(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of the present appeal, original accused has challenged the judgment and order dated 6th January, 2005, passed by the learned Joint District & Sessions Judge, Fast Track Court No.6, Nadiad, in Sessions Case No.112 of 2004, by which the appellant has been convicted and is sentenced for imprisonment of life for the offence under Section 302 of the Indian Penal Code as well as sentenced for rigorous imprisonment for three years and fine of Rs. 250/-, in default, to undergo, simple imprisonment for one month for the offence under Section-316 of the Indian Penal Code. Both the aforesaid sentences are ordered to run concurrently.
2 Brief facts emerges from the prosecution case are as under:
That one Mangalbhai Babubhai Gohel, by telephonic message, informed the Police Station Officer of Kheda Town Station, that one Khodabhai Babubhai Gohel had killed his wife in his field. Pursuant to the said telephonic message, police visited the scene of offence and the complaint was recorded by the police. The complaint was filed by Mangalbhai Babubhai Gohel, who is the brother of the accused. It was alleged in the complaint that his elder brother Khodabhai Babubhai Gohel, who is accused– appellant was residing in his field with his wife and three children. On 4.2.2004 i.e. the date on which the incident took place, at about 17.00 hours, his uncle Poonabhai Gotabhai, who is residing near the house of the accused, came at the residence of the complainant Mangalbhai Babubhai Gohel and informed that Khodabhai had killed his wife Madhiben by giving dharia blows on her neck. It was further alleged in the complaint that three dharia blows were given by Khodabhai since he was of suspicion nature and had doubt about the character of his wife. Pursuant to the said complaint, police personnel investigated the case and having found sufficient material against the accused, filed charge sheet in the court of learned Chief Judicial Magistrate, First Class, Mahemdabad, who in turn, committed the case to the Sessions Court at Nadiad for trial. The learned Joint District & Sessions Judge, Fast Track Court No.6, Nadidad, framed charges at Exhibit-6, for the offence punishable under Section 302 as well as the offence under Section 316 of the Indian Penal Code as the act of the accused caused the death of quick unborn child as at the time of incident the deceased was having pregnancy of five months.
3 At the end of the trial, the Trial Court found that the prosecution was successful in proving its case against the accused for the offences for which the accused was charged and convicted and sentenced him for the offences, as stated, here-in-above. Hence this Appeal.
4 Learned Advocate Ms. Nisha Parikh for the appellant has assailed the judgment and conviction of the appellant on the ground that in absence of any witness to the incident, the learned Trial Court ought not to have convicted the appellant–accused only on one circumstance i.e. the serological report of Forensic Science Laboratory, in which, it has come on record that the bloodstains of the deceased were found on the pant of the accused as well as the bloodstains of the deceased were also found on the weapon, which was discovered at the instance of the accused – appellant. She has also submitted that there is no eye witness to the incident, however, those witnesses, whose statements were recorded, in which, they have involved the accused–appellant, have not supported the case of the prosecution and the panchas to the discovery panchnama of weapon as well as clothes of the accused, also have not supported the case of the prosecution. She, therefore, submitted that the reasons assigned by the Trial Court convicting the accused– appellant requires interference by this Court and prayed that the appeal be allowed and the accused – appellant be acquitted from the charges levelled against him.
5 On the other hand, learned APP Mr. Neeraj Soni has supported the findings of the Trial Court in arriving at the conclusion that the accused- appellant was the only person, who had committed the crime. He has further submitted that since the offence took place near the house of the accused where the deceased was residing with him, an inference can be drawn that the accused- appellant had committed the offence. In support of his contention, he has relied upon the serological report of the Forensic Since Laboratory.
6 We have heard learned Advocate Ms. Nisha M. Parikh for the appellant and learned APP Mr. Neeraj B.Soni for the respondent–State and have also perused the record and proceedings of the case and perused the depositions of the witnesses as well as the documentary evidence which were proved by the prosecution before the Trial Court. The prosecution examined as many as ten witnesses and proved several documentary evidence, such as, postmortem note, discovery panchnama, arrest panchnama, etc. It is an admitted position that there is no eye witness to the incident. If the scene of offence panchanama (Exhibit-11) as well as the map of scene of offence (Exhibit-29) are perused, it appears that, the incident took place in `adali' i.e. an open shed or roof in front of the house, which is of 7' length and 12' width where the bloodstains of the deceased were found. If the map at Exhibit-29 is perused, the house of the deceased as well as other houses are situated, in mids of several fields. In each field there is a house.
7 Now considering the deposition of Poonambhai Gothabhai, PW-4, Exhibit-17–the complainant, he has not supported the case of the prosecution. It appears that he was informed about the incident by Lilaben Ishwarbhai, PW-6, Exhibit-19. Similarly, if the deposition of Lilaben Ishwarbhai, is perused, she has also not supported the case of the prosecution. Similarly, Reshamben Somabhai Gohel, PW-7, Exhibit-20 and Bhikhubhai Jiya Malek, PW- 8, Exhibit-21, have not supported the case of the prosecution. Even if the deposition of all these witnesses are closely scrutinized, none of them claims that they have seen the incident. As stated here-in- below, the place of incident is an open place and anyone could have come at the place incident. The house is situated in a field which surrounded by several other fields.
8 Now considering the serological report qua weapon which was discovered at the instance of the accused as well as the clothes of the accused, the panch witnesses have not supported the case of the prosecution. In our opinion, if the serological report is accepted, even then, it is only one circumstance, upon which, the conviction cannot be recorded. The weapon which was discovered at the instance of the accused was found from the open place in a field, which could have been thrown by any person. It is also pertinent to note that the time and place of arrest of accused are not coming on record.
9 In view of the above factual aspect, it is difficult for us to arrive at a conclusion that the appellant – accused was the only person, who could have assaulted the deceased and in absence of any other evidence, a reasonable doubt can be created in favour of the appellant–accused.
10. In the result, the appeal succeeds and is allowed. The impugned judgment and order dated 6.1.2005 rendered in Sessions Case No.112 of 2004, by the learned Joint District and Sessions Judge, Fast Track Court No.6, Nadiad, recording the conviction of the appellant and the sentence awarded to him is set aside and applicant is acquitted of the charges levelled against him. The 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