(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1 The present Criminal Appeal arises out of the judgment and order rendered by learned Additional Sessions Judge, Third Fast Track Court, Rajkot, Camp at Morbi, in Sessions Case No. 92 of 1994, on 29th April, 2005, convicting the appellant–accused Nikhil Harilal Brahmin for the offence of murder of one Dhirubhai Trambaklal Shah allegedly committed by him on 19th July, 1994 at about 8.30 p.m. at Chitrakut Society, Morbi, by giving multiple knife blows. The Trial Court after convicting the appellant, sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/-, in default, to undergo SI for six months and hence this Appeal.
1.1 As per the prosecution case, the accused runs a `Pavbhaji' stall at Morbi and victim Dhirubhai Trambaklal Shah owed him some amount. On the day of the incident, the accused went to the house of the victim for demanding the money wherein there was some dispute and the accused-appellant attacked the deceased with knife and caused him as many as 7 injuries. Out of which, one was a stab injury and six injuries were incised injuries. One injury was on the left side of the neck and the other injury was in the abdominal portion. On being attacked, the deceased started running by raising shouts. The people assembled and some of them chased the assailant, caught hold of him, gave him thrashing and, ultimately, handed over him to the police. On the other hand, on hearing shouts of the victim, one Bhagwanji Chaganbhai Panara, came out of his shop and took him into an auto rickshaw to the hospital and got him admitted. The Doctor recorded history as given by the patient. The history recorded by the Doctor in the case paper at Exhibit-38 reads as under:
“ Pt. says knife blow is given in my house. I do not know the name. He runs pavbhaji business”.
1.2 The police was informed. FIR of Bhagwanji Chaganbhai Panara was recorded and offence was registered. The offence was investigated into and, ultimately, having found sufficient material, the charge sheet was filed in the Court of JMFC, Morbi, who in turn committed the case to the Court of Sessions and Sessions Case No. 92 of 1994 came to be registered. The charge was framed against the accused at Exhibit-1, to which he pleaded not guilty and claimed to be tried.
1.3 The Trial Court after recording evidence, came to the conclusion that the prosecution was able to establish circumstances to connect the accused with the crime and, ultimately, convicted the accused–appellant for the offence of murder of Dhirubhai Trambaklal Shah by judgment and order dated 29th April, 2005 and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/-, in default, to undergo SI for six months and, hence, this Appeal.
2 We have heard learned Advocate Mr. H.N.Joshi appearing with Ms. Rekha H. Kapadia for the appellant and learned APP Mr. L.B. Dabhi, for the respondent – State.
3 Mr. Joshi submitted further that here is a case where there is no eye witness to the incident. The circumstances which are accepted by the Trial Court to connect the accused with the crime are not sufficient. There are missing links which the Trial Court has overlooked while recording conviction.
3.1 Mr. Joshi submitted that the prosecution has failed to establish motive which is one of the important circumstances which the prosecution must establish. Mr. Joshi then contended that the extra judicial confession allegedly made by the accused before the brother of the victim is also not sufficient to connect the accused with the crime. Similarly, the factum of the accused having given a complaint which is recorded as non-cognizable one (hereinafter referred to as “NC”) by the police in respect of this incident, would also not establish the involvement of the accused in the crime. Mr. Joshi further contended that the fact that the accused himself had injuries on his person would not establish the involvement of the accused in this offence in absence of any another evidence showing his actual involvement. The injury on his person could have been taken as an adverse factor against him but that by itself will not connect the accused with the crime. The injuries, even as per the prosecution case, were subsequent on the assailant. Mr. Joshi, therefore, submitted that there are missing links in the prosecution case and benefit of doubt therefore must go to the accused. These aspects have not been considered by the Trial Court and, therefore, this Court may allow the Appeal and set aside the judgment of the Trial Court.
4 Learned APP Mr.Dabhi opposed this appeal. According to him, blood was found on the cloth of the accused, regarding this, no explanation is coming. He submitted further that there is extra judicial confession made by the accused before the brother of the victim, that also requires consideration. The accused was seen by number of of persons after the incident and the accused himself has lodged a non-cognizable complaint in respect of the very incident. There is recovery of sandal as well as knife by the prosecution and, therefore, the conviction is well founded and may be upheld.
5 We have examined the record and proceedings in context of rival submissions. At the outset, we may record that, this is a case where the prosecution was not able to bring on record any direct evidence and the case depends on circumstantial evidence. In cases where the charge is sought to be proved by circumstantial evidence, it becomes the duty of the prosecution to establish a complete chain of circumstances linking the accused with the offence. Any missing link or even a weak link would be fatal to the prosecution and the accused would be entitled to benefit of doubt.
6 With the above settled proposition of law, if, the evidence on record is examined, what is found is that, the accused is alleged to have made an extra judicial confession before the brother of the victim. Brother of the victim Bhupatrai Trambaklal Shah is examined at Exhibit-7. From his examination-in-chief it appears that he learnt about the incident and went to the hospital to look after his brother where he came across the assailant. He was told by the assailant that the victim had given Rs. 30 currency notes which were torn, which he had returned to to the victim and when the assailant went to collect the money, the incident occurred. The name of the assailant was Nikhilbhai Brahmin Pavbhajiwala, who was present in the court. During the cross-examination, he admits that when he talked with the assailant/ accused, police was present. He stated that he had not sought permission from the police, but talked to the assailant directly with an intention to knowing his name.
6.1 Thus, the evidence in nature of extra judicial confession which is made by the assailant in presence of police, cannot be accepted. Apart from this, the evidence in examination-in-chief, if given a close scrutiny, would indicate that the witness claims to have talked to the assailant and the assailant says that he had gone to collect money, because of which, the incident occurred. What is the incident occurred, when and how, no detail is given. That apart, the witness does not identify the accused as the assailant or Nikhilbhai Brahmin Pavbhajiwala, but he says that Nikhilbhai Brahmin Pavbhajiwala is present in the court. He does not say that Nikhilbhai Brahmin Pavbhajiwala is the accused. Therefore, in our view, no much reliance can be placed on the evidence of Bhupatrai Trambaklal Shah, brother of the victim, as a circumstance against the accused, before him it is claimed that the accused made an extra judicial confession. In our view, what is claimed to have been stated by the assailant, in no way, a confession on assault on the victim and what is stated by the assailant is an incident occurred, which incident he referred into, is not made clear.
6.2 We may also add that the accused was already arrested before such extra judicial confession and he was in custody when the so called extra judicial confession was made and, therefore, also it would not be admissible in evidence.
7 The next aspect that is sought to be relied by the prosecution to prove the case against the accused is a non-
cognizable complaint lodged by the accused himself. The contents of that NC would not be admissible in evidence and cannot be accepted against the accused. The factum of the accused having gone to police and lodged NC can be considered only as an event or conduct. This circumstance, by itself, will not constitute a circumstance against the accused because the contents of the NC cannot be read in evidence and in absence of contents, it is difficult for the Court to know what was the reason for the accused going to lodge the NC and against whom. It could be or it could not be in relation to the incident in question. This becomes relevant or significant when according to the prosecution itself the assailant suffered injuries at the hands of the people who had collected in the society and, therefore, the assailant had what more reasons to go to the police and lodge the complaint or FIR or NC. It is not coming on record as to why the accused was given thrashing by the crowd which had assembled. This circumstance, therefore, also cannot constitute a valid evidence against the accused.
8 The fact that the accused was caught immediately after the incident from the proximity is a circumstance sought to be pressed to prove the guilt of the accused. In this context, it will be noted that witness Thakersinhbhai Gangarambhai Patel, examined at Exhibit10, has not supported the prosecution case and is declared as hostile.
9 The recovery of weapon alleged to have been used by the accused is also a circumstance, which is sought to be pressed in service. Here again, the panch witness did not support the recovery panchnama and, therefore, the recovery cannot be said to have been appropriately established.
10 As seen in the serological report of Scientific Officer, Regional Forensic Laboratory, produced at Exhibit-61, the blood group of the deceased and accused is `B' group and blood stains found on the clothes of deceased and accused are also from the same group, therefor, in absence of other relevant evidence, it is difficult to arrive at the conclusion that the clothes of accused having blood stain of the deceased only and particularly when it is an admitted position that the accused had also sustained injury. Therefore, this circumstance also does not help the prosecution.
11 Keeping these aspects in mind, if the evidence is assessed, it has to be recorded that, the circumstances brought on record, do not constitute at all the chain of circumstances connecting the accused with the crime. These aspects have been overlooked by the Trial Court and conviction is recorded. Such conviction cannot be permitted to stand. The appeal, therefore, deserves to be allowed and the same is allowed accordingly. The impugned judgment and order dated 29.4.2005, rendered in Sessions Case No.92 of 1994, by the learned Addl. Sessions Judge, CR.A/1306/2005 10/10 JUDGMENT Fast Track Court No.3, Rajkot, Camp at Morbi, recording conviction of the appellant – original accused NIKHIL HARILAL BRAHMIN for the offence punishable under Section-302 of the Indian Penal Code and the sentence awarded to the appellant – accused is set aside and the appellant is acquitted of the charges levelled against him. 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