CR.A/568/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 568 of 2004 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA =============================================== 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 ? =============================================== BABUBHAI MELABHAI MAJIRANA. Versus STATE OF GUJARAT. =============================================== Appearance : Mr. US BRAHMBHATT for the Appellant. Mr. UR BHATT, APP, for the Respondent. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 14/10/2008 ORAL JUDGMENT : ( Per: A. L. Dave, J. ) CR.A/568/2004 2/7 JUDGMENT 1. The present appeal arises out of a judgment and order rendered by Sixth Fast Track Court, Palanpur, in Sessions Case No.57 of 2003, convicting the appellant for the offence punishable under Section 304 Part-I of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for a period of 30 days. 2. The facts of the case, in brief, are that the appellant and his wife resided at Bhilwas in village Aakedi of Palanpur taluka. The appellant, allegedly, assaulted his wife in the front courtyard of his house at about 20.00 hours on 11.1.2003 and committed her murder. The appellant assaulted his wife with a wooden pestle. It is also alleged that the appellant was causing harassment to the deceased for dowry and, therefore, the quarrel. An F. I. R. came to be registered against the appellant before Palanpur Taluka Police Station in respect of the incident by one Shankerji Sendhaji, father of the deceased. On the basis of that F. I. R., investigation was made and charge sheet was filed in the Court of learned Judicial Magistrate, First Class, Palanpur, for offences punishable under Sections 302 and 498-A of the I.P.C. and Section 135 of the Bombay Police Act. The learned Magistrate, in turn, committed the case to the Court of Sessions and Sessions Case No.57 of 2003 came to be registered. The charge was framed against the accused-appellant CR.A/568/2004 3/7 JUDGMENT for the said offences at Exhibit 6, to which he pleaded not guilty and claimed to be tried. Upon the prosecution leading the evidence, the learned Judge recorded conviction of the accused appellant under Section 304 Part-I of the I.P.C. and recorded acquittal for offences punishable under Section 498-A of the I.P.C. and Section 135 of the Bombay Police Act and sentenced him to imprisonment as recorded in the earlier part of this judgment. Hence, this appeal. 3. The prosecution has examined Pratap Melabhai Majirana at Exibit 30. According to the prosecution case, while the appellant was beating his deceased wife-Manjuben, Pratap tried to intervene and in the course of the transaction, he also suffered injury on left bicep. He was taken to doctor for treatment and that doctor (Dr. Kumavat) is examined at Exhibit 12 and the Medical Certificate is at Exhibit 14. However, it is noticed that Pratap has not supported the prosecution case. 4. Barring the above direct evidence, there is no direct evidence so far as the incident is concerned good enough to connect the appellant with the offence. 5. The first informant-Shankerji Sendhaji, on whose information the offence was registered and investigation started, CR.A/568/2004 4/7 JUDGMENT has been examined at Exhibit 26. According to him, Manjuben was initially married to the elder bother of the accused about 20 years back. She became widow around eight years back and, as per custom, she married the accused-appellant. He says that the deceased used to come to his place often, but made no complaints nor did she make any demand. According to him, he was in his field when he was informed of the death of the deceased and he, therefore, went to Civil Hospital, Palanpur and found his daughter to have suffered injuries on head, hands and other parts of the body. Thus, he does not support the prosecution case or his own case as emerging from his F.I.R. 6. The other pieces of evidence are in the form of post- mortem report, the cause of death certificate, depositions of the doctor and police officers, Panch witnesses, etc. Out of these pieces of evidence, the only piece of evidence that can be used against the appellant is the recovery Panchnama. 7. The medical evidence indicates that the deceased had, in all, eighteen external injuries, which could be caused by hard and blunt substance. Out of the eighteen injuries, sixteen injuries were superficial and two injuries were found on head. The cause of death was attributed to the shock resulting from the injuries received on the body. CR.A/568/2004 5/7 JUDGMENT 8. Thus, it is clear from reading of the entire evidence and the judgment that there is no direct evidence worth a name to connect the appellant with the offence. The only evidence is in the form of recovery of the wooden pestle and a stick in presence of Panch witnesses. But recovery by itself cannot be considered as a proof of involvement of the appellant in the crime. Even according to the Trial Court, the prosecution has proved following aspects:- (1) That the deceased met with an unnatural death around 8.20 hours on 11.1.2003; (2) That the death of the deceased was not an accidental death as per the defence taken by the accused-appellant, but was a homicidal death; (3) That the muddamal pestle was recovered by drawing Panchnama (Exhibit 47); (4) That the homicidal death of deceased-Manjuben was caused by injuries which could be caused by the muddamal pieces of wooden pestle and stick; CR.A/568/2004 6/7 JUDGMENT (5) That there was evidence to prove that the clothes of the deceased had blood stains of group “B”, which is found to be of the appellant; and (6) That the appellant-accused was the last person to see the deceased alive and the first person to see her dead body. 9. The Trial Court has recorded conviction on the basis of the above circumstances coupled with the fact that the defence of the accused was found to be false. 10. We may record that recovery of pestle and stick cannot be a circumstance to establish nexus between the accused and the crime, when there is no direct evidence. Similarly, find of human blood of group “B” on clothes of the deceased and absence of bleeding injury on her person coupled with the fact that the blood group of the accused is “B” cannot be a factor to prove involvement of the appellant-accused in the crime for the reason that no injury of any nature was found on his person when he was arrested on 13th January, 2003 between 12.30 noon and 1.00 P.M. by drawing Panchnama Exhibit 34. In this set of circumstances, we are of the considered opinion that the chain of circumstances is not completely established to record conviction of the accused- appellant. The Trial Court ran into an error in recording conviction CR.A/568/2004 7/7 JUDGMENT on such scanty evidence. Falsity of defence cannot be a ground for recording conviction in absence of any other cogent material. The conviction, therefore, cannot be sustained and the appeal deserves to be allowed. 11. In the result, the appeal is allowed. The judgment and order of conviction and sentence recorded by the Trial Court, which is impugned in the appeal, is hereby set aside. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt