This appeal arises out of judgment and order rendered by Sessions Court, Mehsana in Sessions Case No.227 of 2000 on 01.05.2001 convicting the appellant – original accused for an offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life with a fine of Rs.200/-, in default, further rigorous imprisonment for seven days. The trial Court also convicted the appellant accused for an offence punishable under Section 135 of the Bombay Police Act and sentenced him to undergo rigorous imprisonment for four months with a fine of Rs.50/-, in default, further rigorous imprisonment for three days. The sentences were ordered to run concurrently. 2. The prosecution case, in brief, is that the appellant caused death of Jethabhai Rugnathbhai Chaudhari on 11.06.2000 between 12-00 noon to 16-00 hours near the bore- well in the field of the deceased at village Vithoda, Tal. Kheralu by attacking the deceased with a wooden-log and then with a cement concrete ring.
2.1 The incident occurred in the field of the deceased near his bore-well and there was no eye-witness to the incident. The investigating agency filed the charge-sheet on the basis of circumstantial evidence in the Court of Judicial Magistrate, First Class, Kheralu, who, in turn, committed a case to the Court of Sessions. The circumstances broadly were that the appellant was seen passing through the 'Neliya' near the place of incident on the day of the incident and that his wallet, containing a leaving certificate issued in the name of the appellant, was found and recovered from the place of incident; and last but not the least, the circumstance, which is relied upon, is that the appellant, while lodging the complaint in respect of the same incident on the next day, had admitted to have caused death of the deceased. The trial Court considering all these aspects recorded conviction and sentenced the appellant accused to undergo imprisonment for life with fine, as stated hereinabove. Hence, this appeal.
3. We have heard learned advocate Ms. Sadhna Sagar for the appellant and learned APP Mr. Kodekar for the respondent – State.
4. Ms. Sagar, learned advocate, submitted that this is a case of circumstantial evidence and there is incomplete chain of circumstances to connect the accused with the crime and still overlooking this aspect, conviction is recorded by the trial Court erroneously. She further submitted that motive is not attributed for commission of the murder. She further submitted that the exact time of the death of the deceased is not properly established and therefore, somebody having seen the appellant passing from a nearby a lane ('Neliya') cannot be considered as a circumstance against the accused. She further submitted that so far as discovery of weapon is concerned, it is not a discovery as contemplated under Section 7 of the Evidence Act. The panch witness, though purporting to have supported the prosecution case, does not draw attention about any preliminary panchnama or the accused having shown the place from where the weapon came to be discovered. She further submitted that so far as the recovery of wallet and leaving certificate from the place of incident are concerned, there is no evidence to connect them with the accused appellant. The certificate is issued in name of Parmar Govaji Senghaji of District Sabarkantha, whereas, the present appellant is Thakor Govaji Sendhaji and he hails from Banaskantha District. This evidence, therefore, would not be relevant for the purpose of this case as it does not belong to the appellant. This aspect has not been considered by the trial Court and hence, this appeal may be allowed.
5. Learned APP Mr. Kodekar has opposed this appeal.
He has drawn our attention to the evidence of PW3 – Fuljibhai Kuberbhai Chaudhri (Exh.11) – panch witness of panchnama of place of offence, PW4 – Chaudhri Ramjibhai Fuljibhai (Exh.16) – panch witness of discovery panchnama under Section 27, PW11 – Dineshbhai Jivrambhai Chaudhri (Exh.25), who spotted the accused person at about 1-00 O'clock crossing the 'Neliya', PW12 – Virsingbhai Rugnathbhai Chaudhri (Exh.26), who spotted the cement ring with the bloodstains, wallet and diary at the scene of the offence. Mr. Kodekar, learned APP, further submitted that the clothes of the appellant were found with bloodstains of the group of the deceased, which is a strong circumstance of the appellant which is expected to be explained by the defence. Under the circumstances, the trial Court cannot be said to have been committed any error and the appeal, therefore, may be dismissed.
6. We have examined the record and proceedings in context of rival submissions.
7. Learned advocate Ms. Sagar is right when she says that the case depends upon circumstantial evidence, as there was no direct evidence led with the prosecution to connect him with the crime. So far as the circumstances are concerned, we must, at the outset, say that no motive is attributed to the appellant for causing death. All that is emerging from the material collected by the investigating agency is that the accused appellant entered the field of the deceased while chasing a rabbit. But that part emerges from the FIR lodged by the accused on the day next to the incident which is confession before the police. Even the trial Court believes it to be inadmissible evidence. The Hon'ble Supreme Court of India, way back in 1966, in case of Aghnoo Nagesia versus State of Bihar reported in AIR 1966 SC 119 has held that confession before the police would not hit by Section 25 of the Evidence Act. The provision is imperative and a confession made to a police officer, under no circumstances, is admissible in evidence against the accused. The section covers a confession made even when the accused was free and not in police custody, as also the one made before any investigation has begun. The term “accused of any offence” would cover any person accused of an offence at the trial whether or not he was an accused of the offence when he made the confession. Therefore, the motive part is totally missing. Although the trial Court has tried to draw some motive on the basis of some statements based on hearsay and again by trying certain conjunctures which is not permissible in law. We, therefore, conclude that the prosecution has not been able to establish any motive in the present case.
8. So far as the evidence as to the appellant having been seen passing through the 'Neliya' near the place of incident is concerned, his being seen in proximity of place is established but not in proximity of time because the prosecution has not been able to establish the exact time of death; and that again would be only one of the circumstances, which would serve at the best as one of the links of incomplete chain of circumstances to connect the accused with the crime.
9. The panchnama of place of incident, which is duly proved by the evidence of the panch, would indicate that the wallet was found containing leaving certificate. It is the case of the prosecution that the said certificate was in favour of the accused – appellant. However, it is clear from evidence of the investigating officer that the said leaving certificate, forming part of muddamal, is issued in favour of Govaji Sendhaji Parmar. In the said leaving certificate at Exh. 15, his place of birth is shown to be Village Kodram, Tal. Vadgam, District Banaskantha, whereas, the name of the accused, as per the prosecution case, is Thakor Govaji Sendhaji. Thus, there is a discrepancy in the name of the person in whose favour the leaving certificate is issued, in the name of the accused. There is no material on record to reconcile this discrepancy nor is there any material to show that the leaving certificate belongs to the accused and none else. In a case of circumstantial evidence, evidence must lead an infallible inference and involvement of the accused in the offence and should leave no scope for any hypothesis of innocence.
10. It is also required to be noted that the discovery of weapon by the accused is not duly proved. Panch witness Chaudhri Ramjibhai Fuljibhai (Exh.16) failed to make any mention about the drawing of preliminary panchnama, making of any statement by the accused at that point of time relating to discovery of the weapon and/or use of that weapon in the commission of the crime. Therefore, it cannot be said that the discovery of the weapon by the accused is duly proved by the prosecution.
11. It is also required to be noted that the clothes of the appellant were found stained with blood of the group of the deceased, but, here also, the same clothes are alleged to have been discovered, as also the weapon, by discovery panchnama, which is not duly proved considering the evidence of Chaudhri Ramjibhai Fuljibhai (Exh.16) as discussed hereinabove.
12. What emerges from the foregoing discussion is that;
(i) motive is not proved;
(ii) discovery of weapon and bloodstained clothes of the accused is not proved;
(iii) time of death is not proved;
(iv) presence of the accused in proximity of time of death and place of incident is not proved; and
(v) FIR given by the accused on the next day of the incident containing confession is inadmissible in evidence.
13. The above stated features do not complete the chain of circumstances to connect the accused with the crime, which part is overlooked by the trial Court. The conviction is, therefore, not well recorded and cannot be permitted to stand.
CR.A/865/2001 10/10 JUDGMENT
14. This appeal is allowed. The judgment and order of conviction and sentence dated 01.05.2001 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.227 of 2000 is hereby quashed and set aside. The present appellant (accused) - Thakor Govaji Sendhaji is acquitted of the offences charged against him. He is ordered to be set at liberty forthwith, if not required in any other case. Fine, if any paid by the appellant, be refunded to him.
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[A.L. Dave, J.] Sd/-
[N.V. Anjaria, J.] #MH Dave