STATE OF GUJARAT Vs. VAHAB MOHMEDBHAI SEPAI

JUDGEMENT

(1.) The acquittal of the respondent of the offence punishable under section 302 of the Indian Penal Code recorded by the learned Additional Sessions Judge, Bhavnagar vide judgment and order dated 9/04/1992, in Sessions Case No. 56/90, is subject matter of challenge in the present appeal,which is filed by the State of Gujarat under section 378 of the Code of Criminal Procedure, 1973.

(2.) According to the prosecution, the respondent was lodged in Sub Jail, Palitana on 3/01/1990 in connection with C.R.No. I. 1/90 registered with Gariyadhar Police Station; whereas deceased Dhirubhai Gabharubhai was also lodged in the said Sub-Jail as an under-trial prisoner in connection with Criminal Case No. 144/87 and the respondent on 3/01/1990 between 6.00 to 6.30 P.M. with an intention to kill deceased Dhirubhai Gabharubhai caused injuries to him with pickaxe and after throwing blanket as well as carpet on him, set him ablaze and thus, caused his death. The prosecution has alleged that Keshavji Meghji, who was warden of the Sub-Jail at the relevant time, had gone to bring tiffins for the under-trial prisoners and when he returned to Sub-Jail, he noticed that the deceased was lying on the ground and blanket was burning. According to the prosecution, on inquiry being made by the Warden, the respondent confessed that he had killed the deceased, as the deceased had refused to part with match box which the respondent wanted to light a bidi. The prosecution has claimed that thereafter necessary report was made by the warden to the jailor, who visited the Sub-Jail and after returning to his Office, the jailor lodged F.I.R. with the police. On complaint being filed, it was investigated by Mr.Ravindra Dhanjibhai Mitra, who was Senior Police Sub Inspector of Palitana town. The investigating officer recorded statements of witnesses who were found to be conversant with the facts of the case and sent dead body for autopsy. The autopsy on dead body was performed by Dr. Babulal Becharbhai Aghara. Incriminating articles seized during investigation were sent to Forensic Science Laboratory for analysis. At the conclusion of investigation, the respondent was chargesheeted for the offence punishable under section 302 of the Indian Penal Code. As the said offence is exclusively triable by Court of Sessions, case was committed to Sessions Court, Bhavnagar, where it was numbered as Sessions Case No. 56/90. The learned Additional Sessions Judge, Bhavnagar to whom the case was made over for trial, framed charge against the respondent at Exh.3 for the offence punishable under section 302 of the Indian Penal Code. The charge was read over and explained to the respondent, who pleaded not guilty to the charge and claimed to be tried. The prosecution, therefore, examined; (1) Bhurjibhai Shakaraji Baranda, PW 1, Exh.13, (2) Keshavji Meghji, PW 2, Exh.21, (3) Dr. Babulal Becharbhai Aghara, PW.3, Exh.25, (4) Baghabhai Keshavbhai, PW 4 Exh.27, (5) Shantishanker Bhaishanker, PW 5, Exh.28, (6) Bharatkumar Chandulal Modi, PW 6, Exh.29, (7) Bachubhai Kanjibhai, PW.7, Exh.32, (8) Amrutbhai Tidavala, PW.8, Exh.36, and (9) Ravindra Dhanjibhai Mitra, PW 9, Exh.37 to prove its case against the respondent. The prosecution also produced documentary evidenced, such as, inquest panchnama at Exh.7, letter dated 3.1.1990 addressed by Keshavji Meghji to the jailor at Exh.14, First Information Report lodged by jailor at Exh.15, necessary entries from jail register at Exhs. 16, 18, 20 & 22, postmortem reports of the deceased at Exh.26 etc., in support of its case against the respondent. After recording of evidence of prosecution witnesses was over, the learned Judge questioned the respondent generally on the case and recorded his statement under section 313 of the Code of Criminal Procedure, 1973.

(3.) In his statement, the respondent denied the case of prosecution, but he did not lead any evidence in his defence. On appreciation of evidence, the learned Judge observed that no direct evidence was led by the prosecution to establish guilt of the respondent and the case solely rested on circumstantial evidence. The learned Judge held that as warden Keshavji Meghji could not reproduce the so-called confession verbatim as made by the respondent, it was not reliable piece of evidence. The learned Judge deduced that the respondent himself had a bundle of bidies as well as match box and, therefore, it was not probable that he would kill the respondent only because the respondent did not give him match box. The learned Judge noted that the map of place of incident was not produced by the prosecution and the record indicated that earlier prisoner Pancha Popat had jumped the wall of the Sub-Jail and escaped and, therefore, possibility of a person having entered the Sub-Jail by jumping the wall and leaving the Sub-Jail after killing Dhirubhai Gabharubhai was not ruled out. The learned Judge noticed that before the incident, the respondent was not knowing the deceased and had no enmity worth the name with the deceased, as a result of which motive was not proved and benefit of this circumstance should go to the respondent. In the ultimate decision, the learned Judge by the impugned judgment acquitted the respondent by holding that the cumulative effect of the circumstances was not such as to negative the innocence of the respondent and to bring the offence home to prove his guilt beyond reasonable doubt, giving rise to present appeal.