The present appeal arises out of a judgment and order rendered by Sessions Court, Bhavnagar in Sessions Case No.84 of 2005 on 25.05.2006 convicting the appellant, Faruk Allarakha Hamidbhai, for the murder of his brother-in- law Altaf Kadarbhai, by inflicting knife blows. He was sentenced to undergo imprisonment for life with fine of Rs.3,000/- and in default, further imprisonment for 12 months. He was given the benefit of set off. 2. The prosecution case, in brief, is that the appellant and the victim were brother-in-law of each other. On account of some domestic dispute, the appellant assaulted deceased on 25.01.2005 at about 23-00 hours and caused fatal injuries to him. It also appears that the appellant also suffered injuries in the said transaction. On the basis of the FIR given by the mother of the victim, Jembaiben Kadarbhai, offence was registered and case was investigated and ultimately, charge- sheet was filed in the Court of learned Chief Judicial Magistrate, Bhavnagar, who, in turn, committed the case to the Court of Sessions and Sessions Case No.84 of 2005 came to be registered. Charge was framed at Exh.3 against accused. The accused pleaded not guilty to the charge and came to be tried. Hence, this appeal.
3. The prosecution has led evidence in support of its case. It is contended that majority of witnesses have turned hostile, who could have deposed something about the episode. However, the trial Court has relied upon the medical opinion and history recorded by the medical officer in the medical case papers, in recording conviction.
4. Learned advocate for the appellant submitted that the trial Court has erred in relying on the history recorded by the doctor in the medical case papers and his deposition, which would implicate the appellant with the offence. The trial Court could not have ignored the fact that the hostile witnesses do not prove anything and mere statement by way of history to the doctor made by the deceased cannot found basis of conviction, when he himself admitted that the history was given by the aunt of the deceased.
5. Learned APP has opposed this appeal. According to him, contemporaneous record was found in the medical papers. He submits that the history was given by the deceased himself and as such, no error is committed by the trial Court in relying on the version given by the doctor, as the doctor has himself deposed before the Court. The appeal may, therefore, be dismissed.
6. We have examined the record and proceedings in context of rival submissions. What we find is except official witnesses and one panch witness about discovery, all witnesses have turned hostile and have not supported the prosecution case.
7. So far as the history recorded by the doctor in medical case papers is concerned, it has to be recorded that the doctor has himself admitted in his cross-examination that history was given to him by the aunt of the deceased. From the said medical case papers, we also notice that the condition of the victim when he was brought before the doctor was critical. Pulse was feeble and he was disoriented, and he, therefore, could not give the history properly and it would not be safe for us to rely on the history given by the deceased who was disoriented at the time of giving history.
8. It is also required to be noted that the accused - appellant himself had suffered injuries. How did he suffer the injuries, is not explained by the prosecution. We are, therefore, facing such situation where we do not have the genesis of the incident nor the sequence of the occurrence. The doctor does not assertively say that the history was given by the deceased because his version in the examination-in- chief is contradictory to the admission in the cross- examination. The resultant effect is that the Court has before it medical history possibly given by the deceased in a disoriented state of mind and the Court does not have any explanation coming from the prosecution as to the injuries suffered by the accused himself. With these two major short coming, in absence of any other evidence, it would be unsafe to confirm the conviction recorded by the trial Court. The appeal, therefore, deserves to be allowed.
9. Accordingly, the appeal is allowed. The judgment and order of conviction and sentence rendered by the learned Second Additional Sessions Judge, Bhavnagar on 25.05.2006 in Sessions Case No.84 of 2005 for the offence punishable under Section 302 read with Section 135 of the Bombay Police 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.
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[A.L. Dave, J.] Sd/-
[Paresh Upadhyay, J.] #MH Dave