CR.A/29620/2001 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 296 of 2001 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. ===================================================== MANSUKHBHAI UKKADABHAI NAYKA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ===================================================== Appearance : MS BANNA S DUTTA for Appellant(s) : 1, MS H.B. PUNANI APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/29620/2001 2/6 JUDGMENT HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 18/11/2008 ORAL 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 30-3--2001 rendered by learned Addl. Sessions Judge, Vadodara in Sessions Case No. 259 of 2000 convicting him for offence punishable u/ss 302 and 114 of the I.P. Code and u/s 135 of the Bombay Police Act sentencing him to undergo sentence of life imprisonment and to pay fine of Rs.500, in default thereof, to undergo simple imprisonment for six months and to pay fine of Rs.100/- in default thereof to undergo 10 days' simple imprisonment for the offence punishable u/s 135 of the Bombay Police Act. 2. According to the prosecution case, on 4-1-2000 at about 7-00 in the evening, deceased Naginbhai told his wife Shaniben that he would go to Sardarpura village if he did not get bullock for his cart to take Savitaben to hospital as she was sick and left the house but he did not return home. As Naginbhai did not return, his wife Shaniben in the morning of 5-1-2000 asked her son Jayeshbhai to go to Sardarpura CR.A/29620/2001 3/6 JUDGMENT to inquire about Naginbhai. Therefore, Jayeshbhai left at about 9-00 in the morning, but returned within five minutes and informed Shaniben that Naginbhai was lying profusely bleeding in ravine on the road going to Sardarpura. Therefore, Shaniben and other persons went there and found that Naginbhai was lying dead. Therefore, Shaniben lodged first information report against the appellant and one Ambubhai Ukadbhai. 3. On the basis of First Information Report offence was registered and investigation was started. At the end of investigation charge sheet came to be filed against the accused. As the offence was triable by Sessions Court, the case was committed to the Sessions Court, Vadodara and it was registered as Sessions Case No. 259 of 2000. Learned Additional Sessions Judge, Vadodara framed charge Exh. 4 for the offence punishable u/ss 302, 114 of the I.P. Code and u/s 135 of the Bombay Police Act against accused. The accused denied having committed the offence and claimed to be tried. 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, 1973 stated that false case is filed against them. CR.A/29620/2001 4/6 JUDGMENT 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 prosecution has proved the charge against the accused beyond reasonable doubt and convicted and sentenced them to undergo sentence as mentioned hereinabove. Being aggrieved by the said decision, the appellant has filed Appeal. The other convict - Ambubhai Ukadbhai Nayaka has also filed Criminal Appeal No.297 of 2001. As only this appeal is notified for final hearing we could not take up other appeal. It was also reported that the appellant in other appeal is absconding. Hence, we are not inclined to call for the other appeal. 6. We have heard learned advocate Ms. Banna Datta 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 the appellant is implicated only on suspicion. There is no direct evidence to connect him in the offence. Therefore, the impugned judgment is required to be set aside and the appellant is required to be acquitted of the charge levelled against him. 8. Learned A.P.P. Ms. Punani submitted that the CR.A/29620/2001 5/6 JUDGMENT prosecution has adduced sufficient evidence to connect the accused with the offence and therefore the learned trial Judge was justified in convicting the appellant and no interference is warranted in the impugned judgment. 9. It is not in dispute that there is no direct evidence to connect the accused with the offence and the entire case depends upon circumstantial evidence. 10. In the First Information Report Exh. 29, it was alleged that before about four days of incident, there was quarrel between the accused and the deceased with regard to money borrowed by the deceased from accused Ambubhai and as the accused were head strong persons, they have killed Naginbhai. 11. The prosecution has examined P.W. 1 Shaniben Naginbhai at Exh. 10. In her deposition she has deposed about the quarrel between the accused and the deceased but it appears that First Information Report was lodged after consultation with other persons. Except the deposition of this witness, there is no other evidence to indicate that there was quarrel as alleged by the first informant. It is true that medical evidence indicates that death was homicidal but there is no cogent and convincing evidence to connect the accused with the offence. Therefore, the prosecution case becomes doubtful. CR.A/29620/2001 6/6 JUDGMENT There is no other reliable evidence to indicate that the appellant was involved in the offence. Hence, the learned trial Judge committed error in convicting the appellant. Therefore, the present appeal is required to be allowed. 12. In the result, the appeal succeeds and judgment and order of conviction and sentence dated 30-3-2001 passed by the learned Addl. Sessions Judge, Vadodara in Sessions Case No. 259 of 2000 for the offence punishable u/s 302 and 114 of the I.P. Code and u/s 135 of the Bombay Police Act is set aside and the appellant is acquitted of the offence charged against him and he is ordered to be 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/