STATE OF GUJARAT Vs. GULABSING H THAKOR

JUDGEMENT

(1.) THE present appeal is filed by the State of Gujarat under Section 378 of the Code of Criminal Procedure against judgment and order of acquittal passed by the learned Additional Sessions Judge, Palanpur-Banaskantha in Sessions Case No.108 of 1987. THE learned Additional Sessions Judge was pleased to record acquittal of the offence under Section 302 read with Section 34 of the Indian Penal Code.

(2.) THE case of the prosecution is set out in para-1 of the judgment, which is to the effect that, the accused of this caseGulabsinh Himmatsinh, resident of Chauhangadh, Tal. Palanpur, presented himself at Amirgadh Police Station and made a declaration on 12.08.1987, which is recorded as FIR of this case. According to the facts reported by accusedGulabsinh Himmatsinh, both the accused, on account of their niece-Rajuba having illicit relations with deceasedDhudsinh Bhursinh, having found Dhudsinh at a distance from Sarotra Railway Station, caught hold of him and took him towards village Chauhangadh and at a distance of about two fields from the village, they pushed deceased-Dhudsinh on the ground and accused-Ranjitsinh Himmatsinh caught hold of him and accused-Gulabsinh gave knife blow in the stomach and thereafter cut his throat, whereby Dhudsinh died. THEreafter, both the accused went to village and in the neighbourhood of their house, they caught hold of their niece-Rajuba and killed her by throttling. On this declaration being made, police recorded FIR and registered an offence against both the accused. THE case was investigated and inquest panchnama was drawn on the dead body of deceased-Dhudsinh and a panchnama of scene of occurrence was also drawn. THE dead body was sent for postmortem to the Doctor. THE statements of the witnesses were recorded and necessary panchnama was drawn. THE muddamal articles were sent to FSL for investigation. On receipt of the postmortem note of the deceased and the FSL report, charge sheet was filed against both the accused in the Court of learned Chief Judicial Magistrate, Palanpur on 12.11.1987. As the case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate committed Criminal Case No.10481 of 1987 to the Court of Sessions under Section 209 of the Code of Criminal Procedure on 03.12.1987. 2.1 After the case was committed, on perusal of papers, the accused were charge sheeted. As there were two offences, the Court passed an order on 08.04.1991 to separate both the offences and separate charge sheets were filed for the offences on 22.04.1991. THE charge-Exh.10 was framed on 08.05.1991. THE accused denied to have committed any offence, opted for trial. 2.3 THE prosecution to establish the guilt of the accused examined the following witnesses:-

(3.) LEARNED Senior Advocate for the accused submitted that this is a case of, 'no evidence'. LEARNED Senior Advocate for the accused submitted that it is a settled law that any statement made before the police by a person who is an accused in the same case cannot be relied upon by the Court, unless such facts are proved by independent evidence. LEARNED Senior Advocate for the accused submitted that if at all the accused had given any such narration, then they would have stood by that even before the Court, but then the fact is that they have denied to have given any such statement and denied to have committed any offence. The learned Senior Advocate submitted that it was the duty of the prosecution to establish the guilt of the accused by leading cogent and convincing evidence. 5.1 LEARNED Senior Advocate for the accused submitted that evidence of Bhursinh Bharatsinh-father of the deceased-P.W. No.3-Exh.18 is throughly unreliable. Not only that, reading evidence of other witnesses also it does not inspire any confidence. He submitted that the conduct of the witnesses is found to be totally unnatural. He submitted that P.W. No.3-Bhursinh Bharatsinh-Exh.18 deposed that, 'on the day of the incident, he decided to go in search of his son who was reported to have gone away from his house 3 to 4 days back and while he was going in search of his son, he was accompanied by one Mulsinh Anopsinh-P.W. No.4-Exh.19, who is aged one, suffering from 'Asthma', weak physique, not able to walk properly'. It is the case of P.W. No.3-Exh.18-father of the deceased that, 'when they reached outside village Chauhangadh, they heard cry of the deceased (son of the deponent) and when they show in that direction, they found that his son was lying on the ground and accused No.2-Ranjitsinh was sitting on his chest and accused No.1-Gulabsinh was cutting his throat. LEARNED Senior Advocate for the accused submitted that the manner in which the incident is narrated, is suggestive of the fact that the incident is not witnessed by the deponent. Besides, the deponent has stated that, 'when they tried to go near the accused, accused No.1 raise his hand with knife and stated that if you come near, you will also meet the same fate and thereby they were frightened and ran back to their home'. What is important to note is that this witness states that, 'he does not know whether Mulsinh reached his home or not'. After reaching home, it is the case of the witness that, 'he narrated the incident to his wife and the wife of his son. On hearing that, they started running to the place of incident and when they reached there, they found their son lying dead and the two accused were running in the direction of Iqbalgadh. 5.2 LEARNED Senior Advocate for the accused could successfully bring out improvements and contradictions with help of reading deposition of the Investigating Officer-P.W. No.8-Exh.28. LEARNED Senior Advocate for the accused submitted that the Investigating Officer has deposed that, 'he was the one who recorded declaration made by the two accused at Amirgadh Police Station and after having came to know about the incident, he came to village Chauhangadh where the first thing he did was, he drew inquest panchnama of the dead body of the deceased'. The Investigating Officer has deposed in clear terms that, 'dead body was identified by Bhursinh, but at that time, Bhursinh did not disclose to the Investigating Officer that he knows about the incident and he has seen the accused committing offence'. Not only that, after the Inquest Panchnama, the Investigating Officer drew 'panchnama of scene of occurrence' and that scene of occurrence was also pointed out by the father of the deceased-Bhursinh, but even at that time, Bhursinh did not point out that he has witnessed the incident of his son being assaulted by the accused. 5.3 LEARNED Senior Advocate for the accused submitted that there is one another witness-Mohanji Bhikhsinh-P.W. No.5-Exh.20, who is later on declared to be hostile. His statement was recorded by the Investigating Officer on the day of the incident. The Investigating Officer has deposed that, 'this Mohanji Bhikhsinh volunteered himself saying that he has witnessed the incident'. The Investigating Officer has deposed that, 'after completing the work recording statements of the concerned persons, when he was leaving the 'chora' (a public place), this Mohanji Bhikhsinh came forward and claimed to have witnessed the incident and therefore, his statement was recorded'. LEARNED Senior Advocate for the accused submitted that though it is the case of Mohanji Bhikhsinh that he had seen Bhursinh Bharatsinh and Mulsinh Anopsinh having reached the scene of incident, neither Bhursinh Bharatsinh nor Mulsinh Anopsinh makes any mention about Mohanji Bhikhsinh being present at the scene of incident. 5.4 LEARNED Senior Advocate for the accused submitted that this is one case wherein the prosecution has utterly failed in bringing out any evidence to connect the accused with the offence. LEARNED Senior Advocate for the accused submitted that in absence of any evidence on record, the learned Additional Sessions Judge had no other alternative then to record acquittal and once acquittal is recorded, it is a settled position of law that even if two views are possible, the view which is favourable to the accused, is to be opted and acquittal is not to be reversed.