THE STATE OF GUJARAT Vs. VAJUBHAI SHAMBHUBHAI GONDALIA

JUDGEMENT

(1.) Being aggrieved and dissatisfied by the judgment dated 1st October 2005 delivered in Sessions Case No. 64 of 2004 by the learned Presiding Officer, Fast Track Court, Gondal, the State of Gujarat has filed this Appeal under Section 378 [1] & [3] of the Code of Criminal Procedure against the order of acquittal of the respondents -accused.

(2.) The facts giving rise to the present appeal, in a nutshell are as under : - Complainant -Chhaganbhai, a resident of village Sultanpur was informed at 7:00 am on 4th April 2004 by his nephew -Anil that his father Bavchandbhai [ie., the real brother of the complainant] was killed by someone and his dead body was lying in the field. The complainant and one Kanubhai Arjanbhai alongwith Anil went to the field of the deceased and found the dead body of Shri Bavchandbhai. They noticed injuries on the dead body and Anil informed the complainant that the deceased had left the home yesterday, after taking dinner at about 10:00 pm. According to the complainant, some unknown person has killed his brother by causing several injuries to him, and therefore, a complaint came to be filed for the alleged offence under sections 302, 325, 201 of the Indian Penal Code ["IPC" for brevity] read with sections 37 [1] and 135 of the Bombay Police Act on 4th April 2004 before the Gondal Taluka Police Station. The police investigated the matter and a chargesheet was laid before the learned JMFC, Gondal and numbered it as Criminal Case No. 1018 of 2004. The learned JMFC, Gondal thereafter committed the case under Section 209 of the Code of Criminal Procedure ["CrPC" for short] to the Sessions Court at Rajkot where it was numbered as Sessions Case No. 64 of 2004. The trial was conducted by the learned Presiding Officer, Fast Track Court, Gondal. At trial, the respondents pleaded not guilty and claimed to be tried. The learned Fast Track Judge, Gondal after duly appreciating the prosecution evidence brought on the record, acquitted the accused, giving rise to filing of the present Appeal by the State of Gujarat. Heard learned APP Mr. Rutvij Oza for the appellant - State of Gujarat. It is urged by the learned APP that the order of acquittal passed by the learned Fast Track Judge, Gondal in Sessions Case No. 64 of 2004 dated 1st October 2005 is bad in law and against the settled principles of evidence available on the record of the case. That, the oral evidence as well as documentary evidence produced by the prosecution were not properly appreciated by the learned Presiding Officer. In fact, the prosecution has proved its case beyond reasonable doubt and that the learned Presiding Officer has given much importance to minor contradictions and omissions which has resulted into miscarriage of justice. That, the learned trial Judge ought to have held that the prosecution has proved its case by chain of circumstantial evidence. He urged that though motive to commit the crime was established by the prosecution by producing the evidence of one Ramaben Bhavchandbhai and her son Anil Bhavchandbhai, as well as evidence of two daughters - Reenaben and Vilasben, the trial Judge has erred in disbelieving the prosecution case with regard to motive only on the ground that the witnesses have not deposed this fact earlier in point of time when their statement came to be recorded on 4th April 2004 and it was only on 8th April 2004 in further statement that this fact was stated. According to the learned APP, the learned Presiding Officer ought to have appreciated the fact that the prosecution has proved by evidence of witness Hareshbhai Prabhudas [PW -13 : Exh. 36] that the accused was seen on the night of incident going towards his field. He urged that the learned trial Judge ought to have appreciated that the prosecution has proved that the accused was coming towards village from field on the early morning by the evidence of one Chandulal Mohanlal [PW -14 : Exh. 37]. That, the FSL report clearly indicates that the accused clothes were blood stained and it belonged to same blood group as that of the deceased, and therefore, the order of acquittal is erroneous, improper and illegal. Ultimately, learned APP requested the Court to quash and set aside the impugned judgment and order of acquittal dated 1st October 2005 passed by the learned Fast Track Court, Gondal in Sessions Case No. 64 of 2004. We have perused the documentary and oral evidence on record and gone through the submissions of both ­ the learned APP appearing for appellant -State as well as learned advocate appearing for the respondent -accused. Before discussing the issue involved in this Criminal Appeal preferred by the State, this Court would like to refer to the legal position as enunciated by the Apex Court in case of Shivaji Sahabrao Bobade v. State of Maharashtra [1973] 2 SCC 793, wherein, it is held that,

(3.) In another decision rendered in case of Mahadeo Laxman Sarane v. State of Maharashtra, [2007] 12 SCC 705, the Apex Court held and observed that,