STATE OF GUJARAT Vs. RAMANBHAI PUNJABHAI HARIJAN

JUDGEMENT

(1.) Challenge in the present appeal preferred under Section 378 of the Code of Criminal Procedure, 1973 (for short, the 'Code') by the State of Gujarat is the judgment dated 07.05.1993 passed by the learned Additional Sessions Judge, Godhra in Sessions Case No.129 of 1992 whereby, respondent - Mr.Ramanbhai Punjabhai Harijan came to be acquitted of the charges for the offence punishable under Section 302 of the Indian Penal Code (for short, 'I.P.C.') but, sentenced to suffer one and half years' S.I. and to pay fine of Rs.500/-, in default, further S.I. of three months for the offence punishable under Section 498(A) of I.P.C.

(2.) The prosecution case as unfolded before the trial Court can be stated thus.

(3.) On completion of the usual investigation, the chargesheet was filed against the respondent-accused and charge for the offence punishable under Section 302 of I.P.C. was framed against the respondent-accused, who pleaded not guilty and claimed trial. The prosecution examined 10 witnesses and produced various documents, more particularly, two dying declarations vide Exh.23 and Exh.34. The learned Additional Sessions Judge having examined the prosecution evidence, found that the respondent-accused is not guilty of the offence punishable under Section 302 of I.P.C. and acquitted him. With pain, we may record here that the learned Additional Sessions Judge conducted trial not only in a careless manner but has not kept in mind settled principles of law while appreciating the evidence. The learned Additional Sessions Judge has not examined and discussed any of the dying declarations placed before him. Not only that, though the accused was not charged for the offence punishable under Section 498(A) of the I.P.C., yet he was imposed sentence of one and half years' imprisonment and as stated at bar that the respondent-accused did not challenge the said conviction and he suffered the same. Though it was not the case of the prosecution that deceased-Ms.Dwarikaben committed suicide, however, the learned Additional Sessions Judge, without having any evidence on record, ventured to record finding to the effect that it is because of torture of respondent-accused, deceased-Ms.Dwarikaben committed suicide. This finding is not only unwarranted but it is also unjustified at law and facts because it is not the case of the any of the parties to the proceedings and, in fact, the Court was required to examine whether deceased-Ms.Dwarikaben died due to accidental injuries or it is a case of homicidal death. It is well settled principle of criminal law that an accused can be convicted only when, on the evidence produced, the court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on possibilities nor it is permissible for the Court to speculate as to what had really happened. The accused can be convicted only when the prosecution succeeds in proving that the incident had taken place in the way as alleged by it. In other words, the prosecution must stand on its own legs and cannot take advantage of the weakness of the defence nor can be the Court of its own, make out a new case for the prosecution which is different from the case set up by both the parties. The learned trial Judge observed that it is because of torture of respondent-accused, deceased-Ms.Dwarikaben committed suicide. We disapprove such loose approach on the part of the learned trial Judge while dealing with such a serious case. Upon perusal of the impugned judgment, we have noticed that the learned trial Judge is very much influenced by the panchnama of the scene of offence Exh.12. We are not agree with the findings recorded by the learned trial Judge relying upon such panchnama Exh.12 for the simple reason that the offence in question is occurred on 17.03.1992 whereas, panchnama of the scene of offence is drawn on 21.03.1992 i.e. after 4 days of the incident. There is no iota of evidence that the scene of offence was under protection or it was preserved by the Investigating Agency and, therefore, no weightage can be attached to such piece of evidence to draw any sort of inferences.