(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of the present appeal, appellant - original accused has challenged the judgment and order dated 7.2.2006, passed by the learned Additional Sessions Judge, Fast Track Court No.2, Patan, in Sessions Case No. 31 of 2005, by which he has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced for life imprisonment and fine of Rs.5,000/- and in default, to undergo simple imprisonment for one year.
2 Brief facts arising from the case are as under:
That one Vaikuntahpuri Amarpuri Goswami, father of the appellant - accused lodged a complaint on 4.4.2005 with Sami Police Station alleging that the appellant had demanded money from him. On refusal, the appellant got annoyed and gave a push to his wife i.e. the mother of the accused. He asked his son to wait for some time and assured him that he will get the money from the village. After getting money from village, he gave Rs. 1,000/- to the accused and after getting the same accused left the house. After this episode, complainant also left his house and went to his farm. It was further alleged by the complainant that when he returned to his home at about 2.30, he saw that his wife had sustained several injuries on her person and was lying on a cot in pool of blood. He got information that appellant had killed his wife. On seeing her dead body, the complainant filed the aforesaid complaint with the police. Pursuant to the complaint, the Investigating Officer proceeded with the investigation and recorded several statements of witnesses who claimed to have seen the accused person going in a bus having blood on his hand. The appellant- accused was arrested on 6.4.2005. Having found sufficient material against the accused, the Police Officer filed a charge sheet in the court of learned Judicial Magistrate, First Class, Harij-Sami, who in turn committed the case in the court of learned Sessions Court at Patan. The learned Sessions Court framed charge at Exhibit-4 against the accused and on his denial to the same, the Sessions Court proceeded with the trial. The Trial Court after considering the depositions and documentary evidence on record, came to the conclusion that the appellant-accused has committed offence under Section-302 of the IPC and convicted and sentenced him, as aforesaid.
3 Learned Advocate Ms. Sadhana Sagar appearing for the appellant has assailed the judgment of the Trial Court on several grounds. The first contention raised by her that there is no eye witness to the incident and, therefore, the prosecution case depends only on circumstantial evidence, however, the circumstantial evidence produced on record does not complete the chain to connect the accused with the crime. She further submitted that the witnesses through whom the alleged discovery of clothes worn by the accused and discovery of weapon at the instance of the accused used in the offence, are not proved through the witnesses and, therefore, also the learned Trial Court ought not to have convicted the appellant - accused.
She further submitted that the complainant, father of the accused, as per his say, left the house after giving Rs. 1,000/- to the accused, which was demanded by him and, therefore, there was no motive for the accused to kill his own mother. It was argued by her that the witnesses, on whom the prosecution has relied on, that they have seen the accused going in a bus having blood on his hand, have not supported the prosecution case and, therefore, in absence of any witness who has seen the appellant-accused near the vicinity of the house of the deceased, the learned Trial Court ought to have acquitted the appellant - accused.
4 On the other hand, learned Additional Public Prosecutor Mr. L.B. Dabhi, has supported the reasons assigned by the Trial Court for convicting the accused. He has submitted that the complainant is the father of the accused, who has given the complaint before the police about the incident alleging against his own son that in the morning some altercations took place about the money between him and his son in the house in the presence of deceased wife.
5 We have perused the record and proceedings and have also gone through the depositions of the witnesses.
6 It is an admitted position that deceased Maniben was found injured in the house where the complainant, deceased Maniben and appellant- accused were residing. As per the deposition of the complainant - Vaikuntahpuri Amarpuri Goswami, on the fateful day, in the morning, the accused demanded money and beaten him. Pursuant to the demand, the complainant gave Rs. 1,000/- to his son accused. Thereafter, his son left the house. He further deposed that the appellant-accused came back to the house at about 1'O clock and at that time he had gone to his field and his wife was all alone at home. In his examination-in-chief, he has stated that when he returned at home at about 2'O clock, he found his wife was dead. He presumed that his son had given blows to the deceased. In his cross-examination, he has admitted that he had gone to his field at about 11.30 a.m. and when he returned at home, he found his wife was dead. Now, it becomes apparent that from 11.30 a.m. to 2.30 p.m., he was not aware as to who visited his house and he presumed that his son had come back at home at about 1'O clock, but he has not seen him at the residence. Perusing his evidence, we are of the opinion that the complainant has presumed that since there was a dispute about the money, his son must have killed the deceased.
Now, considering the deposition of other two witnesses i.e. PW-3 Dahyapuri Gangapuri Goswami, examined at Exhibit-13 and PW-4 Ganeshpuri Bhagavanpuri Goswami, examined at Exhibit-14, it transpires that, they have not supported the case of the prosecution. They have not supported the prosecution by deposing that they had seen the accused having blood on his hand and coming out of the area where the accused as well as the deceased were residing, which was stated before the Police Officer.
7 In view of this factual aspect of the matter, it is established that there is no eye witness to the incident as well as any witness who has seen the accused going in his house at 1.00 O' clock or last seen the accused in the area of incident, for which the appellant - accused is charged of having committed murder of his own mother.
8 Now in absence of any direct evidence to connect the accused with the offence, we have to rely upon the circumstantial evidence and as held by catena of decisions that the circumstances must be of such a nature which would establish the complete chain for which the court has to believe that only accused person who is charged for the offence, has committed the offence.
9 The prosecution arrested the accused person and it appears from the panchnama of clothes of the accused that there were no blood stains apparently found from the clothes of the accused which were worn by him at the time of committing the alleged offence. The knife, which was discovered at the instance of the accused was found having blood stains on it. It is true that the serological report of Forensic Science Laboratory which would suggest that the blood stains of the deceased were found on the clothes of the deceased as well as on the knife which was discovered at his instance, but the panchnamas to that effect are not properly proved by the prosecution, since the panchas of these two panchnamas have not supported the case of the prosecution. Even, if, the panchnamas are proved through the Police Officer, in absence of any other cogent circumstance, the accused cannot be held liable for commission of offence, only on this circumstance.
10 Except the discovery panchnama of clothes and knife, no other evidence is available on record, which would lead to the conclusion that the offender of the commission of the present offence is only and only the appellant. In our view, the prosecution has failed to prove the case beyond reasonable doubt and therefore, the benefit of doubt must go to the accused and the appeal is required to be allowed and the appellant - accused is required to be acquitted from the charges levelled against him.
11 In the result, the appeal is allowed. The impugned judgment and order dated 7.2.2006, rendered in Sessions Case No.31 of 2005, by the learned Addl. Sessions Judge, Fast Track Court No.2, Patan, recording conviction of the appellant-original accused- GOSWAMI BABUPURI VAIKUTPURI for the offence under Section 302 of the Indian Penal Code and the sentence awarded to him is set aside and the appellant is acquitted of the charges levelled against him. Appellant-accused is in jail. He shall be set at liberty forthwith if not required to be detained in connection with any other offence. Fine, if any, paid, shall be refunded to him.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair Top