(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. The appellant came to be tried by Sessions Court, Dahod in Sessions Case No.103 of 2005 of the offence of murder of his wife viz., Shardaben by throttling her to death on 27.05.2005 in his home at Kulpur, Tal. Limkheda, District Dahod. The trial Court convicted him and sentenced him to undergo imprisonment for life with fine of Rs.2,500/-, in default, further imprisonment for six months. Hence, this appeal.
2. As per the prosecution case, the appellant and his wife Shardaben were staying at village Kulpur along with the parents of the appellant. On 27.05.2005, PW1 - Dutiya Jethrabhai, when came out of his house, saw Shardaben lying dead on the ground. He, therefore, informed the police about the same. The offence came to be registered and investigated and ultimately, charge-sheet came to be filed in the Court of Judicial Magistrate, First Class, Limkheda, who, in turn, committed the case to the Court of Sessions and Sessions Case No.103 of 2005 came to be registered. Charge against accused - appellant was framed at Exh.1 for the offence of murder of his wife, to which, he pleaded not guilty and came to be tried. The trial Court found ample evidence to connect the accused with the crime and hence, recorded conviction and awarded sentence as stated hereinabove.
3. We have heard learned advocate Mr. Pratik Barot appearing for the appellant and learned APP Mr. Dabhi appearing for the respondent - State. We have examined the record and proceedings in the context of rival submissions.
4. Learned advocate Mr. Barot submitted that there is no direct evidence adduced by the prosecution to connect the accused with the crime. He submitted further that the circumstantial evidence does not complete the chain of circumstances to connect the accused with the crime. Mr. Barot submitted that according to first informant, the dead body was lying on the ground. The first informant is a neighbour of the appellant who claims that he saw the dead body lying on the ground when he came out of his house. However, if the inquest panchnama is seen, the dead body is shown to be lying inside the house. How this dead body got shifted from the ground to the house, is not explained by the prosecution.
4.1 Mr.
Barot submitted that the incident is alleged to have occurred at about 11-00 am in the morning. That is not the time when male folk of the house can be presumed or legitimately inferred to be inside the house. There is, as such no evidence to show that the appellant and his wife were alone in the house.
4.2 The mother of the appellant has not been examined by the prosecution and there is no evidence on the aspect of her location at the time of the alleged incident. The father of the appellant is examined, but, has not supported the prosecution case.
4.3 Mr.
Barot further submitted that the parents of the deceased have deposed to the effect that there was no dispute between the spouses viz., the appellant and the deceased. Last but not least, the evidence of the investigating officer reveals that one of the witnesses, in his statement before the police, had disclosed that the appellant had gone to attend his duty as a member of Band Party in the morning. This aspect supports the further statement of the accused claiming alibi. The possibility of the accused being absent from the house when the incident occurred cannot be ruled out. Mr. Barot submitted that benefit, in such circumstances, may be given to the accused appellant and he may be acquitted of the charges levelled against him.
5. Learned APP Mr. Dabhi has opposed this appeal.
6. We find that the prosecution has examined Dutiya Jethra as PW1, at Exh.5. He is the first informant. He, in his examination-in-chief, says that when he came out of his house, he saw Shardaben lying on the ground. He says that he knows nothing beyond this.
6.1 This evidence if seen in the context of inquest panchnama, Exh.11, inquest panchnama would reveal that the dead body was lying inside the house. We may add at this stage that there is no evidence led by the prosecution to show as to how the dead body, which was seen by PW1 lying on the ground, got shifted to a place inside the house.
7. The evidence of PW1, if read in the context of panchnama of the place of offence and the map - Exh.20, drawn, it is clear that the house of PW1 is towards west of the house of the deceased which appears to be a hind portion of the house of the deceased. If the dead body was lying in the house where it is shown to have been lying, PW1, upon coming out of his house, could not have seen the dead body. Differently put, PW1 could have seen the dead body while coming out of his house only if the dead body is lying on the ground outside the house. Therefore, either PW1 is not true when he says that he saw the dead body lying outside the house or the inquest panchnama is not correct when it says that the dead body was lying inside the house. There is no explanation or evidence on the aspect that the dead body was shifted inside the house after it being noticed by PW1.
8. We may also add that the first informant, after having seen dead body in the morning, lodges the FIR at 16-30 hours in the afternoon and no explanation is given for this delayed action.
9. It is also required to be noted that the appellant and the deceased were married for about a year before the incident and there is no evidence to show that the relationship was very unhappy, of course, there is evidence to show that there were some disputes between the spouses. However, according to the parents of the deceased, as they have firmly deposed, there were no disputes between the spouses. The appellant, therefore, had no motive to commit murder.As such, there is not an iota of evidence to support the prosecution version that the appellant committed this offence with a view to facilitate his maintaining illicit relationship with some woman.
10. Considering the evidence as a whole, possibility of the appellant being not present in the house cannot be ruled out. The possibility of evidence having occurred outside the house, cannot be ruled out. There is no explanation worth to explain how the dead body travelled from outside the house to inside the house. There is an evidence of parents of deceased to show that the deceased and the appellant did not have any dispute and last but not least, the possibility of appellant having gone to attend his duty in Band Party cannot be ruled out, because, the investigating officer also admits that he got information on this lines during the night. These aspects are not considered at their proper perspective by the trial Court. The appeal, therefore, deserves to be allowed.
11. The appeal stands allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.1, Dahod on 22.12.2005 in Sessions Case No.103 of 2005 for the offence punishable under Section 302 of the Indian Penal Code is hereby set aside. The Appellant - Arvindbhai Balvantbhai Bariya is acquitted of the charges levelled against him. He shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to him.
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[A.L.
Dave, J.] Sd/-
[A.J.
Desai, J.] #MH Dave Top