CR.A/52620/2001 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 526 of 2001 With CRIMINAL REVISION APPLICATION No. 284 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 ? 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 ? ====================================== PRAJAPATI RAJESHKUMAR AMRUTLAL & ANOTHER Versus STATE OF GUJARAT ====================================== Appearance : MR PRAKASH K JANI for the Appellants Ms Hansa Punani, Additional Public Prosecutor for the respondent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA CR.A/52620/2001 2/3 JUDGMENT Date : 12/12/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the appellants – original accused Nos.2 and 3 challenging judgment and order dated 4th June 2001 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.138 of 2000. Heard the learned counsel for the parties. This is a case of circumstantial evidence. There is no direct evidence. The circumstances which have been put forward are so weak that they do not make out a chain of circumstances. So much so, the most important circumstance of last seen has not been believed by the trial Court. With the disbelieving of the evidence on the question of last seen, the prosecution has been hit with the last nail in the coffin. The other circumstances are only recovery of alleged weapon, which could have otherwise been used only for corroborative purposes. There is no circumstance which falls in the category of incriminating circumstance. There has been no incriminating circumstance except that accused No.1 and 2 had travelled to Mount Abu, there they stayed at a guest house. Thereafter, they went to Mumbai. There they met a travelling company since they did not have money to come back to Unjha. All those circumstances are innocuous circumstances. There is no stain of incrimination in these circumstances. It is important to note that original accused No.1 has been acquitted by the trail Court, against which State has filed no appeal. It is also important to note that recovery of weapon can only be used for corroboration purposes. Otherwise also the prosecution case is not CR.A/52620/2001 3/3 JUDGMENT believable since the weapon is recovered from open place and recovery from open place which is accessible to all and sundry is hardly given any consideration. In these circumstances, without there being any incriminating evidence against accused persons put forward by the prosecution side, the conviction cannot be sustained. Hence, the circumstances as indicated by the prosecution against the accused deserve to be discarded and benefit of doubt is required to be given to the accused persons. In the result, this Court feels that the prosecution has failed to bring out the charges against the accused persons. The charges against the appellants are unsubstantiated. The conviction and sentence recorded by the learned Additional Sessions Judge, Mehsana dated 4th June 2001 qua appellants – original accused Nos.2 and 3 is quashed and set aside. The appellants – original accused Nos.2 and 3 are ordered to be set at liberty forthwith if not required in any other case. Writ to be sent to the jail concerned. In view of the order passed in the main appeal, Criminal Revision Application No.284 of 2001 filed by the original complainant against the acquittal of original accused No.1 by the trial Court does not survive and therefore the same is dismissed. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) *mohd