This group of appeals arises out of common judgment and order rendered by Sessions Court, Nadiad in Sessions Cases No.158 of 2005 and 159 of 2005 dated 9th May, 2006, convicting the appellants for the offences punishable under Section 302 read with Section 34, Section 120B read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code and sentencing them to rigorous imprisonment for life and fine of Rs.3,000/-, in default, rigorous imprisonment for six months; and rigorous imprisonment for life and fine of Rs.1,500/-, in default, rigorous imprisonment for three months; and rigorous imprisonment for three years with fine of Rs.1,000/-, in default, rigorous imprisonment for one month, respectively. 2. The appellant in criminal appeal No.1028 of 2006 – Govindbhai Dahyabhai Bhoi was accused no.1 before the trial Court, the appellant in criminal appeal No.1030 of 2006 – Mahesh alias Bhagat Bhikhabhai Bhoi was accused no.2 before the trial Court and appellant in criminal appeal no.1031 of 2006 – Ishwarbhai Dahyabhai Bhoi was accused no.3 before the trial Court. Since all these appeals arise out of common judgment and order and they are heard together and are disposed of by this common judgment and for the sake of convenience, the appellants are referred to by their original status as accused before the trial Court.
3. As per prosecution case, accused no.1 and accused no.3 are full blood brothers, whereas accused no.2 is the brother-in-law (wife's brother) of accused no.3. Accused no.1 and accused no.3 had a third brother viz., Kantibhai, with whom, accused no.1 had certain disputes relating to their properties. It is the case of the prosecution that accused nos.1, 2 and 3 conspired to commit murder of Kantibhai and to destroy the evidence of murder of Kantibhai and in furtherance of that conspiracy, they joined hands and acted with common intention. In doing so, accused nos.1, 2 and 3 caused death of Kantibhai by causing injuries with iron pipe, dagger and 'Ateda' (one of the weapons) and by strangulating him with the shirt, which the deceased was wearing. It is the further case of the prosecution that after causing death of Kantibhai, the appellants put the dead body on highway, just to give the colour of accident to the incident. According to the prosecution, this episode occurred between 3-00 am and 7-00 am, on 11th February, 2005. The dead body was noticed for the first time at about 8-00 am on that day. To put it in a chronological order, it can be said that there was a marriage ceremony in the family and pursuant thereto, a 'Garaba' (Gujarati folk dance) function was held on 11.02.2005. Since the ladies' folks continued with 'Garabas' upto early morning hours, the deceased - Kantibhai, after having a talk with his wife – Kailashben, PW 1, went to the rest place, where they were housed. He departed from the place of 'Garaba' at about 3-00 am. When his wife – Kailashben, after completing 'Garaba', went to the rest place, she did not find the deceased and therefore, she started search for him. While the search was on, a news was received that one dead body is found on the highway and therefore, the wife of the victim and others, including PW 5, rushed to the highway and found that the dead body was of deceased Kantibhai. There was no clothes on it and there were several injuries. A shirt was tied round the neck. The shirt was the one which the deceased was wearing. On the basis of this, offence was registered and investigation was made. Police, having found sufficient evidence, filed charge-sheet in the Court of Judicial Magistrate, First Class, Kheda, who, in turn, committed the case to the Court of Sessions and Sessions Cases No.158 of 2005 and 159 of 2005 came to be registered. Charge was framed against the accused at Exh.4, to which, they pleaded not guilty and came to be tried. After considering the evidence led by the prosecution, the trial Court found that the charges were proved by the prosecution against the accused and recorded their conviction and passed sentence as stated hereinabove and hence, this appeal.
4. We have heard learned advocate Ms. Sadhna Sagar for the appellants and learned APP Mr. Soni for the respondent – State.
5. Ms. Sagar submitted that the case depends on circumstantial evidence and it is the case of the prosecution that since accused no.1 and deceased had some disputes, the accused persons had conspired together to do away with victim Kantibhai. She submitted further that the prosecution has failed to complete the chain of circumstances to connect the accused with the crime. The trial Court has, overlooked this aspect, recorded the conviction only on stray pieces of material found during the investigation, first being a bloodstained button of accused no.1. The blood found on that button is of the group of deceased, but, the said button was recovered from a field of Maniben and the prosecution has failed to bring on record any evidence as to how and why the deceased and the eye-witness had gone there and for what purpose. It is also submitted that there is no evidence that the said place falls between the rest place and the place where the 'Garabas' were arranged. Therefore, how deceased went to the field of Maniben is a matter of doubt and suspicion. Similarly, the accused persons' presence at the place is also not properly established and it is a matter of doubt that why they could have been there. In the circumstances, neither the motive nor the incident can be said to have been proved to have occurred at the hands of the appellants. The trial Court, having overlooked that aspect, has recorded conviction, and the same therefore, may be set aside by allowing the appeals.
6. Learned APP has opposed this appeals. According to him, the accused had good motive for commission of the crime and the circumstances of finding of button found near the place of incident, is a strong circumstance to connect accused no.1. Accused no.2 and accused no.3 have actively participated in the assault and therefore, appeals may be dismissed.
7. We have gone through the record and proceedings in context of rival submissions.
8. At the outset, we may observe that without dispute, the case depends on circumstantial evidence. The principles governing such cases are that the prosecution must establish a complete chain of circumstances connecting the accused with the offence, leaving no scope for hypothesis of innocence of the accused. Every circumstance must be strong in itself and must establish a nexus with each other so as to complete the chain. With the above basic principle, in the backdrop, if the evidence in the instant case is examined, what we have before us, is evidence of PW 1 – Kailashben, Exh.13, who says that in the early morning hours at about 2-00 am, her husband left the place of 'Garaba' and she continued with 'Garaba'. When she reached to the rest place, she did not find her husband Kantibhai. This happened at about 7-00 am. She, therefore, started looking for him and took help of her brother as well, who is PW 5, but, they could not locate deceased Kantibhai. At about 8-00 am, they received a news that a dead body is found on the highway and therefore, PW 5 rushed to the highway and found that the dead body was that of his brother-in-law – deceased Kantibhai. The dead body was without any clothes on and a shirt was tied round the neck of the dead body. FIR was given by Kailashben – wife of deceased, on the basis of which, the offence was registered and investigation was started. During the course of investigation, it was found that at a distance of about 250 meters, a bloodstained button was noticed, which was recovered from the filed of Maniben. The said button was identified by PW 5 to be that of accused no.1. It was sent to FSL and it was found that there were blood marks of the group of the deceased on the button.
8.1 With the above evidence, if we see other pieces of evidence, we do not have any material to note how the deceased reached to the highway, wherefrom his dead body was found. We have no material to know that the deceased, in fact, did go to the field of Maniben, wherefrom the button is found nor do we have any material to know that all or any one of the accused had gone to the field of Maniben between 2-00 am and 7-00 am on the date of incident. The material does not reveal that neither the highway nor the field of Maniben falls between the place where 'Garaba' were organised and the rest place. Therefore, finding of button of the coat of accused no.1 carrying blood mark of the group of the deceased by itself, would not complete the chain of circumstances to connect the accused with the crime. No reason is indicated for the deceased to have gone either to the highway or Maniben's field. Similarly, no reasons have been indicated that the accused had reason to go there and had, in fact, gone there and could have, in all probability, gone there. Finding of button, therefore, remains only one of the circumstances which may lead to the guilt of the accused, but, cannot take place of the complete chain of circumstances to connect the accused with the crime.
9. Similar would be the situation so far as the discovery of dagger, pipe or 'Ateda' is concerned, as it would also not be more than only one of the circumstances to connect the accused with the crime. It cannot be considered as a chain of circumstances to connect the accused with the crime.
10. At this stage, it would be appropriate for us to refer to evidence of PW 5, who is the brother-in-law of the deceased and brother of the first informant – wife of the deceased, where he has admitted that he had given names of the accused persons purely out of suspicion and there were two others regarding whom also he had suspicion of involvement in this incident. Those two persons are Rekhaben Gandabhai Bhoi and Bhikhabhai. We may also record that there appears to have not been carried out any investigation probing into the possibility of involvement of these two persons.
11. All these aspects leave no room for confirming the judgment of the trial Court. The case against the appellants cannot be said to have been proved beyond the reasonable doubt. The trial Court has overlooked these aspects.
12. Therefore, the appeals stand allowed. The common judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, Fast Track Court No.10, Nadiad on 09.05.2006 in Sessions Cases No.158 of 2005 and 159 of 2005 for the offences punishable under Sections 302, 201, 120B and 34 of the Indian Penal Code is hereby set aside. All the Appellants are acquitted of the charges levelled against them. They shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to them.
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[A.L. Dave, J.] #MH Dave Sd/-
[Paresh Upadhyay, J.]