Narsinbhai Manjibhai Ninama vs State Of Gujarat

(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of this appeal, the convict­appellant has challenged the judgment and order dated 10.08.2005 passed by learned District and Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.193 of 2004 by which the appellant has been convicted for the offences under Section 302 of Indian Penal Code and is sentenced R.I. for life and fine of Rs.10,000/­, and in default, simple imprisonment for six months.

2. The brief facts of the prosecution case are as under:

2.1 That one Nanjibhai Sardarbhai Ninama lodged a complaint with PSI of Bhiloda Police Station of Sabarkantha District and alleged that, on 18.8.2004 his wife Sakriben, who had gone for grazing the cattle at 10:00 hours had not returned from the hills. When the cattle returned at 16:00 hours to his home without his wife Sakriben, one Dahyabhai son of Jagnabhai Badabhai informed him that Sakriben, who was grazing the cattle, was not in the jungle and, therefore, he informed his relatives about the same, and went in the jungle where he found wife Sakriben having received an axe blow on her neck and was found dead. On inquiring about the death of his wife Sakriben, he came to know from Ninabhai Somabhai and Amrabhai Badabhai that, at about 12:00 hours, they have seen appellant­ accused Narsinhbhai Manjibhai Ninama running away from the direction where the dead body was lying towards the village. Pursuant to the complaint, the police personnel started investigation, and after having found sufficient material against the accused, filed a chargesheet in the Court of learned JMFC at Bhiloda, who in turn, committed the case in the Court of Sessions Judge, Sabarkantha at Himmatnagar.

2.2 The learned Sessions Judge framed a charge against the accused under Section 302 of Indian Penal Code as well as under Section 135 of Bombay Police Act. The prosecution was successful in establishing its case, as far as Section 302 of IPC is concerned, however, failed in establishing the case under Section 135 of Bombay Police Act. The learned Sessions Judge by reasoned judgment and order dated 10.8.2005 convicted the appellant­accused and sentenced him for the same as stated hereinabove.

3. Mr.Gajendra Baghel, learned advocate appearing for the appellant has assailed the judgment on the ground that the learned Judge has erred in accepting the say of witnesses Rekhaben, Amrabhai and Vinodbhai, who posed themselves as eye­witnesses to the incident. He has submitted that, if the depositions of these witnesses are perused, the conduct of these witnesses are not a natural one. Though, they have seen the incident at about 1:00 o'clock in the afternoon, they do not inform any of the family members of the deceased including the complainant, who is the husband of the victim. If these witnesses are not accepted as eye­witnesses to the incident, there is no other circumstantial evidence available which would corroborate the case of the prosecution that the deceased was attacked by only and only accused person in a jungle which is situated in the hills.

4. On the other hand, learned APP Mr.L.B.Dabhi appearing for the respondent­State has supported the reasons assigned by the trial court in convicting the accused person, and submitted that, no interference is called for when there are eye­witnesses to the incident. He has submitted that, the discovery of weapon as well as clothes of accused are proved through panch witnesses which were discovered at the instance of the appellant­accused. He has submitted that the eye­witness are neither related to the deceased nor to the appellant­accused and, therefore, their say about the incident has rightly been accepted by the trial court.

5. We have heard learned advocates appearing for the parties. We have also examined the Record and Proceedings of the case and perused the deposition of 14 witnesses as well as the documentary evidence which are proved by the prosecution before the trial court.

Complainant Nanjibhai Sardarbhai Ninama, who is husband of victim Sakriben, and uncle of the appellant­ accused, has been examined by the prosecution as P.W. No.1 at Exh.9, who deposed that his wife had left the house on 18.8.2004 at about 10:00 o'clock in the morning for grazing the cattle in a jungle which is situated in the hills, and has supported the narration about the incident what was stated by him in the First Information Report Exh.10. He has stated in his deposition that, when he reached at police station to lodge a complaint, the Police Officer informed that the attacker to the deceased has come in the police station and he found the appellant­accused present in the police station. He is not an eye­witness. About presence at the police station which he has deposed before the Court does not found to be true, since PSI Ishwarbhai Dhanjibhai Rathod, P.W.13 Exh.39, who recorded the FIR does not depose the same before the Court. On the contrary, he has deposed that, though, his complaint was lodged on 18.8.2004, the appellant­accused was arrested on 20.8.2004 which is proved through panchnama Exh.14.

As far as giving the name of appellant­accused in the FIR is concerned, he has submitted that Ninabhai Somabhai and Amrabhai Badaji had informed him about the involvement of the appellant­accused. Now, considering the deposition of Amrabhai Badaji is concerned, he has deposed that, when deceased Sakriben was grazing her cattle at the place of incident, he along with Rekha Soma, Rekha Shanker and Vinod Babu were also grazing their cattles. At about 12:00 o'clock in the noon, the appellant­ accused Narsinhbhai Manjibhai Ninama came there and asked for a `bidi'. Thereafter Sakriben had gone in one direction with the cattle and this witness had left for grazing his cattle in the other direction. Narsinhbhai Manjibhai Ninama – appellant had gone in the direction where Sakriben had gone and he had an axe with him. At that time he heard shouts of Sakriben and, therefore, he and Vinodbhai ran in the direction where Sakriben had gone, and at that time, he found Narsinh Manji giving two axe blows to the deceased. Seeing the incident, he was afraid and went to his house with his cattle. He further says that since he was afraid, he did not inform about the incident to anybody. However, when the villagers along with complainant were trying to find out the deceased Sakriben, he also joined the village people. However, at that time also, he did not inform to anybody about the incident having seen by him. Similar is the say of the Vinodbhai, P.W.7 Exh.21. He has also not informed to any of the relatives of the complainant. On the contrary, he joined the villagers who were trying to find out the deceased. Rekhaben Somabhai, P.W.5 Exh.19, who has posed herself about seeing the accused with axe, is niece of complainant and cousin of appellant­accused. She has admitted that she has not seen the incident in which the other two witnesses have alleged that the appellant­accused had given two axe blows to the deceased. She did not inform her uncle about the presence of appellant­accused with an axe. She came to know about the death of her aunt Sakriben on 20.8.2004. She has admitted in her cross­examination that she had not informed to anybody about meeting appellant­accused when she was grazing the cattle along with deceased and other witnesses. Now, the prosecution has not examined Somabhai Kamjibhai, who, as per the complainant, had informed him about the involvement of Narsinhbhai Manjibhai Ninama in the incident.

Considering the depositions of these witnesses, the conduct of these witnesses in not informing the villagers about the incident of which they claimed having been witnessed and joining the villagers in finding out the deceased is strange and, therefore, their presence at the time of incident becomes doubtful. All these three witnesses did not inform the complainant for more than 10:00 hours from the time of incident. It is pertinent to note that the statements of Rekhaben, Amrabhai and Vinodbhai were recorded by the police authorities after two days from the date of recording the complaint. It is not a natural conduct of a person remaining silent about the incident for 2 to 3 days from the time of incident. One of the witnesses i.e. Rekhaben is closely related to the complainant as well as the accused. However, her conduct about not informing the incident to her is unnatural. In view of the above mentioned facts of the case, we do not accept these three witnesses as eye­witnesses.

6. Now, in absence of any eye­witnesses to this incident, we have examined the other circumstantial evidence like discovery of panchnama of weapons as well as clothes of the accused which are proved through panch witnesses. Though the bloodstains which were found on these articles are same not proved by the prosecution through serological report of Forensic Science Laboratory. The learned trial court has referred about the report of Forensic Science Laboratory, though, not proved by the prosecution. We are of the opinion that, in absence of proved evidence, the same cannot be relied, and therefore the learned Judge ought not to have relied upon the Forensic Science Laboratory report. However, the Forensic Science Laboratory report is one of the circumstances, but, in absence of any eye­witness as well as other circumstances as we have held hereinabove, the prosecution, in our opinion, has failed in proving the case against the appellant­accused. Therefore, this appeal requires acceptance and accordingly the appeal is allowed.

7. For the reasons stated hereinabove, the appeal is allowed. The conviction of the appellant recorded by the learned District & Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.193 of 2004 dated 10.08.2005 is hereby set aside. The appellant is acquitted of the charges levelled against him and he will be set at liberty forthwith if he is not required in any other case. Fine, if CR.A/1136/2006 10/10 JUDGMENT paid, be refunded to him.

( A.L. DAVE, J. ) ( A.J. DESAI, J. ) syed/