(Per :
HONOURABLE MR.JUSTICE N.V. ANJARIA) Criminal Misc. Application No.13010 of 2011 is filed by the State under section 378(1)(3) of the Code of Criminal Procedure, 1973 for grant of leave to appeal against judgment and order dated 30.06.2011 passed by the Fourth Additional Sessions Judge, Veraval in Sessions Case No.67 of 2006. Criminal Appeal No.1156 of 2011 is preferred by the State against that judgment, whereby the trial court has acquitted the respondents of the offences under Sections 302, 201 and 114 of Indian Penal Code, 1860 and Section 135 of Bombay Police Act, 1951. The application as well as the main appeal are before us.
2. Learned Public Prosecutor made available the copies of the evidence recorded before the trial court, enabling us to consider admission of the main appeal on merits. We have heard learned Additional Public Prosecutor in extenso, who took us through the evidence on record.
3. The prosecution case brought out in the complaint (Exh. 21) filed by one Devrajbhai Pancha, the father of the victim, was that he was staying with his family at Veraval in the area known as Nava Rabari Vada. His family consisted of his wife Kariben, two daughters, two sons and parents. Her sister Ramiben had come from her marital home on the day of incident. Opposite to the residence of the complainant, the house of Dhirubhai and Jasuben Kabadia, the respondents-accused was situated. On 09.06.2006 at around 3.45 p.m. when the complainant, his wife and his sister were present in their house, Kuldip, aged about 17, son of the respondents came to their house to call their son Kana aged about 7, to take him to his house to eat mango. At around 4.00 p.m., upon hearing some uproar in the house of Dhirubhai, the complainant started going towards Dhirubhai's house. Kuldip met him on the way. On reaching the house of Dhirubhai, the complainant found his son Kana lying injured and bleeding. At the place of scene, Dhirubhai, Dhirubhai's brother Gumangbhai and all members of family were present. On being asked, Dhirubhai stated that Kuldeep had stabbed Kana with knife and had gone away.
3.1 The complainant stated further in his complaint that Dhirubhai and his brother Gumanbhai took his son Kana to the hospital on their Honda motorcycle, where the doctor declared his son to be dead. According to the complaint, the reason for incident was that under an excuse of eating mango, the accused had called his son to their house and raising quarrel with him anyhow, Kuldeep stabbed Kana on the backside and caused fatal injury.
3.2 The complaint was registered at Veraval city police station as FIR No.77/07, which was against Kuldeep, the son of present respondents, who being aged less than 18 years, his case came to be transferred to Juvenile Court, Junagadh. Thereafter, upon report of the Investigating Officer, as the respondents were suspected of destroying the evidence, their names were added as accused persons and were charge-sheeted for the offences under Sections 302, 201 and 114 of IPC and Section 135 of Bombay Police Act, 1951.
4. The prosecution adduced oral and documentary evidence as listed in paragraph 3 of the impugned judgment. Total 17 witnesses were examined. The relevant evidence on record included the testimony of complainant, Devrajbhai Panchabhai (PW-2 Exh. 20), the father of deceased Kana, who deposed that on the day of incident, Kuldeep had come thrice to their house between 1.30 p.m. to 3.00 p.m. to call his son Kana, insisting that he should accompany him to his house to eat mangoes. On one occasion his uncle Gumanbhai had come and once both the respondents too had accompanied Kuldeep and requested to send Kana. At that time, one Sonu alias Kamlesh staying in the neighbourhood had come with whom Kana went to Kuldeep's house.
4.1 PW-2 further stated that at around 4.00 p.m., on hearing some hullabaloo in the house of Dhirubhai, when he went there, Kuldeep met on the way and he found his son Kana in bleeding condition in Dhirubhai's house. Dhirubhai stated that Kuldeep had stabbed Kana and had gone away towards Rayon factory. Dhirubhai and his brother Gumanbhai had taken the injured Kana to the hospital on their motorcycle, where the doctor declared Kana to be dead. PW-2 stated that he suspected that Kuldeep stabbed Kana for performing some occult rites, but also stated that he did not see any occult rites being performed in the house of Dhirubhai nor found anyone having come for such purpose. According to him both the families whose houses were opposite knew each other since last 8 years and had no enmity between them. He also stated that Kana and Kuldeep did not have any quarrel at any time before the incident.
4.2 Kariben (PW-7 Exh.38), the mother of the victim and wife of PW-2 as well as Raniben (PW-6 Exh.36), sister of PW-2 deposed on similar lines. PW-7 stated that when she and PW-6 went to the house of Dhirubhai, his wife Jasuben, mother-in-law and sister-in-law of Jasuben were present. She stated that Jasuben was washing the blood stains in the room situated opposite to the bathroom. PW-7 stated that they had then gone away to their village locking their house. In cross examination, she stated that family of Dhirubhai had left, leaving the house open. PW-6 Raniben stated that blood stains were not found in the first room but were in the second room of Dhirubhai's house, and Jasuben poured water and washed off the blood stains and went away.
4.2.1 PW-2, PW-6 and PW-7 in their evidence generally stated that they had seen Dhirubhai and his brother Gumanbhai coming out from their house carrying Kana in injured condition and had taken him to the hospital on their motorcycle. Panchabhai (PW-4 Exh.33), the grandfather of the deceased, having gone to purchase milk, was not present when the incident occurred and he came to know about the incident from a rickshaw driver. He was declared hostile.
4.3 Madanlal Sharma (PW-5 Exh.35), a neighbour, stated to have seen Dhirubhai and his brother coming out from their house. Dhirubhai's brother had lifted PW-2's son Kana in his hands and then had taken him to the hospital. Kamlesh Sharma (PW-8 Exh.41) alias Sonu, aged 16, who was the friend of Kana and Kuldeep and was staying in the same locality, was also examined. In his evidence, he stated inter alia that on the day of incident he too had accompanied Kana to the house of Kuldeep where they had eaten mangoes. He stated that at that time, parents of Kuldeep, his grandparents and uncle were present in the house. After eating mangoes, when they all were leaving the house and he was walking ahead of Kana, he suddenly heard a shout from Kana. On looking back he found Kana in bleeding condition. He stated that Kuldeep then went away towards Rayon factory and he went away to his house.
4.4 Dr.
Kishorkumar Hariyani (PW-1 Exh. 9), who conducted postmortem, deposed that the wound was inflicted on the left side of the back of the deceased. It was of the size of 2 cm X 1 cm and was cavity deep. According to him, the injury was serious and was such as to cause death in ordinary course. On being shown the mudhamal knife, he stated that injuries were possible by it.
4.5 The other witness examined was Nandlal Karunashakar Pandey (PW-13 Exh.
54), an astrologer by profession. According to him, one Jayantibhai Mehta had come to him on 11.06.2000 and with him Dhirubhai had come. Kuldeep too was there and Dhirubhai told that Kuldeep was under depression, was getting angry frequently and was used to play mischief. They had come for remedy and astrological advise, but he found that Kuldeep had been suffering from some ordinary mental illness and advised the cure by medicines.
4.6 Mansukhbhai Bhagwanjibhai (PW-9 Exh.42) was a panch witness staying in the neighbouhood at the time when the incident took place, who inter alia stated that he had noticed blood stains on the room situated at the backside of the house of Dhirubhai. The evidence of Rameshbhai Bharada (PW-12 Exh.53) and Dost Mohammad (PW-16 Exh.60) both Panch witnesses, is of no consequence to the prosecution case. Similarly, the evidence of Arvindbhai (PW-17 Exh.61), police inspector, Mohan Bharathi (PW-15 Exh.56), police personnel who registered the complaint, and Bharatsinh Gohel (PW-14 Exh. 55), who took statement of PW-12 in course of investigation, are also inconsequential.
5. It emerges from the evidence of all material witnesses that immediately after the incident, the accused-respondent No.1 and his brother took the victim out of their house and took him to the hospital on their own motor cycle. This conduct on the part of the accused weighed in their favour. It also dispels any doubt about the suggested intention on their part to commit, abet or cover the offence. Even otherwise, PW-2 himself in his evidence admitted that the family of the victim and the accused were neighbours since long time without history of any quarrel in the past. The victim and Kuldeep were used to play together.
5.1 The complaint had stated that the incident was an outcome of some quarrel between his son Kana and Kuldeep, whereas in his evidence, the complainant deposed that Kuldeep stabbed Kana with a view to perform some occult rite, for which again there was no credible evidence. The evidence of PW-12 on the contrary disproved any such reason. The motive behind the commission of crime could be said to be non-existent as far as the respondent-accused were concerned.
5.2 No conclusion of guilt could legally be arrived at on the basis of above evidence on record. The evidence on record did not suggest any participation of the accused in the commission or abetment of the offence. They were not shown to be in possession of knife used in the offence, nor were they proved to have any control over their minor son Kuldeep who used knife to stab the victim. No motive, much less any intention to commit the offence punishable under Section 302 of IPC was established, and there was not an iota of evidence by which respondent-accused could be linked with the alleged offences.
5.3 For the charge under Section 201 of IPC about destruction of evidence, only suggestion was found in the evidence of PW-7 and PW-6. It was deposed that Jasuben-respondent no.2 was seen by them to be washing off the bloodstains from the room of their house. Notwithstanding such claim the panch witness PW-9 in his evidence at exh.42 clearly stated that he found bloodstains in the room. Therefore, the limited aspect in the evidence of PW-6 and PW-7 that bloodstains were washed off by pouring water by the accused Jasuben became doubtful. In any case, such passing reference in evidence could not establish necessary ingredients of the offence under Section 201 of IPC.
5.4 The prosecution has not been able to show from evidence any overt act or any kind of activity on the part of the accused even to hint at their having attempted to cause disappearance of any evidence. The muddammal articles including the clothes and weapons were seized. They were seized from the place of offence. They were sent to the Forensic Science Laboratory for examination. By letter dated 25.09.2006 (Exh.88), the muddammal was returned by the laboratory after examining them. The report dated 07.09.2006 (Exh.81) by the Forensic Science Laboratory is also on record. Thus, the allegation against the accused-respondents of having destroyed the evidence was not proved.
6. In light of above discussed factual and legal position, the acquittal of the respondents recorded by the trial court is justified. There is no error in appreciation of evidence on part of the trial court. No material evidence is overlooked and no perverse finding is recorded. The view taken by the trial court is the only possible view considering the evidence before it. Accordingly, the impugned judgment and order of acquittal is not liable to be interfered with.
7. Therefore, the prayer for leave to appeal is rejected. Criminal Miscellaneous Application No.13010 of 2011 is hereby dismissed. The main Criminal Appeal No.1156 of 2011 also stands summarily dismissed.
[D.H.WAGHELA, J.] [N.V.
ANJARIA, J.] Amit Top