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2010 DIGILAW 241 (GUJ)

Bhachabhai Mahadevbhai Ayar v. State of Gujarat

2010-05-06

A.L.DAVE, BANKIM N.MEHTA

body2010
JUDGMENT : A.L. DAVE, J. 1. The appellant challenges judgment and order rendered by Sessions Court, Patan dated 15.03.2004 in Sessions Case No. 613 of 2002 (Old Case No. 597 of 2002). The appellant is convicted for the offence of murder of Babubhai Bhayabhai, allegedly committed by him between 12:00 hours of 24.08.2000 to 09:00 hours of 25.08.2000 in the outskirts of Village Madhuma, Tal. Santalpur, District Patan: 1.1 For the said offence, the appellant is convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs. 1,000/- in default, to undergo further simple imprisonment for six months. The appellant is also convicted for the offence punishable under Section 398 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for eight years with a fine of Rs. 500/- in default, to undergo further simple imprisonment for three months. 2. Learned Advocate, Mr. Rasid M. Valiulla, for Mr. Tirmizi, for the appellant, submitted that the case of the prosecution depends on circumstantial evidence. The prosecution has not been able to complete the chain of circumstances. The fact that the deceased died a homicidal death has not been proved by the prosecution. While drawing attention towards evidence of Prosecution Witness No. 3-Vira Davraj Ayar, he submitted that the appellant is alleged to have invited all the three boys to go with him. If appellant had any intention of committing murder of the deceased, he would have invited only him and not the other boys. Learned Advocate submitted further that the FIR is lodged after four days of the incident, that too, upon action being initiated by Police on basis of anonymous telephone call received by Police. Who made that call is not even investigated upon and the first informant had by then even cremated the deceased. Learned Advocate submitted further that the FSL Report and arrest Panchnama would reveal that the appellant had no injury on his person and that his clothes also did not have any blood marks. As such there is no continuous chain of circumstances, which would connect the appellant with the crime. The trial Court overlooked this aspect and therefore the conviction may be set aside by allowing the appeal. 3. Learned APP, Mr. Parikh has opposed this appeal. 4. As such there is no continuous chain of circumstances, which would connect the appellant with the crime. The trial Court overlooked this aspect and therefore the conviction may be set aside by allowing the appeal. 3. Learned APP, Mr. Parikh has opposed this appeal. 4. The facts of the prosecution case in brief is that the appellant invited the deceased and two other boys to join him for going to graze the cattle. The deceased joined him; whereas two others refuse to do so. This happened on 24.08.2000. Thereafter the deceased was not found but his dead-body was found on 25.08.2000 near the pond. The relatives were informed, who went there to collect the body and ultimately cremated the dead-body. On 28.08.2000 the Police received a telephone call informing that Bhachabhai Mahadevbhai Ayar committed murder of Babubhai Bhayabhai. The Police therefore went for an inquiry and it was found that deceased Babubhai Bhayabhai had expired and his dead-body was cremated. At that point of time, the father of the deceased informed the Police about the incident and revealed that when dead-body was found the ear lobe was cut and there were other injuries on the dead-body. But, he on his own did not take any action till Police approached him. On basis of the FIR offence was registered and investigated and charge-sheet filed in the Court of JMFC, Radhanpur who in turn committed the case to the Sessions and Sessions Case No. 229 of 2000 was registered which was then given Sessions Case No. 613 of 2002. 5. Charge was framed against the accused at Exh.5 to which he pleaded not guilty and claimed to be tried. The Sessions Court ultimately recorded his conviction as stated above and hence this appeal. 6. Upon perusal of the record and proceedings, it is revealed that the first informant-father of the deceased was informed that dead-body of his son was lying near the pond. He goes there, collects that dead-body and cremates but does not inform anyone about the episode. It is only after arrival of Police on 27.08.2000 that he lodges the FIR. The resultant effect is that, no Inquest Panchnama is drawn and no postmortem report is prepared. The Court is, therefore, at a loss to know the exact cause of death of the deceased. It is only after arrival of Police on 27.08.2000 that he lodges the FIR. The resultant effect is that, no Inquest Panchnama is drawn and no postmortem report is prepared. The Court is, therefore, at a loss to know the exact cause of death of the deceased. It is difficult to arrive at a conclusion that the deceased died a homicidal death, which is necessity, to be proved by the prosecution to bring home the charge of murder. 7. The Court does not have before it any material to know the condition of the dead-body when it was found and has to depend on ocular evidence. The ocular evidence would depend on ability of the witness to observe and to describe, which would again depend on the standard of education and his observation and description power. 8. Apart from not informing the Police till 27.08.2000, the first informant socially also does not take any action. 9. Another shortcoming of the prosecution case is that the accused did not have any injury on his person; nor his clothes were stained with any kind of blood and, probably, therefore they were not sent to FSL for chemical analysis. What is sent to FSL are the clothes of the deceased and blood samples collected that of the accused and the parents of the deceased. The blood group of the appellant is 'O'. Likewise, the blood group of father of victim and the group of blood found on clothes of the deceased as well as knife and the mud collected therefrom are 'O'. Therefore, it is not possible to connect the appellant with this crime. 10. As rightly submitted by learned Advocate for the appellant, the appellant is alleged to have invited all the three boys for grazing the cattle and two of them of their own did not go with him. If the appellant had intention of causing death of the victim, he only would have been invited by the appellant for grazing cattle. 11. The only evidence now left out is find of the golden ear stud which was allegedly worn by the victim. The appellant when arrested is alleged to have been found in possession of it. However, he has in his further statement firmly denied this aspect. 12. 11. The only evidence now left out is find of the golden ear stud which was allegedly worn by the victim. The appellant when arrested is alleged to have been found in possession of it. However, he has in his further statement firmly denied this aspect. 12. It is therefore not possible to conclusively accept that golden ear stud was found from the appellant and assuming for the sake of argument that it was found from him that would not, by itself, be sufficient to hold him guilty of murder of the deceased when it is not proved that the deceased was wearing such golden ear stud. The trial Court has overlooked this aspect and has mainly relied upon circumstances which are not so significant and has overlooked thus the above referred significant aspect while recording conviction. In our view, on this scanty evidence and suspicious conduct of the appellant, conviction could not have been recorded. 13. The appeal therefore merit acceptance and is allowed. The judgment and order of conviction and sentence dated 15.03.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Patan in Sessions Case No. 613 of 2002 (Old Case No. 597 of 2002) is hereby set aside. The appellant is acquitted from the charges levelled against him. The appellant be set at liberty forthwith, if not required, in any other case. Fine, if paid, be refunded to him. Appeal Allowed.