(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of these two appeals, original accused Nos. 1, 2 and 3 have challenged the judgment and order dated 14.11.2003, passed in Special Case No.46 of 2003, by the learned Additional Sessions Judge, Second Fast Track Court, Mahesna, by which all the three accused persons were convicted and sentenced for life imprisonment and to pay fine of Rs.1,000/-, in default, to undergo RI for one year for the offences under Section 302 read with Section 34 of the Indian Penal Code.
2 Brief facts of the prosecution case are as under:
That pursuant to an information received at Unja Police Station on 9.1.2003 at about 13.15 hours from one Vaghri Ashokbhai Bhikhabhai, resident of village Kamli, that his brother Dilipbhai Bhikhabhai Vaghri, aged about 25 years, having knife blows on his chest and abdominal part, was found dead near the village lake. Pursuant to the said Entry at Exhibit-21, the Police Station Officer asked the Investigating Officer to visit the place where the dead body was lying. At the place of incident, one Shantaben, wife of victim Dilipbhai Vaghri, was present. She narrated the incident involving the present accused persons which was recorded as First Information Report on 9.1.2003 by the Investigating Officer. Pursuant to the complaint lodged by Shantaben, the Investigating Officer investigated the case and filed a charge sheet in the court of learned Judicial Magistrate, First Class, Unja, who, in turn committed the case in the Court of Sessions at Mehsana. The charge which was framed at Exhibit-1 was not accepted by the accused persons and, therefore, the learned Sessions Judge, Mehsana, proceeded with the trial. After recording the evidence of 17 witnesses and perusing the documentary evidence, the learned Sessions Judge found the accused of having committed the offence and sentenced them for life imprisonment for the offence under Section 302 read with Section 34 of the I.P.C.
3 We have heard learned Advocate Mr. Girish K Patel for the appellant in Criminal Appeal No.1527 of 2003 and Mrs Rekha H. Kapadia for appellants in Criminal Appeal No. 417 of 2007 and learned APP Mr. L.B. Dabhi for the respondent – State.
4 The first contention raised by the learned Advocates appearing for the appellants is that the learned Sessions Judge has erred in relying on the evidence of Shantaben, wife of deceased Dilipbhai Vaghri, who posed herself as the eye witness of the incident. The learned Judge ought not to have accepted the version of this sole eye witness Shantaben as the topography of the scene of offence would suggest that she could not have seen the incident from the place which she claims to have seen the incident. It was further argued that the allegations made against the accused persons are that the accused No.3 – Vaghri Rajubhai Pashabhai had caught hold of the hands of the deceased; accused No.1 Vaghri Dilipbhai @ Bhuro Babubhai had gagged the mouth of the deceased and accused No.2 Vaghri Atmaram @ Atabhi Dhurabhai had given knife blows on the deceased which cannot be believed since in her cross-examination, she has admitted that she had seen the accused persons from the back side when they were running away from the place of incident.
Another contention raised by the learned Advocate for the appellants is with regard to lack of circumstantial evidence which would lead to the conclusion that the only accused persons were the assailants and had committed the offence as alleged by the complainant.
5 On the other hand, Mr. L.B. Dabhi, learned APP, has supported the reasoning assigned by the learned Trial Court and submitted that the testimony of Shantaben, who is wife of the deceased, cannot be discarded on the ground that she is being the widow of the deceased would involve the accused persons.
It is the say of Shantaben, in her deposition Exhibit-16 that prior to one day of the incident, there was a dispute between the accused persons and the deceased about money which was given by the husband of the deceased to appellant No.2, which has ultimately resulted into quarrel. It was alleged that the appellant No.2 had given kick and fist blows to the deceased. When the deceased was brought at home along with Shantaben, Ashokbhai Bhikhabhai Vaghri, her brother-in-law, was present at her residence.
On the next day at about 7’O clock in the morning, her husband went to lake for his natures call. Since her husband did not return, she went near the lake to get money for preparing food, where she met her husband, who refused to give money. At that time, all these three accused persons were making quarrel for the said amount of Rs.200/-. She returned at her home and after getting money from her uncle, she prepared food and thereafter at about 11’O clock she again went near the lake. It is her say that at that time she saw the incident in which she found that the accused No.3 had caught hold of the hands of the deceased; accused No.1 had gagged the mouth of the deceased and accused No.2 had given knife blows on the deceased. Therefore, she ran towards her husband and thereafter the accused persons ran away from the place of incident towards their residence. It is her say that she came back at her residence and informed her uncle about the incident and again went to the place of incident. A complaint was recorded by the Police Officer at the place of incident.
Now in her cross-examination, she has stated that there is a one hillock of 15 feet height between the lake and her house, which is a part of her mohalla. She has admitted that at the first instance she has seen the incident from a distance of about 60 to 70 feet when the accused were beating her husband. She had specifically admitted that she was in between hillock and her house when she saw the incident. She further admits that after climbing up the small hillock, she went at the place of incident, where she found that the accused persons running away from there and she has seen their back side.
6 As per the case of the prosecution, the scene of offence is near a wall of the lake and it is not on the hillock. Now as per the version of Shantaben, the hillock is situated between her house and the lake and, therefore, in our view, she could not have seen the incident which took place near the lake. The height of the hillock is about 15 feet and, therefore, the learned Advocate for the appellants is right in submitting that she could not have seen the incident as claimed by her. Considering the aforesaid factual aspect, we are of the opinion that, Shantaben is not an eye witness of the incident.
7 Now coming to the information received at Unja Police Station, which was received from Vaghri Ashokbhai Bhikhabhai, who his brother of deceased Dilipbhai Bhikhabhai Vaghri, it is also an admitted position that no names were given by him when the information was given about the dead body which was lying at the place of incident. Ashokbhai Bhikhabhai Vaghri, PW-3, Exhibit-18 has not stated in his deposition that he has given the names of the appellants-accused to the police when he informed about the dead body of his brother. This witness does not say that his sister-in-law Shantaben had informed him in detail about the incident which she claims to have given to her brother-in-law in her deposition before the court. This contradiction may prima facie look not important but it is relevant since the time of death of deceased is found different from medical papers than the time given by the wife of the deceased.
8 The dead body was sent to the government hospital at Unja for preparing the postmortem note at about 5.30 in the evening on 9.1.2003 i.e. on the day of the incident, in which it was found that the death is a homicidal one, which was possible by knife. However, in cross-examination, the Doctor has specifically opined that the death was prior to 12 hours, that means, the person must have died before 5.30 in the morning and not around 11'O clock in the morning, as alleged by the prosecution.
9 Now considering the circumstantial evidence, though, the knife, which was used in the incident, was discovered at the instance of accused No.2, the same is not proved by the prosecution since the panch witnesses have not supported the prosecution case. Exhibit-54 and Exhibit-55 i.e. FSL and Serological reports do not involve the accused persons since clothes of the accused were found having no blood marks, which were discovered at their instance. Even the discovery of these clothes are not proved since the panch witnesses have not supported the prosecution case.
10 Considering the overall facts of the present case, in our opinion, the Trial Court was not justified in accepting the case of the prosecution and the evidence adduced by it. In our opinion, the prosecution has failed to prove its case beyond reasonable doubt and therefore the benefit must go to the accused and, hence, both the appeals are required to be allowed.
11 In the result, both the aforesaid appeals are allowed.
The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, 2nd Fast Track Court, Mehsana, in Sessions Case No.46 of 2003 on 14.11.2003 for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code is set aside. Accused No.1–Vaghari Dilipbhai @ Bhuro Babubhai and accused No.3–Vaghari Rajubhai Pashalbhai are on bail, whose bail bonds shall stand cancelled. Accused No.2– Vaghari Atmaram @ Atabhai Dhulabhai be released from prison forthwith, if not required in any other case. Fine, if paid by them, is ordered to be refunded to them.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair