Arjanbhai Bijalbhai Bhubhawa vs The State of Gujarat

Bankim N. Mehta, J.—The Appellant has preferred this appeal and challenged the judgment and order of conviction and sentence passed by the learned Joint District and Additional Sessions Judge, Fast Track Court No. 7, Morbi, on 4th September, 2004, in Sessions Case No. 19 of 2004, convicting him for the offence punishable u/s 302 of the I.P. Code and Section 37(1) and 135 of the Bombay Police Act and sentencing him to undergo life imprisonment and to pay fine of Rs. 15,000/-, in default, to undergo SI for one year for the offence u/s 302 of the I.P. Code and to undergo RI for four months and to pay fine of Rs. 500/-, in default, to undergo SI for one month for the offences u/s 37(1) and 135 of the B.P. Act. Both the sentences were ordered to run concurrently.

According to the prosecution case, on 22nd December, 2003, the accused, on account of altercation with the deceased got instigated and caused injuries with stick and axe to the deceased Navghanbhai Mashrubhai on various parts of his person. On account of the injuries, Navghanbhai Mashrubhai died.

On the basis of the FIR lodged by Mashrubhai Valabhai Rathod, father of the deceased, before Wankaner Taluka Police Station, an offence was registered and investigation was started. During the course of investigation, dead body of Navghanbhai was sent for postmortem. Statements of the witnesses were recorded. Panchnama of scene of offence and discovery of clothes and weapons were drawn. At the end of investigation, charge sheet came to be filed against the accused in the court of learned J.M.F.C., Wankaner. As the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court at Morbi and it was registered as Sessions Case No. 19 of 2004. The learned Joint District and Additional Sessions Judge, Fast Track Court No. 7, Morbi, framed charge vide Exhibit-1 against the accused for the aforesaid offences. The charge was read over and explained to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, the incriminating circumstances appearing against him in the evidence were explained to the accused. The accused in his further statement recorded under Section-313 of the Code of Criminal Procedure denied having committed the offence and stated that he is innocent and has been falsely implicated in the offence. After hearing the learned Advocate for the accused and the learned APP, the Trial Court convicted the accused and sentenced him, as mentioned here-in-above. Being aggrieved by the said judgment and order, the accused has preferred this Appeal.

Learned Advocate Mr. Madan Singho Barod, for the Appellant, submitted that the entire case is on circumstantial evidence and the prosecution has not proved the motive. He further submitted that the only piece of evidence alleged is discovery of clothes of the Appellant with bloodstains of the deceased. This evidence is not sufficient to connect the Appellant with the offence as this is only a corroborative piece of evidence. Therefore, the learned Trial Court committed an error in convicting the Appellant. He, therefore, submitted that the appeal against the conviction of the Appellant may be allowed.

On the other hand, learned APP Mr. K.L. Pandya has submitted that, except, the discovery of bloodstained clothes and the weapons, there is no other evidence to prove the guilt of the accused - Appellant, but, that evidence is sufficient to connect the accused with the the offence and, therefore, the learned Trial Judge did not commit error in convicting the Appellant and no interference is warranted in the judgment and order of conviction and sentence passed by the Trial Court. Mr. Pandya, therefore, urged to dismiss the appeal and confirm the judgment and order of conviction and sentence recorded by the Trial Court against the accused.

We heard learned Advocate Mr. Madan Singho Barod, for the Appellant and learned APP Mr. K.L. Pandya for the State. We have also perused the record and proceedings of the Trial Court in the context of rival submissions.

The entire case rests upon the circumstantial evidence and there is no direct evidence with regard to the offence. In order to prove the homicidal death, the prosecution examined PW-1 Dr. Abumiya Jusabmiya Mashakputra, at Exhibit-5 and produced the postmortem report at Exhibit-6. It appears from the medical evidence that the deceased had seven external injuries and cause of death was shock due to injury to brain. It is not a defence that the deceased had suicidal or accidental injuries. Therefore, the prosecution has been able to prove that the death of Navaghanbhai was homicidal.

As observed earlier, the entire case stands on circumstantial evidence. The prosecution has not alleged any motive in commission of the crime. Even the witnesses examined by the prosecution have turned hostile and not supported the prosecution case. The first informant - PW-4 Masrubhai Bhalabhai Rathod, examined at Exhibit-21, father of the deceased, has not supported the prosecution case and has been declared hostile. The learned APP has cross-examined the witness, but, even during the course of cross-examination also, the prosecution has not been able to prove that the accused was responsible for total injuries to the deceased. Therefore, the only incriminating evidence against the accused is the panchnama of discovery of bloodstained clothes of the accused and weapons. PW-2 Dipakkumar Shantilal Trivedi, examined at Exhibit-14, is a panch of panchnama of discovery of clothes of the accused and weapons. It appears from the evidence of the witness that the accused allegedly took them to his house and discovered shirt and trouser allegedly worn by him at the time of commission of offence from a heap of clothes on the cupboard in the house. It also appears from his evidence that the accused allegedly discovered a stick and axe from garbage and hedge respectively from outside the house. The panchnama at Exhibit-16 also indicates that the clothes were discovered from the heap of clothes above the cup board in the house and the weapons were discovered from open space. It also appears from the panchnama at Exhibit-16 that the trouser without string was allegedly discovered from a heap of clothes on the cupboard in the house. It contained bloodstain marks. The panchnama also indicates that one shirt was also discovered from the same place. The clothes were sent to FSL for examination. It is true that the FSL report - Exhibit-32 indicates that the trouser was having bloodstain marks of blood group belonging to the deceased, but in view of the fact that it was without string, it is difficult to believe that it could have been worn by the accused at the time of committing the offence.

As regards the discovery of weapons allegedly used in the offence, as it was discovered from open place, in our view no reliance can be placed upon the panchnama with regard to the discovery of weapons.

The prosecution has examined the first informant Masurubhai Bhallabhai Rathod,who has not supported the prosecution case. FIR, produced at Exhibit-22, is lodged by the witness, also does not allege any suspicion against the accused. Therefore, except, the bloodstain marks on the discovery of clothes of the accused, there is no other reliable and convincing evidence to implicate the accused. It is the settled proposition that in case of circumstantial evidence, prosecution is required to prove the motive, but, in the present case, the prosecution has not been able to prove the motive and, therefore, in our view, the Trial Judge committed an error in relying upon the sole evidence of discovery of clothes in connecting the accused with the offence even the discovery of clothes is made after two days of the incident and the trouser which contains the bloodstain marks had no string. Therefore, it is difficult to believe that the said trouser was worn by the accused at the time of commission of offence. In absence of any other substantive piece of evidence, the learned Trial Judge committed error in relying upon the panchnama of discovery of clothes. Therefore, in our view, the impugned judgment and order of conviction and sentence of the Appellant- accused is required to be set aside and benefit of doubt is required to be given to the accused.

The resultant effect of the foregoing discussion is that the appeal is allowed. The impugned judgment and order dated 4.9.2004, rendered in Sessions Case No. 19 of 2004, by the learned Joint District and Additional Sessions Judge, Fast Track Court No. 7, Morbi, recording conviction of the Appellant-original accused - ARJANBHAI BIJALBHAI BHUBHAWA, for the offences punishable under Sections 302 of the Indian Penal Code and Section 37(1) and 135 of the Bombay Police Act and the sentence awarded to the Appellant accused is set aside and the Appellant is acquitted of all the charges levelled against him. He shall be released from prison forthwith if he is not required to be detained in connection with any other offence. Fine, if any, paid by him, the same shall be refunded to him.