These two appeals arise out of a judgment and order rendered by Sessions Court, Rajkot at Morbi in Sessions Case No.53 of 2004 on 30/11/2005 convicting the appellants for the offence of murder of one Prabhubhai on 26/07/2004 at about 10:30 a.m., near Nala Hanuman Primary School of Dhutari Vadi at Morbi, by inflicting knife blows on the deceased. 1.1 Both of them came to be convicted under Section 302 r/w Section 114 of the Indian Penal Code and sentenced to suffer RI for life with a fine of Rs.15,000/-, in default, to undergo RI for two years. The accused persons also came to be convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced to undergo one month SI with fine of Rs.500/-, in default, to undergo SI for seven days. A-1 has preferred Criminal Appeal No.149 of 2006, whereas A-2 has preferred Criminal Appeal No.150 of 2006. For the sake of convenience, appellants are referred to by their original status of being orig. accused No.1 and 2 respectively.
2. A-1 is in jail, whereas A-2 is admitted to bail by suspending the sentence during pendency of these appeals. Both the appellants are represented by learned Advocate Ms.Rekha Kapadia. The State is represented by learned APP, Mr.K L Pandya.
3. The prosecution case, in brief, can be stated thus:
3.1 On 26/07/2004, deceased – Prabhubhai Versibhai was passing by the place of incident in company of Vijaybhai Prabhubhai. When they reached near the school, they found that about four to five persons were sitting on the compound wall of the school. After reaching there, deceased – Prabhubhai stopped the motorcycle and addressed as to how are you, Jagdish. At that point of time, A-1 stepped down from the compound wall and inflicted knife blow upon deceased in the chest. The deceased, therefore, fell down from the motorcycle and started running. A-1 chased him and inflicted further three four knife blows on the deceased. Two three other persons joined Ashok, one of whom had a knife in his hand, one of them took away crutches of Vijay Prabhubhai. They started running and Vijay Prabhu could not chase them, as he was physically impaired. He gave an FIR with Morbi City Police Station, on the basis of which, offence was registered and case was investigated. At the end of investigation, the Police found sufficient evidence against A-1, A-2 and third person – Vijay Teja, but since he was found to be juvenile, he was proceeded against before the Juvenile Justice Board. Charge-sheet against A-1 and A-2 was filed in the Court of learned JMFC, Morbi, who in turn, committed the case to the Court of Sessions and Sessions Case No.53 of 2004 came to be registered.
4. Charge was framed against the accused at Exh.1 for offence punishable under Section 302 r/w Section 114 of IPC and Section 135 of the Bombay Police Act, to which both pleaded not guilty and claimed to be tried. At the end of trial, the trial Court found that the prosecution was successful in proving the case against the accused and recorded conviction and hence these appeals.
5. The prosecution has examined Vijaybhai Prabhubhai as PW No.9 at Exh.30. He narrates the story, almost on the line of FIR lodged by him saying that he and deceased were going on motorcycle. When they reached near the place of incident at about 9.30 O'clock, they found about four to five persons sitting on the compound wall of the school. The deceased stopped his motorcycle and addressed one of the persons as Jagdish. At that time, A-1 rushed to the deceased and inflicted a knife blow, which was landed on his chest. As a result, both of them fell down. Deceased got up and at that time, one of the persons caught hold of deceased and A-1 inflicted three four more blows with knife on the deceased. The deceased then escaped towards a narrow street. The witness claims that he jumped the compound wall and at that point of time, he heard Prabhubhai, deceased, shouting “help, help”. The witness states that he was set down and was not able to see anything. In the meantime, his brother-in-law Lavjibhai came to whom he asked to fetch crutches and to see him off. They found the deceased lying in the rivulet (Vokla) and he attributes that because the wife of the deceased had illicit relation with A-1, there were quarrels between them. The witness has been cross-examined at length, but most importantly, he admits that he had never seen any of the accused persons before the incident. The fact of his having not seen or identified A-2 is supported by the FIR as well as his deposition. But, somehow he has given name of A-1 in the FIR.
5.1 We are at loss to reconcile as to how he could have given name of A-1 in the FIR and prosecution has not been able to render any explanation for this. Learned APP, Mr.Pandya, however, contended that what is admitted in the cross- examination by eye-witness – Vijay is that he had not seen either of the accused before the incident. Meaning thereby that he had not seen and that he never knew them. Meaning that is sought to be given by learned APP can be given, but if the evidence of Investigating Officer Maganbhai Fakrubhai Jadav (Exh.51) is seen, where he has admitted that it was revealed during investigation that first informant never knew any of the accused before the incident. If this be so, the prosecution has failed to establish or to explain as to how first informant could give name of A-1 in the FIR.
6. So far as A-2 is concerned, no role is attributed to him, nor his name is given by first informant in his FIR, no TI parade is arranged by Investigating Agency and, therefore, we are at loss to understand as to how he came to be arrested and arraigned as an accused in this case. There is no evidence to attribute any overt act to A-2.
7. The upshot of the foregoing discussion is that prosecution has not been able to establish the link between A-1 and A-2 and the theory of eye-witness having seen and identified them committing the offence. The eye-witness seems to be an imaginer when he says that he jumped the compound wall of the school and when, according to him, he is able to walk only with the help of crutches and one of the crutches was taken away from him at the time of the incident. He seems to have imagined names of A-1 and A-2, otherwise there is no material on record to know as to how A-1 came to be named in the FIR and A-2 came to be arrested by Police. The entire investigation does not inspire confidence. The prosecution theory is difficult to palate and trial Court has overlooked this aspect while recording conviction.
8. In the result, Criminal Appeal No.149 of 2006 and Criminal Appeal No.150 of 2006 are allowed. The judgment and order of conviction and sentence rendered in Sessions Case No.53 of 2004 on 30/11/2005 by the learned Presiding Officer, Fast Track Court No.4, Morbi is set aside. The appellants are acquitted of all the charges levelled against them.
9. Since the org. accused No.1-Ashok Tejabhai Angechaniya (Appellant of Criminal Appeal No.149 of 2006) is in jail, he be set at liberty forthwith, if not required in any other case. The org. accused No.2 - Jenti Maganbhai Upsariya (Appellant of Criminal Appeal No.150 of 2006) is on bail, his bail bond shall stand cancelled. Fine, if paid by the appellants, is ordered to be refunded to them.
(A L DAVE, J.) (A J DESAI, J.) sompura