 in proximity of time and place of the incident. The only evidence that is led by the prosecution is A1 being in possession of the mobile phone alleged to be in possessions of the deceased at the time of incident and A2 being in possession of the wristwatch, muddamal Article No. 6, which was also in possession of the deceased around the time of the incident. [Para ]
Now, if the evidence as to TI parade is seen, which is sought to be used for fixing the identity of the person who sold a mobile phone, it is clear from evidence of Kalpesh (Exh.40) where he admits during his cross-examination that before TI parade was held, he was called at the Police Station where A1 was present. He, therefore, had a chance to see A1 before identifying A1 in the TI parade. Identification of A1 by witness – Kalpesh in the TI parade, therefore, gets vitiated. [Para 8]
All that can be said to have been established is that this is the phone, which was given by Ranjit Vanjara to the deceased and which has been recovered by Police from Lalji. The factum of Lalji having come into possession of the phone from Kalpesh and Kalpesh having come into possession of it from A1, still remains doubtful and, therefore, the link is not established. [Para 13]
The foregoing discussion would show that the trial Court has overlooked the fact that the evidence led by the prosecution is incomplete and scanty. It does not complete the chain to connect the accused with the offence leaving no scope for hypothesis of innocence of accused. The circumstances do not establish with certainty that the accused and the accused alone could have committed this crime. The conviction, therefore, cannot be permitted to stand. [Para 18]
In the result, both the appeals are allowed. The judgment and order of conviction and sentence rendered in Sessions Case No. 5 of 2006 on 21/06/2006 by the learned Additional Sessions Judge, Fast Track Court No. 3, Surendranagar is set aside. The appellants are acquitted of all the charges levelled against them. [Para 19]
Law Laid Down :
In the case of murder based on circumstantial evidence prosecution must establish complete chain to connect the accused with the offence leaving no scope for hypothesis of innocence of accused.
A.L. Dave, J.— Rafik Ibrahimbhai Notiya (Muslim), appellant of Criminal Appeal No. 1742 of 2006 and Nilay @ Nilesh Navinchandra Mehta, appellant of Criminal Appeal No. 1461 of 2006, came to be tried by Sessions Court, Surendranagar in Sessions Case No. 5 of 2006, for offences punishable under Sections 302, 397, 201 r/w Section 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. They came to be convicted and sentenced as under:
Section Punishment
Section 302 and 114 of the Indian To undergo life imprisonment i.e.,
Penal Code. until they die, with fine of Rs. 5,000/,
in default, to undergo two years RI.
Sections 397 and 114 of the Indian To undergo ten years RI.
Penal Code.
Section 201 and 114 of the Indian To undergo two years RI with fine
Penal Code. of Rs. 2,000/, in default, to undergo
three months RI.
Section 135 of the Bombay To undergo three months RI.
Police Act.
All the sentences are ordered to run concurrently.
The decision was rendered by the Sessions Court on 21/06/2006, which is the subject matter of challenge in these appeals.
2. The prosecution case, in brief, is that two appellants along with one Raju Bhaiya, committed robbery on Rajkot-Limbdi Highway on 06/04/2005, between 9.00 p.m. and 11.00 p.m. In the robbery, they robbed one Mansurbhai Khumanbhai Kagda, driver of the truck No. GJ1AU1800, a mobile phone of NOKIA Company, his wristwatch and Rs. 2,500/in cash, and in that transaction, they committed murder of Mansurbhai Khumanbhai Kagda by inflicting knife blows on chest and throat. In this context, FIR was lodged by Virdasbhai Naranbhai, owner of the truck with Chotila Police Station and offence came to be registered. The Investigating Agency having found sufficient evidence against the present appellants and absconding accused – Raju Bhaiya, filed chargesheet against the appellants in the Court of learned JMFC, Chotila, who in turn, committed the case to the Sessions Court, Surendranagar and Sessions Case No. 5 of 2006 came to be registered.
2.1 Charge was framed against the present two appellants by the Sessions Court at Exh.6 for offences punishable under Sections 302, 397, 201 read with Section 114 of the IPC and Section 135 of the Bombay Police Act. The accused persons pleaded not guilty to the charge and claimed to be tried.
2.2 After considering the evidence led by the prosecution, the trial Court found that the prosecution was successful in establishing the charges levelled against the appellants and, therefore, recorded conviction. Hence these appeals.
3. Rafik Ibrahimbhai Notiya (Muslim) appellant of Criminal Appeal No. 1742 of 2006 was the Accused No. 1 and Nilay @ Nilesh Navinchandra Mehta, appellant of Criminal Appeal No. 1461 of 2006 was the Accused No. 2 before the trial Court. Since these two appeals arise out of the same judgment and order, they are heard together and are disposed of by this common judgment and for sake of convenience, the appellants are referred to by their original status as accused Nos.1 and 2 respectively.
3.1 Incidentally, it may be recorded that appellant Rafik Ibrahimbhai Notiya (Muslim) also preferred Criminal Appeal No. 1228 of 2007 which came to be withdrawn on 12/09/2012, without entering into merits.
4. We have heard learned Advocate Mr. Shirish Tolia appearing with Mr. K I Kazi, for the appellants and learned APP, Mr. Pandya, for the State.
5. Learned Advocate, Mr. Tolia submitted that the prosecution case depended on circumstantial evidence only. There is no direct evidence to connect the accused with the offence and the trial Court has believed the circumstantial evidence led by the prosecution to be sufficient to connect the accused with the crime. According to Mr. Tolia, the evidence led by the prosecution does not complete a chain of circumstances connecting the accused with the offence for several reasons.
6. Narrating those reasons, Mr. Tolia submitted that there is no evidence worth a name to show that either of the accus
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