BAVCHANDBHAI BHIKHABHAI CHUDASMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both the above applications are filed by the applicants under Section 439 of the Code of Criminal Procedure. Against both the applicants C.R.No.I-2/2007 came to be registered at Talaja Police Station, Dist:Bhavnagar on 2.1.2007 for the alleged offence under Section 302 of Indian Penal Code read with Section 120-B, 201 and 114 of Indian Penal Code and also under Section 135 of Bombay Police Act.

(2.) As per the case of prosecution and as it reveals from the charge sheet that the deceased Batukbhai Balubhai Dhameliya of village Rajpara, Taluka:Talaja was found dead at village Juni Devli for which entry in Talaja Police Station Diary No.9/2007 was registered on 1.1.2007 and upon identification by the complainant uncle of the deceased inquest was held on 1.1.2007 and F.I.R. came to be registered on 2.1.2007 on 00:30 hours. No names of the present applicants were found in the F.I.R. It is stated that deceased was killed by some one. Thereafter further investigation was held and on the basis of the statement of some of the witnesses and co-accused, the applicants are arrested.

(3.) Shri K.B.Pujara, learned advocate appearing in Criminal Misc. Application No.7368/2007 and Shri H.N.Jhala, learned advocate appearing in Criminal Misc. Application No.4303/2007 jointly submitted that case against the present applicants is based on circumstantial evidence, since no eye witness is found. Not only that but charge sheet is already filed and now statement of witnesses are available and mainly the witnesses Rameshbhai Labhshankar Jani, Ashokbhai Devjibhai Goyal, Himmatbhai Madhurbhai Jani, Ashmitaben daughter of Narberam Shivshankar Dhandhaliya do not implicate the applicants in the alleged commission of crime. Even the statement of Vilasben wife of Dharshibhai Vaghela in her statement dated 6.1.20007 stated that at night before the date of incident at about 8.00 O'Clock Batukbhai and two other persons came to her hut and demanded liquor and other two persons were standing along with motorcycle on road. She could not see them because of darkness. However later on she states in her statement dated 11.1.2007 making improvement that she saw Batukbhai and two other persons in moonlight and she could identify if they are shown to her. However later on, no identification parade was held. Besides, Ilaben one of the co-accused before whom one of the applicant had narrated commission of crime is also not trustworthy and there appears no other incriminating material to connect the present applicants with crime, even if case of the prosecution about certain blood stains found on the cloths of one of the applicants is believed.