MOHAMMAD SULEMAN KOTHIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellant original accused challenging judgment and order dated 1st January 2002 passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No. 123 of 2000 by which the appellant has been convicted under Section 302 of the Indian Penal Code.

(2.) HEARD the learned counsel for the parties. In this case the prosecution started with the information to the police on the basis of a person who has not been examined by the prosecution and in that information the accused was not named. The police arrived at the scene of occurrence and drawn panchnama. In the panchnama the name of the accused is not mentioned. The prosecution further proceeds wherein two witnesses are stated to have seen the accused persons going from the scene of occurrence. That is the best evidence of the prosecution. Apart from this, the accused was seen leaving from the scene of occurrence along with weapon. No other evidence is brought on record. The only ancillary evidence, which has come on record is that the weapon was recovered from the person of the accused and it was stained with the Blood Group "b", which is the blood group of the accused and deceased as well. The entire evidence is of circumstantial evidence. Though the accused was apprehended along with the weapon of offence, the blood group of the accused being that of the deceased the possibility of the weapon being stained with the blood of accused cannot be ruled out. Further, there was an injury on the palm of the accused. That being the position, we are left with the other circumstance of accused being seen leaving the scene of occurrence. The person who informed the police has not been examined by the prosecution and the panchnama does not name the accused persons. The names of the accused persons have been disclosed at a very late stage. The inquest was drawn at 14. 30 hour and the FIR was recorded at 17. 00 hours and this time gap also suggests that there is enough opportunity to got up the name of the accused. Their conduct and evidence also becomes suspicious in the background that they were not pro-active to inform either the police or son of the deceased though they claim that they were friendly.

(3.) IN that background there are many loopholes in the prosecution case and the conviction as recorded is not sustainable.