CR.A/68520/2002 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 685 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 ? ====================================== HITENDRAKUMAR BABULAL NAYAK Versus STATE OF GUJARAT ====================================== Appearance : MR KJ SHETHNA for the Appellant PUBLIC PROSECUTOR for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 04/12/2008 CR.A/68520/2002 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been preferred by the appellant – original accused against the judgment and order dated 20.06.2002 passed by the learned Additional Sessions Judge, Ahmedabad City in Sessions Case No.192 of 2001. Heard the learned counsel for the parties. The prosecution case rests on circumstantial evidence. The circumstances which are stated to be proved by the prosecution are last see, death by strangulation and abscondance of the accused. Learned counsel for the appellant submitted that there is nothing on record to say that the accused was last seen with the deceased at any point of time. The prosecution case at best is a telephone call that was received at the place of one Shri Garg and after attending the call she stated that she was being called by the accused to go to Chandkheda. That is the best case of the prosecution. The girl had stated to her mother about the call, but there is nothing on the record to show that she had met the accused. After going to Chandkheda the girl is said to have rested and relaxed at the house of PW No.9 and PW No.11. Both these witnesses have turned hostile. Thus there is nothing on the record to indicate that after leaving her house, the girl was ever in company of the accused until she was taken to hospital by the accused. The most important aspect of the case is that while the girl was at the residence of PW No.9 and PW No.11 a Doctor was called to check her and the Doctor has stated that she was breathing feebly and was alive. This witness has not been declared hostile. What stands out boldly is that before the accused could meet the girl, she was not in fitness of things. Thereafter, CR.A/68520/2002 3/4 JUDGMENT the girl was taken to the hospital by the accused. Therefore, circumstances of last seen is not proved against the accused. Learned counsel for the appellant further urged that the strangulation by the accused is not established because, according to the facts available on record the accused came after deceased became unwell. The other circumstance which is not incriminating is the abscondance of the accused. According to the learned counsel for the appellant, there is no circumstance which can be said to be of any incriminating nature. There is no whisper of accused being last seen with the deceased. Strangulation is not liable to be attributable to the accused. In these circumstances, the conviction and sentence imposed by the Sessions Court cannot be maintained. Per contra, Shri Maulik Nanavati, Additional Public Prosecutor relied on a decision of the Hon'ble Supreme Court in the case of State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254. We have gone through the case. In this case, the husband was under an obligation to explain an incriminating circumstances which are coming forth on behalf of the prosecution case. In the present case last seen is not established. Strangulation cannot be presumed to have been done by the accused, because no one has stated that the accused and deceased were together before she became unwell. The Doctor who has examined the girl at the house of PW 9 and PW 11 shows that when the girl was taken to the hospital she was feebly breathing. Therefore, this cannot be stated that the strangulation was made by the accused. When the last seen is not established, the other circumstances do not necessarily indicate incriminating character of the accused and in that background mere abscondance itself would not be sufficient to conclude that the accused alone was the person who could cause this incident. In that CR.A/68520/2002 4/4 JUDGMENT background, we are of the considered opinion that the prosecution has not made out a case against the accused and the case of the proseuction fails and the conviction as recorded is not sustainable. In that background the accused is entitled to the benefit of doubt and accordingly he is granted benefit of doubt and his conviction under Section 302 of Indian Penal Code is set aside and consequently life sentence is set aside. The accused is behind the bars. He is ordered to be set at liberty forthwith if he is not required in any other case. Direct Service is permitted. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd