(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These three appeals arise out of the judgment and order rendered by the Sessions Court, Junagadh in Sessions Case no. 64/2003 on 11/9/2004. Appellant nos. 1 & 2 in Criminal Appeal no. 2089/2005 were accused nos. 1 & 4 respectively before the Trial Court. The appellant in Criminal Appeal no. 2281/2005 was accused no. 3 before the Trial Court and appellant in Criminal Appeal no. 1288/2010 was accused no. 2 before the Trial Court. For the sake of convenience of this Court, these three appeals have been heard together and they are disposed of by this common judgment.
2. The accused were charged for the offences punishable under section 302 read with section 34 in the alternative section 114 of the Indian Penal Code for having caused murder of deceased Raju @ Dany Nagabhai Rabari on 18/6/2003 at 19.50 hrs near Kamdar Society at Junagadh.
2.1 As per the prosecution case, the incident was seen by first informant viz. Hitesh Nagabhai Rabari, who happens to be a brother of deceased Raju @ Dany and one Rudabhai Devabhai, who happens to be a uncle of the deceased.
2.2 As per the prosecution case, the deceased and first informant Hiteshbhai had gone to Vachhara Dada Pan Shop for having pan. While they were returning towards their home, the accused persons arrived in an Autorickshaw. When they came down from the Autorickshaw with weapons, the deceased asked first informant to flee away. As the first informant started running away, he heard the shout from his deceased brother. He, therefore, turned around and found that his brother had received injury with a spear. He noticed that on receiving the injury, his brother had fallen down and four persons attacked the deceased with respective weapons in an indiscriminate manner and then they fled away in Autorickshaw, in which they had come. The incident occurred at the distance of about a kilometer from the police station. However, the first informant remained with the body for about two hours and then lodged the FIR with Azad Chawk Police Station. The offence was registered and investigated. At the end of investigation, the Investigating Agency found that there was sufficient material against the accused persons to connect them with the murder of deceased Raju @ Dany. Therefore, they filed charge sheet in the Court of Chief Judicial Magistrate, Junagadh, who in turn committed the case to the Court of Sessions and Sessions case no. 64/2003 came to be registered.
3. The charge was framed at exh 1 against all the four accused for the offence punishable under section 302 read with section 34 in the alternative with 302 with section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and came to be tried.
4. The prosecution examined the first informant Hiteshbhai Nagabhai Rabari and PW 2 Rudabhai Devabhai as eye witnesses to the incident. The prosecution also examined the Doctor, who had performed the postmortem and led other evidence in form of report from FSL and the deposition of Investigating Officer.
5. The Trial Court found that the prosecution was successful in establishing the charges against the accused persons, therefore, convicted them for the offences punishable under section 302 read with section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for life with fine of Rs. 500/ and in default further rigirous imprisonment for one month. The Trial Court also convicted the accused persons for the offence punishable under section 135 of the Bombay Police Act and imposed fine of Rs. 100/ and in default of payment of, further rigorous imprisonment for 5 days. The accused persons were given benefit of set off.
6. We have heard learned advocate Mr. Dagli with learned advocate Ms. Kapadia and learned advocate Ms. Sadhana Sagar for the appellants and learned APP Mr. Kodekar for the respondent State.
7. Learned advocate for the appellants accused persons has contended that the prosecution has projected two witnesses as eye witnesses, but if their depositions are seen, it would be clear that either they are not eye witnesses to the incident or they are not telling the truth about the incident and with their doubtful depositions, the accused persons could not have been convicted. It is contended that there are improvements in the evidence of these witnesses from the original version either in the FIR or in the police statement, which apparently appeared to be innocuous, they were desiring to suit the requirements of the prosecution case. It is contended further that the evidence of these witnesses totally rules out the possibility of the incident having occurred anywhere else, whereas there is another set of evidence on record, which would show that the incident may have occurred at any other place. The persons claiming to be eye witnesses are not only silent, but, as such the incident had not occurred at the place where they claim to have seen it occurring.
8. Lastly, it was contended that the investigation is not properly carried out. The Investigating Officer has not probed into other possibilities emerging from the materials that emerged during course of investigation viz. the incident having occurred at an altogether different places namely inside the flour mill, therefore, the investigation is also doubtful.
9. It was, therefore, submitted that the appeals may be allowed.
10. Learned APP Mr. Kodekar has opposed these appeals.
11. We have examined the record and proceedings in context of the rival submissions. We find that first informant, who happens to be a brother of deceased Raju is examined at exh 40. He is Hitesh Nagabhai Rabari. He says that he and his brother had gone to have pan and while returning, the incident occurred. His deposition, taken at face value, would go show that he had seen the entire episode. He attributed different weapons to different accused and use of these weapons by the accused persons. According to him, the incident occurred in the open street near the flour mill. The panchnama of place of incident at exh 67 would also show that the incident occurred out side the flour mill, where patch of blood was found. The inquest panchnama at exh. 51 would also reveal that dead body was lying in the street near the flour mill.
12. The version of Rudabhai Devabhai (exh 42) has supported the say of first informant Hiteshbhai, where he has also admitted that the accident occurred in the street near flour mill. The map of place of incident produced at exh 46 would also describe the place in the street to be the place, where patch of blood was found.
13. In short the prosecution case is that the incident occurred in the street near the flour mill, where assailant arrived in an autorickshaw and attacked the deceased. The deceased fell on the ground and assailants went away in the autorickshaw. Nowhere it emerges from the evidence of eye witnesses that either the deceased or any of the assailants entered in the flour mill or there was any attempt on the part of the deceased to run away, fighting or escaping, and the assailants chased him. This picture is that the incident occurred in the street only and nowhere else.
14. With these evidence, if the other set of evidence led by prosecution is seen, the report of mobile FSL, Junagadh at exh 68 would reveal that there was a patch of blood on the street, besides that there were blood spots on the door frame of the flour mill, so also, on the wooden plank, besides the door of the flour mill. There were bloodstains on the tins containing flour inside the flour mill besides stains on the sourthen wall and wooden lying inside the floor mill. There were bloodstains on the floor and there were marks of violence and fight inside the flour mill. The sickle and the knife were found lying behind the board of the flour mill. The knife had bloodstains.
15. The Investigating Officer, in his deposition at exh 66, has admitted that during the investigation, it was found that at the place of incident, there were blood spots at various places. He also admits that bloodstains were found on the machine of the flour mill inside the flour mill and the FSL Officer, during the visit of the place of incident, had indicated this aspect and therefore, samples of the bloodstains from the flour mill were also directed to be taken. He admits that while drawing the panchnama of the place of incident, he had not seen direction of the wall of the flour mill on which bloodstains were found. He admits that blood stains were found on different places in the flour mill. He admits that it was recorded during the investigation that the deceased also had deadly weapon with him.
16. The picture that emerges from the forgoing discussion of the evidence is that here the case depends on evidence of two eye witnesses, who claimed that they show the assailants coming there, they show actual attack and they show the assailants going away. According to them, the incident occurred in the open street. According to them, assailants had not entered the flour mill. As against that, it emerges from the evidence of mobile Unit FSL report that there were marks of violence and fight inside the flour mill. There were blood marks found at various places on the floor and walls, tins and machineries of the flour mill. Entire possibility of incident having occurred in the flour mill is contrary to the version of eye witnesses. The Investigating Officer does not claim to have made any investigation in that direction to examine the truth in respect of version of eye witnesses during the course of investigation. He has not probed into one of the direction which falsify the case of the eye witnesses. The investigation, therefore, can not be said to have been conducted in satisfactory manner.
17. The version of the eye witnesses, on which the prosecution case depends, suffers from the serious defects of being possible falsehood. When they do not say anything about any occurring inside the floor mill, either they have not seen the incident and claim to be eye witnesses or they are not telling truth about the incident and what they said in their depositions can not be relied upon to confirm the conviction for murder.
18. We have no reason to doubt the opinion of the FSL expert, particularly when knife stained with blood and blood stains were found lying inside the flour mill behind the door. We also found that sickle and the knife were lying behind the flour mill at the place where the puddle of blood was found in the street. This also strengthens our doubt about the eye witnesses not being truthful. The Trial Court has overlooked these aspects and has recorded conviction, which can not be confirmed.
19. The appeals, therefore, deserve to be allowed and the same are allowed. The conviction and sentence of the appellants under Section 302 read with section 34 of the Indian Penal Code, 1860 recorded by the Trial Court is hereby set aside. The fine paid, if any, to be refunded. Since the original accused no. 3 Ajay @ Vijay Bhagvanji is on bail, his bail bond shall stand cancelled.
(A.L.DAVE, J) (N.V.ANJARIA, J) *asma