CR.A/28020/2002 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 280 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MITHILESHKUMAR DWARKAPRASAD PANDEY - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR HRIDAY C. BUCH Appellant MS. H.B. PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 18/11/2008 ORAL JUDGMENT CR.A/28020/2002 2/7 JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has filed present appeal u/s 374 (2) of the Code of Criminal Procedure, 1973 challenging judgment and order of conviction and sentence dated 11-2-2002 rendered by learned Addl. City Sessions Judge, Court No. 9, Ahmedabad in Sessions Case No. 47 of 2001 convicting him for offence punishable u/s 302 read with Section 34 of the I.P. Code and sentencing him to undergo sentence of life imprisonment. 2. Brief facts of the prosecution case are that first informant Babubhai Ishwarlal Patel with his son Kirtibhai was doing business of selling milk on “otala” of shop of Sukhadiya Sweet Mart, opposite Jethabhai's Vav, in Ishanpur, Ahmedabad. On 16-7-2000 at late night at about 2-30, the first informant and his son Kirtibhai came at the 'otala' for selling milk. At about 3-30 late night they unloaded milk from milk-van. Thereafter the first informant went to his house but returned immediately and found that his son Kirtibhai was lying on 'Otala' of aforesaid shop in bleeding condition and was unable to speak. The family members were informed and Kirtibhai was taken to L.G. Hospital, Ahmedabad for treatment and during treatment he succumbed to his injuries. 3. On the basis of the First Information Report lodged by Babubhai Ishwarlal Patel, the father of the CR.A/28020/2002 3/7 JUDGMENT deceased offence was registered and investigation was started. At the end of investigation, the accused were arrested and charge sheet came to be filed against them. As the offence was triable by Sessions Court, the case was committed to the the City Sessions Court, Ahmedabad and it was registered as Sessions Case No. 47 of 2001. Learned Additional City Sessions Judge, Court No.6, Ahmedabad framed charge Exh. 8 for the offence punishable u/ss 302, 120-B and 34 of the I.P. Code and u/s 135 of the Bombay Police Act of the against the accused. The accused denied having committed offence and claimed to be tried and therefore the prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Code of Criminal Procedure stated that they have not committed the offence and they are innocent and have been falsely implicated in the offence. 5. After hearing the learned A.P.P. for the State and learned advocate for the accused, the learned trial Judge came to the conclusion that the prosecution has proved the charge against the appellant - accused beyond reasonable doubt and convicted and sentenced him to undergo sentence as mentioned hereinabove and acquitted two other CR.A/28020/2002 4/7 JUDGMENT accused. Being aggrieved by the said decision, the convict has preferred the present appeal. 6. We have heard learned advocate Mr. Hriday C. Buch for the appellant and learned A.P.P. Ms. H.B. Punani for the respondent – State at length and in great detail. We have also perused the impugned judgment and records and proceeding of the trial court. 7. Learned advocate for the appellant mainly submitted that there is no direct evidence to connect the appellant with the offence and the entire case is based on circumstantial evidence. The conviction is based only on discovery panchnama which is not admissible in the evidence.. Therefore, the learned trial Judge has committed error in convicting the appellant – convict and therefore the impugned judgment is required to be set aside. 8. Learned A.P.P. Ms. Punani submitted that there is sufficient evidence to connect the convict with the offence. The convict has shown muddamal weapon used in commission of the offence and therefore the learned trial Judge was justified in relying upon the evidence. Therefore, appeal is required to be dismissed. 9. The prosecution produced F.I.R. at Exh. 18. It indicates that when the first informant went to the place of business, he found that his son Kirtibhai was lying profusely bleeding with injuries on his CR.A/28020/2002 5/7 JUDGMENT neck and he was not able to speak. According to the first informant, Devesh the brother-in-law Kirtibhai who was parter in their business informed him that before about two days of the incident one Modi doing business of selling milk in their neighbourhood had given threats on account of business rivalry. It also indicates that apprehension was shown only against one Modi, who had allegedly business rivalry with the deceased. The First Information Report does not indicate that the convict was involved in the offence. Even the accusations of business rivalry are on the basis of information given by Devesh. There is no investigation with regard to this fact. Therefore, it is difficult to believe that Kirtibhai was beaten to death on account of business rivalry. 10. The prosecution examined first informant P.W.3 Babubhai Ishwarlal Patel at Exh. 17. It appears from his evidence that the witness has made improvement in his oral version and has deviated from the first information report lodged by him. In the first information report the witness has shown suspicion about involvement of one Modi in the offence. In his oral deposition, he has implicated the appellant. The witness in his oral deposition has not deposed about business rivalry between Kirtibhai and said Modi. Therefore, it appears that the witness has changed his version only with a view to support the prosecution case. Therefore his deposition does not inspire confidence. CR.A/28020/2002 6/7 JUDGMENT 11. Learned trial Judge has relied upon discovery panchnama Exh. 40. The prosecution examined P.W. 5 Narendrasinh Bahadursinh Jhala at Exh. 21 and P.W. 8 Laxmanbhai Gamabhai at Exh. 28 to prove the panchnama. According to P.W.5, his signature on the discovery panchnama was obtained at the police station. P.W. 8 has turned hostile and not supported the prosecution case. The evidence of P.W. 5 does not indicate that the discovery was made at the instance of the accused. It also indicates that he did not read the discovery panchnama. In view of this evidence, it is difficult to believe that the weapon allegedly used in the offence was discovered at the instance of the accused. It is also settled proposition that when statements made by the accused consist of several parts, some of which constitute a general confession, some are imputations of guilt on accomplices and some lead to discovery, such statements, in their entirety are not admissible under Section 27 of the Evidence Act. Considering panchnama Exh. 40, in our view, learned trial Judge has committed error in admitting the entire statements in evidence. Therefore, the learned trial Judge has committed error in relying upon discovery panchnama Exh. 40 to connect the appellant in the offence. Except this, there is no other reliable and convincing evidence to connect the appellant in the offence. Therefore, in absence of any other direct evidence, the appellant is required to be given benefit of doubt. Therefore, the CR.A/28020/2002 7/7 JUDGMENT impugned judgment is required to be set aside. 12. In the result, the appeal succeeds and judgment and order of conviction and sentence dated 11-2-2002 passed by the learned Addl. City Sessions Judge, Court No.9, Ahmedabad in Sessions Case No. 47 of 2001 for the offence punishable u/s 302 read with 34 of the I.P. Code is set aside and the appellant is acquitted of the offence charged against him and he is ordered to set free forthwith unless he is required in any other case. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/