State of Gujarat vs Kantibhai Sukhabhai Asari

H.B. Antani, J.—Heard Ms. Krina Calla, learned APP for the appellant-State. The appeal is admitted.

This is an appeal preferred u/s 378[1][3] of the Code of Criminal Procedure, 1973 [''Code'' for short] against the judgment and order of acquittal dated 28.8.2008 passed by the Additional Sessions Judge, Court No. 21, City & Sessions Court, Ahmedabad in Sessions Case No. 345 of 2007. Learned Sessions Judge acquitted the respondent for the offence punishable u/s 302, 201 and 120B as well as 114 of IPC and u/s 135 of Bombay Police Act.

As per the prosecution case, a complaint was filed against the accused with Naroda police station for the offence punishable u/s 302, 201 and 120B as well as 114 of IPC and u/s 135 of Bombay Police Act. On the basis of the complaint, investigation was entrusted to the investigating officer who completed the investigation and charge-sheeted the respondent and produced him before the Judicial Magistrate First Class, Ahmedabad, who, in turn, committed the case to the Sessions Court as the case was exclusively triable by the Sessions Court. The prosecution, during the trial examined 12 witnesses and produced documentary evidence in order to establish the guilt of the respondent in the commission of offence. Learned Additional Sessions Judge, on the basis of the evidence on the record of the case held that the prosecution has miserably failed to prove involvement of the respondent in the commission of offence and as the entire link connecting the respondent with the commission of offence was not established, the learned Additional Sessions Judge acquitted the respondent for the offence punishable u/s 302, 201 and 120B as well as 114 of IPC and u/s 135 of Bombay Police Act.

Ms. Krina Calla, learned APP representing the appellant State submitted that the learned Additional Sessions Judge has not appreciated the evidence on the record of the case in its true perspective. The prosecution has examined 12 witnesses and produced documentary evidence . However, the learned Judge erred in holding that there was no cogent evidence indicating the involvement of the respondent in the commission of offence and as the entire link was not established by the prosecution, the respondent was required to be acquitted. Learned APP submitted that the learned Judge has egregiously erred in holding that since most of the prosecution witnesses had virtually turned hostile and rescinded from their original version given in their statements recorded u/s 161 of the Code before the investigating officer, the prosecution case has become weak and thus, the learned Judge relying on the oral depositions adduced by the prosecution witnesses acquitted the respondent. Learned APP submitted that the reasoning given by the learned Addl. Sessions Judge suffers from the infirmity and, therefore, the order passed by the learned Judge deserves to be quashed and set aside and the appeal requires to be allowed.

We have heard the learned APP at length and in great detail. We have also perused the record and proceedings of Sessions Case No. 345 of 2007 which is produced before the Court. Prosecution has adduced oral depositions and documentary evidence in order to bring home the guilt against the respondent. Complaint was given by Head Constable Motibhai Parmar vide exh.7, while Dr. Hinaben Choksi who carried out post-mortem has been examined vide exh.18. Ramanbhai Kalubhai, relative of deceased has been examined vide exh.22 while Ramsing Dhanabhai, brother-in-law of deceased has been examined vide exh.24. Considering their depositions, in our view, they have not indicated involvement of the respondent in the commission of offence. Material witnesses have not been examined by the prosecution so as to prove involvement of the respondent in the commission of offence. Owner of the house in which the deceased was staying has not been examined by the prosecution. Deceased and respondent were residing in one house is also not established by the prosecution in cogent manner. Ramsing Dhanabhai, brother-in-law of deceased who has adduced deposition vide exh.24 has supported the prosecution version, but there is no corroborative evidence to suggest that deceased and respondent were residing together in one house. It is also not established by the prosecution that the deceased and the respondent were last seen together before gruesome murder was committed. Even motive of the murder is not established by the prosecution so as to bring home the guilt against the respondent. In view of the aforesaid facts and circumstances, since the entire link connecting the respondent with the commission of offence u/s 302 and 201 is not conclusively established by the prosecution, the learned Judge acquitted the respondent for the offence as mentioned above. We do not see any reason to interfere with the reasoning given by the learned Judge as apparently there is no infirmity in the order passed by him. It is incumbent upon the prosecution to establish each and every link connecting the respondent with the commission of offence and since there are many chinks in the armour of the prosecution case, the learned Judge has rightly acquitted the respondent.

This Court is also aware of the fact that this is an acquittal appeal preferred u/s 378[1][3] of the Code in which the Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired necessary confidence of the learned Additional Sessions Judge who had the opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Additional Sessions Judge, the Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Additional Sessions Judge and this Court is of the opinion that expression of general agreement with the view taken by the learned Additional Sessions Judge would be sufficient in the facts of the case. We, therefore, do not find any infirmity in the order passed by the learned Additional Sessions Judge and therefore, the appeal deserves to be dismissed.

For the foregoing reasons, the appeal is without merit, and the same is, therefore, dismissed. The judgment and order of acquittal dated 28th August, 2008, passed by the learned Additional Sessions Judge, Court No. 21, City Sessions Court, Ahmedabad in Sessions Case No. 345 of 2007, is hereby confirmed.