STATE OF GUJARAT Vs. MAHENDRA @ MADHUBHAI RAMANBHAI

JUDGEMENT

(1.) The State has filed the present appeal against the judgment and order passed by the learned Additional Sessions Judge and 9th Fast Track Judge, Rajpipla dated 04.12.2004 in Sessions Case No.156 of 2000.

(2.) The facts of the case is that the complainant PSI of Vliya Police Station lodged the complaint at Valiya Camp while he was serving at outpost at Netral, he received information from PSO Valiya that two persons died as a result of blast at Village Chorambla and therefore complainant rushed out to the spot and found one jeep bearing Registration No.GJ-16-C-3306 lying in broken condition and two persons were lying dead near above vehicle. It was further the case of the prosecution that he also found some live cartages near the dead body and he also found the loaded revolver. Resultantly, initially he filed the complaint against two deceased persons who were carrying on explosive substances with them and died in the blast. The offence was registered and after recording the crime in the crime register, the investigation was entrusted to police officer. The said Investigating Officer has drawn necessary panchnamas, has recorded the statements of some of the witnesses and having found that sufficient material is available, charge sheet came to be submitted before the learned Judicial Magistrate First Class, Valiya.

(3.) Learned Additional Public Prosecutor Ms.Punani has vehemently contended that a serious error of exercise of jurisdiction is committed by learned Trial Judge in granting the benefit of doubt to the respondents accused. Ms.Punani has submitted that facts and circumstances which are established by the prosecution do not warrant any such benefit to be granted in favour of the applicant. In fact, while granting benefit of doubt, there must be some subjective satisfaction and the cogent reasons must appear. Here while granting such benefit, no reasons are assigned. On the contrary, the evidence which has led by the prosecution is completely misconstrued which is nothing but a glaring error on the part of the learned judge to pass judgment and order. Ms.Punani has further contended that several witnesses have been examined who have supported the case of the prosecution. The respondent accused No.1 is the person who drew the jeep car and respondent No.2 has identified the accused and deceased Natubhai and therefore there appears to be clinching evidence to connect the case of the prosecution with the respondent No.2. Ms.Punani has further submitted that the present case practically based upon circumstantial evidence which necessarily requires the chain to be completed. Ms.Punani by drawing attention to evidence on record has clearly contended that looking to the version and the testimony of witnesses, it is quite clear that entire chain of circumstance is completely emerging which is connecting the respondent accused with actual commission of crime and therefore simply because some of the witnesses are not supporting the case of the prosecution it cannot be said in any way that prosecution has not proved case beyond reasonable doubt. On the contrary while arriving at a conclusion, Ms.Punani has contended that no sufficient explanation in the form of reasons are assigned to justify the order of acquittal and therefore this is not a fit case in which any 'benefit of doubt' theory may be allowed to be pressed into service and therefore the very exercise of jurisdiction is from the beginning not germane and therefore order requires to be corrected by quashing and setting aside the same. Ms.Punani has further submitted that there are independent witnesses who have been pressed into service to prove the case against the accused whose testimony has not been appreciated in its true perspective. Ms.Punani has further drawn attention to the testimony of Prosecution Witness No.1 viz. Manharbhai Jesingbhai Vasava and contended that this witness has strongly supported the case of prosecution. On the contrary, the recovery which has been made from the spot has clearly suggested that contraband material was being transported. It has been pointed out that accused No.2 - respondent No.2 has identified the dead body of Natubhai and accused No.1 has run away from the spot who was said to have driven the jeep car and therefore these respondents are somewhere definitely connected with the main offence and therefore Ms.Punani submitted that simply because of some of witnesses are not supporting the case of the prosecution, it cannot be said that no offence worth the name is committed. On the contrary, the parameters for granting benefit of doubt are not reflected from the reasons which are assigned by the learned judge and therefore, it is desirable in the interest of justice to set aside the order and allow the appeal. Ms.Punani has further submitted that though an opportunity was given to the respondent accused while recording their further statement under Section 313 of Cr.P.C. they having no availed the opportunity of explaining their case is presumed to have been established by the prosecution. Looking to the inquest panchnama, looking to the panchnama of scene of offence and looking to the discovery panchnama, there are some visible connecting link establishing the case of prosecution and therefore role of present respondents accused could not have been overlooked especially when cogent material is adduced. Ms.Punani has submitted that on the contrary while granting benefit of doubt proper reasons ought to have been assigned which are missing and therefore it is desirable in the interest of justice not to allow such benefit of doubt in favour of the respondent. By contending this ultimately she has requested the Court to allow the appeal and inflict appropriate punishment upon the respondents accused.