(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of this appeal, the appellant has challenged the judgment and order dated 21.05.2004 passed by learned Additional Sessions Judge, 13th Fast Track Court, Rajkot in Sessions Case No.172 of 2003, by which the appellant has been convicted for the offences under Section 302 of the Indian Penal Code and Sections 37(1) and 135 of the B.P. Act and sentenced him to undergo life imprisonment and fine of Rs.2,000/-, in default thereof, to undergo simple imprisonment for six months.
2. The facts emerging from the record of the case are as under :
2.1 That one Jayantibhai Ravjibhai Chauhan lodged the complaint on 18.06.2003 with 'A' Division Police Station of Rajkot City alleging that his brother Jadavbhai, who was residing separately with his family members and having disputes with his family, was some time sleeping in 'Ren- Basera' where similar persons were sleeping. At 6-00 O'clock in the morning, one saint came to his residence and informed that his elder brother Jadavbhai has been killed and his dead body is lying at the 'Ren-Basera'. Pursuant to this, he visted the place where the deceased had slept on 17.06.2003 and where the dead body was found. On inquiry, he was informed by other side that the present appellant accused had given blows by a tile on the frontal part of the head of the deceased, pursuant to which, he died on the spot. It was also informed by the complainant that after giving the blows, Natubhai i.e. present appellant accused ran away from the place of incident. Pursuant to the complaint lodged by Jayantibhai, police personnel started investigation and after having found sufficient materials against the accused, filed charge-sheet in the Court of learned J.M.,F.C., at Rajkot, who, in turn, committed the case in the Court of learned Sessions Judge at Rajkot. On denial of charge by the appellant, which was framed at Exh.1, trial proceeded. The learned Sessions Court, after considering the depositions of witnesses and documentary evidence, found the appellant accused guilty of the offence for which he was charged and accordingly, convicted and sentenced him, as stated hereinabove. Hence, the appeal.
3. Mr. Akshat Khare, learned advocate for Mrs. Suman Khare, learned advocate appearing for the appellant, has assailed judgment on several grounds. The main ground canvassed by Mr. Khare is that in absence of any eye-witness and on the basis of circumstantial evidence, the trial Court ought not to have convicted the accused. He submitted that none of the witnesses has seen the accused giving blows to the deceased. He has further submitted that the witnesses who have seen running away the appellant accused from the scene of offence cannot be believed, since it is alleged that the appellant accused had given several blows to the deceased, but, he did not raise any shout. The 'Ren-Basera' is the place where number of saints or beggars are sleeping. It is not believable that none of them had not seen the appellant accused giving blows to the deceased, and only saw the accused running away from the scene of offence. In view of this aspect, he submitted that the appellant accused is entitled for acquittal.
4. On the other hand, learned APP Mr. Soni has supported the reasons assigned by the trial Court. He submitted that the deceased had habit of consuming liquor and on the night of the incident, he had consumed liquor and was sleeping and therefore, he might not have raised shouts even when the blows were given by the appellant accused and therefore, other persons might not have woke up when the appellant accused was giving blows to the deceased. He has further submitted that the appellant accused ran away from the scene of offence and was arrested after three months from the date of incident and therefore, the conduct of appellant accused is also required to be looked into and the reasons assigned by the trial Court about the conduct of the appellant do not require any interference by this Court.
5. We have heard learned advocates appearing for the parties and have scanned the record and proceedings. Learned advocates have taken us through the depositions of about sixteen witnesses as well as the documentary evidence produced by the prosecution before the trial Court.
6. Jayantibhai Ravjibhai Chauhan, PW 2, Exh.12, who is the complainant in this case and brother of the deceased, is not the eye-witness, but, has lodged the complaint on information received from some saints, who were present at the time of incident.
7. The person, who had informed about the incident, is one Maheshdas Mangaldas and he has been examined as PW 3 at Exh.16 by the prosecution. Perusing his deposition, it emerges that he is a beggar and sleeps in 'Ren-Basera', where about 72 Otas are made available to sleep such persons who have no shelters. He has deposed that appellant accused was sleeping beside him on 17.06.2003 and at about 10-30 pm, the deceased came and slept between him and appellant accused. He has further categorically stated that all Otas were full of such beggars and saints and no place was available and therefore, the deceased slept on the floor. At about 3-30 in the night, he heard the noise of groaning and when he woke up, he saw the deceased in pool of blood, but, he did not find Natubhai at that place. Maheshdas has admitted in his cross- examination that he slept at about 10-00 O'clock and woke up at about 8-00 O'clock in the morning. This witness has not seen the incident nor has seen the appellant accused running away after giving the blows, as stated by other witnesses like Manek Swami, PW 4, Exh.17 and Mohanbhai Narsinh Mom, PW 5, Exh.18.
8. Now perusing the depositions of two witnesses i.e.
PW 4 and PW 5, it appears that these two witnesses had also seen the appellant accused running away from the scene of offence, but, had not seen the actual incident about of the blows on the head of the deceased.
9. Now, considering the cross-examination of these witnesses, it appears that when they got up after hearing the noise of groaning, they had not seen the appellant accused.
10. Another witness viz., Apparao Ramei Sadhu, who posed himself as eye-witness to the incident, has been examined by prosecution as PW 10, Exh.28. He has not supported the case of prosecution.
11. Similarly, another witness Mangaram Gurubhai Sadhu, PW 11, Exh.29, who also posed himself as eye-witness, has not supported the case of prosecution. However, he has tried to support the prosecution case, but, he has not substantially supported the case of prosecution. In his cross- examination, he has admitted that when hue and cry was raised by the saints having found the deceased in a pool of blood, all saints ran away from the scene of offence and he also left the place of incident. It emerges from the depositions of several witnesses that number of saints/beggars ran away from the scene of offence including the appellant accused. Therefore, running away from 'Ren-Basera' by the accused itself would not involve him in the offence in absence of any other evidence.
12. The submission made by learned APP that the deceased must have slept after consuming liquor and therefore, might not have raised shouts, is not believable in absence of evidence led by the prosecution on this aspect.
13. Except these witnesses, the prosecution has failed in collecting sufficient other circumstantial evidence which would lead us to believe that the appellant accused was the only person who had committed this offence. There are no other circumstances which would corroborate the case of prosecution against the appellant accused. We do not find truthfullness in the depositions of these witnesses, since the story narrated by them is not probable. Though there were number of baggers/saints who were sleeping in close proximity, where the incident took place, none of them woke up when the appellant accused was giving number of blows to the deceased.
14. In view of above discussion, the appellant is entitled to get the benefit of doubt and the appeal deserves to be allowed.
15. The appeal stands allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, 13th Fast Track Court, Rajkot on 21.05.2004 in Sessions Cases No.172 of 2003 for the offence punishable under Section 302 of the Indian Penal Code and Sections 37(1) and 135 of the B.P. Act is hereby set aside. The Appellant 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.
[A.L. Dave, J.] [A.J. Desai, J.] #MH Dave