CR.A/55720/2000 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 557 of 2000 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 ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge? No. ===================================================== IMRANKHAN FAKIRBHAI SHAIKH - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ===================================================== Appearance : MR MAHESH K. PUJARA FOR MR ASHISH M DAGLI for Appellant(s) : 1, MS. MS MITA PANCHAL for Respondent - State ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/55720/2000 2/6 JUDGMENT HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has challenged the judgment and order of conviction and sentence rendered by learned Addl. Sessions Judge, Ahmedabad City, Court No. 4, Ahmedabad in Sessions Case No.231 of 1999 convicting the appellant for offence punishable u/s. 302 of the I.P. Code and sentencing him to undergo sentence of life imprisonment and to pay fine of Rs.500/- in default thereof to undergo further sentence of six months' Rigorous Imprisonment. 2. According to the prosecution case, Babubhai Khushalbhai Parmar lodged First Information Report on 12-4-1999 before Ellis Bridge Police Station, Ahmedabad that at about 6-00 in the evening his uncle Vishabhai Devabhai informed him that his brother Kishanbhai is lying on river bank near Sardar Bridge. Therefore, he went there and found that his brother Kishanbhai was lying profusely bleeding below the bridge with injuries on his chest. 3. On the basis of the first information report lodged by Babubhai Khushalbhai Parmar offence was registered as I – CR No. 255 of 1999 for the offence punishable u/s 302 of the I.P. Code before Ellis CR.A/55720/2000 3/6 JUDGMENT Bridge Police Station, Ahmedabad and the investigation was started. At the end of investigation charge sheet came to be filed against the accused for the aforesaid offence. As the offence was triable by Sessions Court, the case was committed to the City Sessions Court, Ahmedabad and it was registered as Sessions Case No. 231 of 1999. Learned Additional Sessions Judge, framed charge Exh. 1 for the offence punishable u/s 302 of the I.P. Code and u/s 135 (1) of the Bombay Police Act against the accused. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against him in the evidence. The accused in his further statement recorded u/s 313 of the Code of Criminal Procedure stated that he has not committed the offence. 5. After hearing the learned A.P.P. for the State and learned advocate for the accused, the trial Court convicted the accused and sentenced him to undergo sentence as mentioned hereinabove. Being aggrieved by the said decision, the accused has preferred the present appeal. 6. We have heard learned advocate Mr. Mahesh K. Pujara for Mr. Ashish M. Dagli for the appellant and learned A.P.P. Ms. Meeta Panchal for the respondent – State at length and in great detail. We have also CR.A/55720/2000 4/6 JUDGMENT perused the impugned judgment and records and proceeding of the trial court. 7. Learned advocate for the appellant mainly contended that there is no direct evidence to implicate the appellant in the offence and he is convicted solely on the basis of circumstantial evidence. Therefore, the impugned judgment is erroneous and it deserves to be set aside. 8. Learned A.P.P. Ms. Panchal submitted that the prosecution has proved the case beyond reasonable doubt by adducing cogent and reliable evidence and the learned trial Judge was justified in relying upon the evidence and no interference is warranted in the impugned judgment and the appeal deserves to be set aside. 9. According to the prosecution, P. Ws. 5, 6, 8 and 10 were the eye witnesses to the incident but none of them has supported the prosecution case. The witnesses have been extensively cross-examined by learned A.P.P. but nothing has been elicited to support the prosecution. Therefore, except discovery panchnama Exh.13, there is no evidence to connect the appellant with the offence. 10. First Information Report Exh. 7 has been lodged by P.W. 1 Babubhai Khushalbhai Parmar, the brother of deceased Kishanbhai. It does not disclose the name of suspect. Therefore, it is clear that there was no CR.A/55720/2000 5/6 JUDGMENT suspicion of involvement of the appellant in the incident when it was lodged. 11. The prosecution examined P.W. 4 Bhavanishankar Laljibhai at Exh. 12 to prove discovery panchnama Exh. 13. The witness has not identified the accused. Discovery panchnama Exh. 13 indicates that the weapon was allegedly discovered at the instance of the appellant from river bank near the Ellis bridge. Therefore, alleged recovery of weapon was made from a place where public had free access and hence the learned trial Judge committed error in relying upon discovery panchnama Exh. 13 to connect the appellant with the offence. 12. The prosecution has examined P.W. 12 Dr. Ravindra Shrikrishna Bhonse at Exh. 33 who performed postmortem of dead body of Kishanbhai. Postmortem Report Exh. 34 indicates the external injury found on the dead body of deceased. It also indicates that the cause of death was shock and haemorrhage as a result of the injuries sustained by the deceased. Therefore, though it is proved that death was homicidal, there is no evidence to indicate that fatal injury was caused by the appellant. Therefore, the learned trial Judge committed error in relying upon discovery panchnama Exh.13 to connect the appellant with the offence. Therefore, the impugned judgment and order is required to be set aside. 13. In the result, the appeal succeeds and CR.A/55720/2000 6/6 JUDGMENT judgment and order dated 29th March, 2000 of conviction and sentence passed by the learned Addl. Sessions Judge, Ahmedabad City, Court No.4, Ahmedabad in Sessions Case No. 231 of 1999 for the offence punishable u/s 302 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. Fine, if paid, be returned to the appellant.The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/