R/CR.A/850/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 850 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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 ?
MANSUKHBHAI MAVABHAI PARMAR….Appellant(s)
Versus
STATE OF GUJARAT….Opponent(s)/Respondent(s)
Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR. YOGENDRA THAKORE, ADVOCATE for the Appellant(s) No. 1
MR RUTVIJ OZA, APP for the Opponent(s)/Respondent(s) No.1
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 22/09/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)
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1. Being aggrieved by the judgment and order of
conviction and sentence passed by the learned
Additional Sessions Judge, Gondal, Camp at Upleta
in Sessions Case No.76/10 dated 03.05.2011, the
appellantoriginal accused has preferred this
appeal under section 374 of the Code of Criminal
Procedure.
2. The following facts emerge from the record of the
appeal
2.1 That the appellantoriginal accused married
Sadhnaben @ Sudhaben somewhere in the year 2005.
The wife of the appellant Sudhaben lodged a
complaint being C.R. No. I29/10 for offences
under sections 323, 498A, 506(2), 302 and 201 of
IPC. It was alleged against the appellant that
after marriage, the appellant used to torture the
complainant mentally and physically because of
which she left the matrimonial house along with
her son Bhavesh to her parental house at
Bhayavadar. It was also further alleged by the
complainant that the appellant gave threat that
if any complaint is filed, he would kill her
brother. The complaint further recites that
before about two months, the appellant came to
the house of the complainant at Bhayavadar and
took away Bhavesh, her son. It is further the
case of the prosecution that about 67 days of
the accident, i.e., about 5 days before, on
12.07.2010, the appellant took his son Bhavesh
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aged 4 years from Bhayavadar to a place somewhere
near Arani village and threw him in an abandoned
well and on this premises, it was alleged that
the appellant has committed the said offence.
2.2 The FIR was lodged with Bhayavadar Police
Station, which was registered as C.R. No. I
29/10. The investigating officer investigated
the offence and the case was thereafter committed
to the learned Sessions Court, Gondal, Camp at
Upleta and registered as Sessions Case No.76/10.
The appellant did not plead guilty and preferred
to be tried and ultimately, charge was framed at
Exhibit 6. The statement of the appellantaccused
was recorded as provided under section 313 of the
Cr.P.C. The prosecution examined 16 panch
witnesses and documentary evidence was also
adduced in form of Inquest panchnama at Exhibit
9, panchnama of place of offence, Exhibit 10,
Panchnama of the muddamal clothes recovered at
Exhibit 13, demonstration panchnama at Exhibit
16, Arrest panchnama Exhibit 17, FIR Exhibit 21,
photographs at Exhibit 23, P.M. Note at Exhibit
27, Cause of Death Certificate at Exhibit 28,
Short Report at Exhibit 29, Letter of Circle
Inspector, Map and Panch Rojkam at Exhibit 31,
attendance register at Exhibit 36, Order of
investigation at Exhibit 38, Letter for
registration of accidental death at Exhibit 39,
Email to FSL, Rajkot at Exhibit 40, Form of
accidental death No.26/10 at Exhibit 41, Serious
offence report at Exhibit 42, Report for
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investigation of death at Exhibit 43, Yadi for
doing inquest at Exhibit 44, Yadi for taking DNA
test sample at Exhibit 45, Yadi for P.M. of dead
body at Exhibit 46, Letter for performing P.M. at
Exhibit 47, Letter for performing P.M.at Exhibit
48, Letter for receipt of P.M. Note at Exhibit
49, Report of FSL of investigation of place at
Exhibit 50, Outward for preparing map of the
local place at Exhibit 51, Yadi to Executive
Magistrate, Bhayavadar at Exhibit 52, Authority
letter at Exhbiti 53, Receipt issued by FSL,
Exhibit 54, Ravangi nondh of muddamal at Exhibit
55, Receipt of FSL at Exhibit 56, Letter written
for getting Final Cause of Death Certificate at
Exhibit 57, Letter written to FSL at Exhibit 58,
Letter written to FSL at Exhibit 59, Analysis
report of FSL at Exhibit 60, Analysis report of
FSL at Exhbit 61, Letter of FSL at Exhibit 62,
DNA report at Exhbit 63, Letter of PSI,
Jamkandorna at Exhibit 64, Information of
accused sent by PSI, Jamkandorna, Exhibit 65,
Birth certificate of deceased Bhavesh at Exhibit
66, Serological report of FSL at Exhibit 67. The
accused also filed written statements. The
learned Additional Sessions Judge after
considering the evidence on record, acquitted the
appellant for the offences under sections 323,
498A and 506 of the IPC, however convicted the
appellant for offences under sections 302 and 201
of IPC and sentenced for imprisonment for life
for offence under section 302 of IPC and
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imprisonment for one year for offence under
section 201 of the IPC and ordered that both the
sentences would run concurrently. No fine has
been imposed. Being aggrieved by the same, the
present appeal is filed.
3. Heard Mr. Yogendra M. Thakore, learned advocate
for the appellant and Mr. Rutviz Oza, learned APP
for the State.
4. Mr. Thakore, learned counsel appearing for the
appellant took this Court through the evidence on
record and so also impugned judgment an order of
conviction and sentence and has contended as
under
1) That the learned Sessions Judge has failed
to appreciate the evidence on record and has
wrongly convicted the appellant under
section 302 of the IPC and under section 201
of IPC.
2) Mr. Thakore contended that the prosecution
has not been able to even remotely prove the
motive. Mr. Thakore further contended that
it is impossible for any person to kill his
son without any reasons and on the contrary
there is evidence on record that the son was
being kept in the house of the appellant in
a very cordial manner and therefore, the
order of sentence and conviction deserves to
be quashed.
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3) Mr. Thakore contended that the well in
question is situated at a distance of 2530
kms from the house of the appellant where
the appellant stays with his mother and the
boy had fallen down in the well accidentally
and the appellant has been falsely
implicated in the offence of murder because
of ongoing dispute between the complainant
and her family and the appellant whereas the
appellant had already left Bhayavadar for
service at Rajkot. Mr. Thakore further
contended that the whole conviction is based
on theory of last seen together and whole
chain of circumstances is not at all
complete and in such circumstances, the
conviction of the appellant only on the sole
ground/theory of last seen together is not
permissible.
4) Relying upon the judgment of the Apex Court
in the case of Anjan Kumar Sarma vs. State
of Assam reported in AIR 2017 SC 2617, Mr.
Thakore contended that the appellant
deserves to be acquitted from all charges.
It was contended that thus, no motive is
there and the prosecution has not proved the
motive beyond doubt. Mr. Thakore further
contended that if the time and last seen
together is seen, the prosecution has not
proved beyond reasonable doubt as no exact
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time is proved. Mr. Thakore further
contended that even if evidence of medical
officer is appreciated, the same does not
give any exact time of the death and except
the theory of last seen together, no other
evidence is there on record and therefore,
sole reliance upon such weak piece of
evidence is not permissible.
5) It was contended by Mr. Thakore that the
conduct of the witness relied upon by the
Sessions Court is unnatural and benefit of
doubt should go in favour of the accused and
the accused deserves to be acquitted from
all charges by allowing this appeal.
5. Per contra, Mr. Oza, learned APP has submitted
that though prosecution case is based on
circumstantial evidence, the prosecution has been
able to prove that the chain is complete and the
dead body was found on 12.07.2010 and in fact the
same was informed by P.W. 6 Gajubha Dadubha
Chudasama. Mr. Oza also relied upon the
reconstruction of the crime and deposition of
P.W. 5 Ashokbhai Arjanbhai Vala, Exhibit 16 and
has contended that the Sessions Court has rightly
believed the case of the prosecution and has
rightly convicted the appellant for offences
under sections 302 and 201 of IPC. The learned
APP has also relied upon Exhibit 31, map prepared
by the revenue officer and has contended that
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considering the other piece of evidence, the same
corroborates with the other evidence and more
particularly the evidence of P.W. 9, Nanjibhai
Jivabhai Makwana, Exhibit 24 who has seen
appellant with his son passing nearby the scene
of offence. It was therefore contended that the
appeal is meritless and the same deserves to be
dismissed.
6. Upon perusal of the Record Proceedings and upon
considering the submissions made, it clearly
appears that the case of the prosecution is based
on circumstantial evidence. At the first
instance, it would be appropriate to refer to the
deposition of P.W. 6, Gajubha Dadubha Chudasama,
Exhibit 18. The said witness has deposed that
the incident happened during monsoon season and
he stated on oath that he is an agriculturist and
his agricultural land is situated at Arani
village in the sim of Bhayavadar and its survey
number is 476. He has also stated that there is
an old well in the said agricultural field and
the same is not registered in the revenue record.
He has further stated that while the bullocks
were grazing, when he peeped into the well, he
found that the dead body of the child was
floating. He also stated on oath that the said
well is 3035 feet deep. He has further averred
that after seeing the dead body, he informed the
police station and thereafter police personnel
came and took out the dead body from the well.
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He further averred that the dead body was of a
boy aged about 45 years. He also categorically
stated in his examinationinchief that he was
not aware who the boy was. He has also stated
that he did not know that the family members of
the boy belonged to Bhayavadar. He has stated
that he stays at village Sevantra. Even in his
crossexamination, he has not stated anything
further.
7. The complainant, P.W.7, was examined at Exhibit
20. In her examinationinchief, she has
narrated what is found in the first information
report. She has further averred in her
examinationinchief that after her husband,
i.e., appellantaccused left for Chavandi, she
stayed alone with her mother and brother and had
also talked about quarrel with the appellant
husband. She has further stated that about 15
days after the appellant took her son Bhavesh,
she inquired from one of his family member
Karabhai Budhabhai as to how is her son and she
was told that her son stays with her husband
appellant herein and her motherinlaw and both
are happy. She has further averred that after 2
3 days, she came to know that a dead body of a
child was found in an abandoned well near village
Arani and had also heard that the age of the boy
was 67 years. She has further averred that as
the age of her son was 4 years, no doubt was
created. She further says in her deposition that
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after 34 days, she called Karabhai on phone and
inquired about her son and she was informed by
Karabhai that her son is not seen since about 10
days and her husband Mansukhappellant herein is
also not seen in Chavandi since 34 days and that
it is heard that he has gone to Rajkot. She has
further averred that thereafter, she talked about
it with other members of the society who informed
that they should go to the police station and
inquire and the clothes and photographs of the
boy would be there and therefore, she along with
her mother and brother went to Bhayavadar Police
Station. It is further averred that on seeing
the photographs and the shirt, she identified the
photo and the clothes of her son. She has
further stated that thereafter one Nanjibhai
Parmar told her that he had seen her husband and
the boy together near the turn of Arani road.
She has further stated that she was informed that
he had seen them before the dead body was found.
She has further stated that thereafter, she
informed the police that her husband has killed
her son and filed a complaint. In her cross
examination, she has stated that she does not
know the exact date on which the incident has
happened. She has also stated in her cross
examination that during the time when she and the
appellant were together, they used to keep their
son properly. She has also admitted in her
crossexamination that she has not made any
complaint against her husband about consuming
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liquor and she was frequently beaten by him. She
has further denied the suggestion of the defence
that her son Bhavesh accidentally fell into the
well and she has also denied the suggestion of
the defence that the appellant has not killed her
son. She has also denied the suggestion put to
her by the defence that on the date of the
incident her son was going from Chavandi to
Bhayavadar and accidentally fell into the well.
She has also denied the suggestion that as there
is dispute with her husband, she is giving false
deposition.
8. Similarly, the prosecution has also examined P.W.
8, Ashokbhai Bhanjibhai Rathod, Exhibit 22. He
has almost narrated the same thing which is
narrated by P.W.7 in his crossexamination. In
his crossexamination, he has stated that the
house of his sister and brotherinlaw is about 8
streets away and has also admitted that he has no
idea about the quarrel between the appellant and
his sister. He has further stated in his cross
examination that she used to come to parental
house along with Bhavesh. He has also stated
that as there was quarrel between his sister and
brotherinlaw, i.e., appellant, and thereafter
he went to village Chavandi. He has denied the
suggestion of the defence that as there is
dispute with the appellant with his brotherin
law, even though Bhavesh has accidentally fell
into the well and has died, in order to falsely
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implicate the appellant, he has given false
deposition. He has further admitted in his
crossexamination that he has not seen the
appellant throwing Bhavesh into the well.
However, he admits that he came to know the said
incident from others, i.e., hearsay.
9. The prosecution has also examined P.W. 9,
Nanjibhai Jivabhai Makwana, Exhibit 24. The said
witness has stated in his crossexamination that
he stays at Bhayavadar village in Holidhar area.
He has stated that he stays about 34 streets
away from the appellant’s house. He has further
stated that the name of his wife is Savitaben and
that his daughter is married at village
Jamtimbdi. He further states that he knows the
appellant because he stays in the neighbourhood.
He has further stated that he had gone to Timbdi
at his daughter’s place from there to village
Arani. He has further averred that he and his
wife had come on the motorcycle and as it was
raining, they stopped at Arani for some time. He
has further averred that while coming to
Bhayavadar, substation of GEB is situated and
their he saw appellant with his son Bhavesh. He
has further stated that he saw both of them
walking and that the appellant blinked when he
saw the said witness as well as his wife. He has
further stated that thereafter they came to
Bhayavadar. He has further averred that
thereafter, after few days, he heard that the
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appellant had thrown the deceased into the well
and killed him. In his crossexamination, he has
stated that distance from Jamtimbdi to Bhayavadar
is 17 kms. He has also stated that in order to
cover the said distance on motorcycle, time of
half an hour would be consumed. He has further
stated that he left the house of his daughter at
about 5.00 O’clock in the evening for coming to
Bhayavadar. He further stated that distance from
Timbdi to GEB substation is 16 kms. He has
further stated that for coming from Jamtimbdi to
GEB substation would consume about 20 minutes.
He has further stated that because of rain he
stopped at village Arani for about half an hour.
He has further admitted in his crossexamination
that the complainant and her family members
belong to his caste. He has also admitted that
they are their relatives. He has further denied
the fact that because of rain, there was not
movement on the road. He has also denied that
when he came, at that moment, he had seen no one.
He has admitted in his crossexamination that he
has not seen the appellant throwing deceased
Bhavesh into the well. He has stated further
that however as they met him on the road, because
of the same, on presumption that the appellant
has killed Bhavesh by throwing him into the well,
such deposition is made on presumption.
10. The prosecution has examined P.W.10 Dr. Shailesh
Dhanjibhai Bhuva at Exhibit 26. The said Doctor
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had performed postmortem of the dead body of the
deceased. From the examinationinchief, it
appears that the said witness has narrated the
condition of the dead body. He has specifically
stated in his examination that no injuries were
found and no fracture was found and there was no
external injuries. He has also opined that the
time of death of the dead body may be between 5
to 15 days before the date of postmortem. In his
examination he has stated that the cause of death
is drowning. In his crossexamination, he has
specifically stated that the body parts are
vanished may be because of the aqua animals. The
prosecution has also examined Circle Inspector
Govindbhai Lakhmanbhai Bariya, P.W.11 at Exhibit
30. He has prepared the map and has accepted the
fact that the map was prepared by visiting the
scene of offence. Nothing is found from the
deposition of the said witness. Similarly, the
prosecution has also examined Jemabhai Ukabhai
Samaliya, P.W. 12 at Exhibit 32. The said
witness has stated in his crossexamination that
he pulled the dead body from the well. He has
stated that he knows how to swim and pulls up the
dead body from the well. The prosecution has
further examined Mansukbhai Ugabhai Parmar, P.W.
13, Exhibit 33. The said witness has stated that
he stays at village Chavandi and that the
appellant was also staying at village Chavandi
and he knows him. The said witness has also
stated that he knows Parshottam Bhanabhai Patel
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and he keeps partnership in the agricultural
operations. He has stated that on 06.07.2010,
while he was going to his agricultural field, he
met Sureshbhai on motorcycle who had informed him
that he wants to go to Arani. He has further
stated that he got down near his field. At that
time he saw appellant and his son. He has stated
that the police informed him that the appellant
has killed his son. He has admitted in his
crossexamination that he is not aware as to
where the appellant and his son were going. He
has also admitted that he does not have any
personal information about the incident,
however, he came to know about the same as the
police informed him. The prosecution has also
examined Sureshbhai Tejabhai Akbari, P.W.14,
Exhibit 34. The said witness has stated in his
crossexamination that he stays at Chavandi
village and he knows the appellant as he stays at
village Chavandi. He has further stated that on
06.07.2010 while he was going on his motorcycle
from Chavandi to Arani, he met Mansukh Ugabhai
Parmar, p.w.13 and gave him lift till his
agricultural field and at that moment he saw
appellant and his son going towards Arani village
and as he asked for lift on his motorcycle, he
dropped the appellant and his son at the bus
station of Arani and after staying at the house
of his sister, he came back to village Chavandi.
He has further stated that the police came
afterwards and informed him that the accused
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Mansukhbhai has thrown his son into the well and
in his crossexamination, he has stated that
Chavandi is a small village and the deceased boy
was staying at the village Chavandi. He has
admitted the fact that after dropping the accused
at village Arani, he was not aware where he
wanted to go. He has also stated in the cross
examination that after he dropped the appellant
and his son at village Arani, he is not aware
where they had gone. He has admitted the fact
that he does not have any personal information
about the incident. The prosecution has also
examined Sagarbhai Bharatbhai Kalariya, P.W. 15
at Exhibit 35. The said witness has stated that
the appellant had approached him on 08.07.2010
for some work as a daily wager and he filled in
the form as provided under the Rules and that the
appellant worked in his factory at Rajkot in the
carting department as helper from 08.07.2010 to
21.07.2010. He has also stated that he came to
know about the incident when he read in the daily
newspaper. He has also produced on record at
Exhibit 36, the attendance register. In his
crossexamination, he has stated that before
offering the job to the appellant, he had
inquired about his name, address and his
experience. He has also admitted that from the
appearance, the appellant Mansukhbhai appeared to
be a good person and therefore, he had kept him
in service. He has also admitted the fact that
for whatever days appellant worked with him, he
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worked in satisfactory manner. He has also
admitted that he knows appellant because he was
working in his factory. The prosecution has also
examined P.W. 16 Shashikant Amrutlal Joshi at
Exhibit 37. In his examinationinchief, he has
narrated the manner in which the investigation
has taken place on the complaint filed by the
original complainant. He has also stated that it
has not come on record that the appellant gave
any complaint about his missing son. In cross
examination, he has admitted the fact that during
the investigation it revealed that there was
dispute between the appellant and his wife and
the complainant was staying at her parental
house. He has denied the suggestion that only on
presumption the complainant has filed the
complaint. He has stated that he can state the
date on which the incident took place, however,
he cannot exactly say time when it has happened.
He has also stated in his crossexamination bus
station of Arani village is at a distance of 3 to
4 kms from the scene of offence. He has also
admitted that on the eastern side of the road,
Gangeshwar Mahadev Temple is situated. He has
denied the fact that the deceased child died
because of the accident by falling into the well.
He has admitted the fact that he has not taken
any statements of the persons staying in
neighborhood of the deceased child. He has
denied the suggestion of the defence that even
though it is an accident, a false complaint is
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lodged. He has admitted in his crossexamination
that during investigation, there is no eye
witness who has seen the appellant throwing the
deceased into the well. In addition to that,
the prosecution has also examined P.W. 1 Ranubha
Lakhubha Chudasama, P.W. 2 Arvindbhai Lakhmanbhai
Vagh, P.W. 3 Hareshbhai Gandubhai Moradiya, P.W.4
Hasmukhbhai Nathubhai Parmar and P.W.5 Ashokbhai
Arjanbhai Vala, the panch witnesses. However,
looking at the deposition, except the fact that
same relates to the respective stages of
investigation, nothing turns out of that
evidence. Over and above this, the prosecution
has also relied upon the serological report,
Postmortem note and inquest panchnama.
11. Upon considering the submissions made and the
evidence as discussed hereinabove, it is an
admitted position that the whole case against the
appellant is based on circumstantial evidence and
on the theory of last seen together. P.W. 16
Shashikant Amrutlal Joshi, the investigating
officer, Exhibit 37 has clearly admitted in his
crossexamination that no eyewitness was found.
It also deserves to be noted that though charge
was framed under sections 323, 498A, 506 of IPC,
the Sessions Court itself has come to the
conclusion that the prosecution has not been able
to prove the same and therefore, the aspect which
is under consideration by this Court in this
appeal is in relation to offence under sections
302 and 201 of IPC. The record clearly
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establishes that the appellant brought his son
from Bhayavadar to his village Chavandi and was
staying with his father. Even in the deposition
of the complainant, P.W. 7, it has come on record
that when inquiries were made about her son
through a near relative, the complainant was
informed that the boy is hale and hearty.
Similar version comes from the evidence of P.W.
8, brother of the complainant Ashokbhai
Bhanjibhai Rathod. The whole case of the
prosecution is therefore based on the theory of
last seen together based upon the oral deposition
of P.W. 9, P.W. 13 and P.W. 14. In the
deposition of P.W. 9, there is no exact date
whereas it is pertinent to note that in the
deposition of P.W. 13 and P.W. 14, it would be
evident that both the prosecution witnesses have
stated the date 06.07.2010. However, none of the
witnesses have stated that they have any personal
information about the appellant throwing his son
into the well. All the three witnesses have not
been able to bring home as to whether the
appellant was proceeding with his son towards the
well. There is no other evidence as rightly
pointed out by the learned counsel for the
appellant to even remotely show much less prove
that any motive to kill his son was present. On
the contrary, as observed hereinabove, the
appellant is found to be keeping his son in a
pleasant manner at his residence. Even if the
deposition of all the three prosecution witnesses
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viz., P.W. 9, 13 and 14 are looked at as a whole
and if it is compared with the deposition of P.W.
11 Govindbhai Lakhmanbhai Baraiya, Exhibit 30 and
the map which is heavily relied upon by the
learned Assistant Public Prosecutor at Exhibit
31, the same does not in fact match with the
version of the witness. On reappreciation of
this piece of evidence and comparing it with the
scene of offence from the panchnama of the scene
of offence at Exhibit 10, the same are poles
apart and the prosecution has not been able to
complete the chain of circumstances which may
lead to a finding that as per the chain of
evidence and coupled with the theory of last seen
together, the appellant is guilty. The learned
Sessions Judge has though recorded that there is
no eyewitness to the incident, the chain should
be complete, however, has failed to consider the
evidence and has wrongly come to the conclusion
that the same leads to circumstances which proves
the guilt of the appellant. The learned Sessions
Judge has also therefore wrongly come to the
conclusion on wrong appreciation of evidence more
particularly of the Circle Inspector at Exhibit
30, map at Exhibit 31 as well as oral deposition
of Nanjibhai Jivabhai Makwana at Exhibit 24 and
Exhibits 33 and 34 and has wrongly come to the
conclusion that the incident has taken place on
06.07.2010. As observed hereinabove, in the
first statement made by Nanjibhai, P.W. 9, at
Exhibit 24, there is no mention about the date
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and that improvement is made by P.W.13 and P.W.
14, Exhibits 33 and 34. Even if the date
06.07.2010 is taken from the deposition of P.W.
13 and P.W. 14, the evidence of Doctor examined
independently and upon reappreciation of it
clearly mentions that death has occurred because
of drowning, which cannot be corelated to
06.07.2010, merely on the deposition of the
Doctor that the incident took place between 515
days. Even otherwise, as decided by the Apex
Court in the case of Anjan Kumar Sarma (supra),
the Hon’ble Apex Court has observed thus
“21. It is clear from the above that in a
case where the other links have been
satisfactorily made out and the
circumstances point to the guilt of the
accused, the circumstance of last seen
together and absence of explanation would
provide an additional link which completes
the chain. In the absence of proof of other
circumstances, the only circumstance of last
seen together and absence of satisfactory
explanation cannot be made the basis of
conviction. The other judgments on this
point that are cited by Mr. Venkataramani do
not take a different view and, thus, need
not be adverted to. He also relied upon the
judgment of this Court in State of Goa v.
Sanjay Thakran, (2007) 3 SCC 755 in support
of his submission that the circumstance of
last seen together would be a relevant
circumstance in a case where there was no
possibility of any other persons meeting or
approaching the deceased at the place of
incident or before the commission of crime
in the intervening period. It was held in
the above judgment as under:
“34. From the principle laid down by this
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Court, the circumstance of last seen
together would normally be taken into
consideration for finding the accused
guilty of the offence charged with when
it is established by the prosecution that
the time gap between the point of time
when the accused and the deceased were
found together alive and when the
deceased was found dead is so small that
possibility of any other person being
with the deceased could completely be
ruled out. The time gap between the
accused persons seen in the company of
the deceased and the detection of the
crime would be a material consideration
for appreciation of the evidence and
placing reliance on it as a circumstance
against the accused. But, in all cases,
it cannot be said that the evidence of
last seen together is to be rejected
merely because the time gap between the
accused persons and the deceased last
seen together and the crime coming to
light is after (sic of) a considerable
long duration. There can be no fixed or
straitjacket formula for the duration of
time gap in this regard and it would
depend upon the evidence led by the
prosecution to remove the possibility of
any other person meeting the deceased in
the intervening period, that is to say,
if the prosecution is able to lead such
an evidence that likelihood of any person
other than the accused, being the author
of the crime, becomes impossible, then
the evidence of circumstance of last seen
together, although there is long duration
of time, can be considered as one of the
circumstances in the chain of
circumstances to prove the guilt against
such accused persons. Hence, if the
prosecution proves that in the light of
the facts and circumstances of the case,
there was no possibility of any other
person meeting or approaching the
deceased at the place of incident or
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before the commission of the crime, in
the intervening period, the proof of last
seen together would be relevant evidence.
For instance, if it can be demonstrated
by showing that the accused persons were
in exclusive possession of the place
where the incident occurred or where they
were last seen together with the
deceased, and there was no possibility of
any intrusion to that place by any third
party, then a relatively wider time gap
would not affect the prosecution case.”
As we have held that the other circumstances
relied upon by the prosecution are not
proved and that the circumstances of last
seen together along with the absence of
satisfactory explanation are not sufficient
for convicting the accused. Therefore the
findings recorded in the above judgment are
not applicable to the facts of this case.”
12. Therefore, the conviction cannot be based solely
on the theory of last seen together and none of
the facets of chain of circumstances which are
unfolded by prosecution witness does not lead to
complete the chain of circumstances, which
creates doubt about the involvement of the
appellant and benefit of such doubt would
therefore go in favour of the appellant. Even
upon reappreciation of the evidence of P.W. 16
Exhibit 37, the investigating officer, the same
cannot be used as a link to show that the chain
is complete.
13. In the case on hand also, the circumstances
relied upon by the prosecution are not proved
along with theory of last seen together and
therefore, the appellant is entitled to benefit
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of doubt as the chain of circumstances does not
lead to the guilt against the accused and the
same is not complete.
14. Consequently, the appeal is allowed. The judgment
and order of conviction and sentence passed by
the learned Additional Sessions Judge, Gondal,
Camp at Upleta in Sessions Case No.76/10 dated
03.05.2011 is hereby quashed and set aside and
the appellant is directed to be set at liberty
forthwith if not required in any other case.
(R.M.CHHAYA, J.)
(BIREN VAISHNAV, J.)
bjoy
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