(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1 This Appeal arises out of a judgment and order rendered by the Additional Sessions Judge, Court No. 17, City Sessions Judge, Ahmedabad, in Sessions Case No. 369 of 2003, on 18th October, 2004, convicting the present appellant for the offence of murder of one Kisanbhai on 11.5.2003 at about 11.00 p.m. at Naranbhai Chawli, Near Ginning Press, Naroda Road, Ahmedabad, punishable under Section 302 of the Indian Penal Code and sentencing him the imprisonment for life and also fine of Rs. 1,000/- in default, to undergo simple imprisonment for three months.
2 Brief facts of the prosecution case is that the appellant went to the house of deceased Kisanbhai Khatka on the relevant date at about 9.00 p.m. and attempted to play with the modesty of his wife. She raised shouts and, therefore, the appellant went away after intimidating her.
Again at 11.00 p.m. on the same day, the appellant went to the house of said Kisanbhai in company of Ramrup @ Rupa Maharaj, where Ramrup told Kisanbhai that the appellant is calling him and when Kisanbhai went out, both the appellant and Ramrup @ Rupa Maharaj committed assault on him and then the appellant fired a gun shot at Kisanbhai from a country made Tamancha that he had with him and caused him the fatal injury, because of which Kisanbhai died.
3 An FIR was lodged by one Dashratbhai Govindbhai Pujari, PW-1 with Shaher Kotda Police Station. On the basis of which, offence was registered and investigated. The police having found sufficient material against the appellant and Ramrup @ Rupa Maharaj, filed charge sheet against them, in the court of Metropolitan Magistrate, who, in turn, committed the case to the City Sessions Court and Sessions Case No. 369 of 2003 came to be registered.
4 Charges were framed against both the accused, namely, the appellant and Ramrup @ Rupa Maharaj, to which they pleaded not guilty and claimed to be tried.
5 At the end of the trial, the Trial Court found that the prosecution was successful in proving the charge of murder of Kisanbhai and recorded his conviction and, hence, this Appeal by the convict. The Trial Court by the impugned judgment, recorded acquittal of Ramrup @ Rupa Maharaj – original accused No. 2 of the charges levelled against him, against which, the State does not seem to have preferred any appeal.
6 We have heard learned Advocate Mr. Pratik B. Barot for the appellant and learned APP Mr. K.L. Pandya for the respondent – State.
7 The prosecution has examined as many as 13 witnesses.
Out of which, Dashratbhai Govindbhai Pujari, PW-1, Exhibit-13 is the first informant and an eye witness too. Similarly, Eknath Namdev Pujari, who is also projected as an eye witness, is examined as PW-10, Exhibit-38 and Kalpanaben, wife of deceased Kisanbhai, is examined as PW-12 at Exhibit-45.
Apart from the above three eye witnesses, PW-3 Yanendrasinh Chandrapalsinh Rajput and PW-4 Ramvilas Nankusinh Rathod were also projected by the prosecution as eye witnesses, but they have not supported the prosecution case.
Apart from the above evidence, there is evidence in the form of discovery of weapon by the appellant and there again, the discovery panch witnesses have not supported the prosecution case.
8 Learned Advocate Mr. Barot submitted that the three eye witnesses i.e. PW-1 Dashratbhai Govindbhai Pujari, PW-10 Eknath Namdev Pujari, and PW-12 Kalpanaben, wife of deceased Kisanbhai, do not prove the guilt of the accused as their evidence is inconsistent. Mr. Barot further submitted that the only evidence is discovery of weapons by the accused, but that discovery is not supported by independent witnesses and, therefore, ought not to have been used by the Trial Court against the accused. Mr. Barot submitted that, thus, there is a total absence of evidence connecting the accused with the offence and the appeal may, therefore, be allowed.
9 On the other hand, Mr. K.L. Pandya, learned APP, has opposed this appeal. According to him, the evidence of PW-12 Kalpanaben would go to show that the deceased was called out by the appellant and soon thereafter he was found lying dead on the road by Kalpanaben herself, which would mean that, there is a strong circumstantial evidence that the deceased appears to have been seen in the company of the appellant lastly in the proximity of time and place of incident. Therefore, he submitted that the Trial Court was justified in convicting the appellant and, therefore, the appeal may be dismissed.
10 We have examined the rival sides submissions while going through the record and proceedings. The first informant PW-
1 Dashratbhai Govindbhai Pujari. Exhibit-13, in his deposition stated that, he had not seen the incident. He was informed by the wife of Eknath Namdev Pujari when he was at home that somebody had fired a gun shot at Kisan and Kisan was lying in an unconscious state. He in clear terms stated that he does not know how Kisanbhai was fired and by whom.
Going to the evidence of PW-10 Eknath Namdev Pujari, Exhibit-38, who is the maternal uncle of deceased Kisanbhai, it reveals that, he was at this home when the wife of Kisanbhai came to his place and told him that her husband is lying on the road. Therefore, he went there and found that Kisan was lying on the road with an injury on the chest. He stated that Kisan's wife could not tell him as to who had fired gun at the deceased.
11 PW-12 Kalpanaben Kisan Khatke, Exhibit-45, is an important witness. She states that at around 9'O clock in the night, the appellant had come to her house. At that time, her husband was not at home. The appellant came inside the house and shut the door and told her that he would kill her husband. She states that she does not know as to why she was intimidated. She states that barring this intimidation, nothing was done by the appellant at that point of time, but, he left thereafter and she does not know where he had gone. Thereafter, the appellant's uncle came there, whose name she does not know. He had come to call her husband and her husband went with him and thereafter when she went out, she found her husband was lying on the road. At that time, PW-1 Dashratbhai Govindbhai Pujari was present. She saw that Kisan was injured with a gun fire and was not able to speak. She states that she does not know accused No. 2 Ramrup @ Rupa Maharaj, but she claims that she knew accused No. 1 Ramanbhai. But, from her cross-examination, it emerges that, it is not true that, accused No.1 Raman @ Ramesh Sureshbhai Pavar had gone to her house and had intimidated her, which would suggest that, the appellant had neither gone to her house nor had he intimidated her. From the deposition of this witness, it is clear that, she has not seen the incident. She does not say about the presence of the appellant in the proximity of time and place of incident. According to her, the appellant's uncle came to call deceased Kisanbhai and deceased Kisanbhai went with him, but there is no evidence that the appellant was present within the proximity of time and place of incident.
12 The appellant came to be arrested on 14.5.2003 and thereafter he alleged to have discovered the weapon on the very next day i.e. on 15.5.2003. The discovery of the weapon is found on a open place and the factum was not supported by any independent panch witnesses. Even otherwise, discovery is proved, only would show conclusively that, the person discovered the weapon had knowledge about the concealment of such weapon at the place where from it is discovered and, therefore, mere discovery can be of no use. Discovery panchnama is at Exhibit-33. Having gone through the judgment also, we found that, what weighed with the Trial Court is that the weapon was discovered by the appellant and the same weapon is certified by the FSL appears to have been used in the killing of the victim.
13 In our view, the evidence led by the prosecution does not establish the presence of the appellant within the proximity of time and place of incident. The discovery part is not supported by independent witnesses and reliance placed on the evidence of the Investigating Officer regarding knowledge of the appellant about concealment of the weapon. Evidence of PW-10 Eknath Namdev Pujari would show that Kalpanaben, wife of Kisanbhai, immediately approached him after the incident, and at that point of time, she did not disclose the name of the assailants. There is no evidence about the presence of appellant in the proximity of time and place of incident. Thus, there is no evidence of the presence of the appellant–accused in the proximity of time and place of incident. There is no evidence of use of weapon by the appellant. There is no evidence that the appellant tried to play with the modesty of the wife of the victim. There is no evidence that he had called the deceased through his uncle nor there is any evidence to show that he had fired one shot at the deceased in the chest. The discovery panchnama would, at the best, only establish an offence of concealment of weapon and not use of weapon by the appellant in the commission of crime of murder as per the established proposition of law.
14 For the foregoing reasons, this Court is of the view that the Trial Court has erred in appreciating the evidence and has recorded the conviction which cannot be permitted to stand. The appeal, therefore, deserves to be allowed and is allowed. The impugned judgment and order dated 18.10.2004, rendered in Sessions Case No.369 of 2003, by the learned Additional Sessions Judge, Court No.17, City Sessions Judge, Ahmedabad, recording the conviction of the appellant–accused and the sentence awarded to him is set aside and the appellant – accused Raman @ Ramesh Sureshbhai Pavar 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.) pnnair (A. J. DESAI, J.)