Criminal Appeal No. 932 of 2006 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 22/03/2012 ORAL JUDGMENT CR.A/932/2006 JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE)

These two appeals arise out of a judgement and order passed by learned Additional Sessions Judge, Dahod, in Sessions Case No. 149 of 2005, where these two appellants were the accused persons. They were charged to have committed murder of Ramilaben, wife of Chhatrasinh Raisinh Bhura, on 09.10.2005 around 11.00 - 1200 noon for the purpose of robbing silver ornaments that the deceased was wearing. They are also charged to have committed an offence punishable under Section 135 Bombay Police Act, 1951 (for short `the Act') by remaining in possession of weapon, despite a memorandum prohibiting the same.

The case of the prosecution is that on 09.10.2005 at about 11.00 a.m., Ramilaben, wife of Chhatrasinh Raisinh Bhura, had gone to the bank of river Khari near village Anop for washing clothes. She was wearing silver anklets weighing about 100 gms. The two accused-appellants, with a view to rob of her all these ornaments, committed her murder, and thereby, they committed offence punishable under Section 394 and 302 of the Indian Penal Code. They also committed breach of a notification prohibiting use of weapon, and thereby committed offence punishable under Section 135 of the Act.

The incident was not seen by anyone. The case appears to be of circumstantial evidence. As per the prosecution case, the deceased had gone to the bank of Khari river along with her niece Sajanben, who was a minor of about ten years of age. At that time, the accused persons were around, and then they committed the offence. Sajanben was examined at CR.A/932/2006 JUDGMENT Exh.33, and she deposes about her having gone with the deceased on the river bank for the purpose, but then, she said that she left the place. She said that she was called in the Mamlatdar office in presence of two persons, and those two persons are the accused. She also stated that she had seen two persons sitting under a babul tree.

Barring Sajanben, there is no other witness of relevance. Of course, the prosecution has tried to prove the case against the accused by indicating that accused no.1 had concealed the ornaments, namely, the anklet and a sickle in the house of original accused no.2, which has been discovered by accused no.1.

In this context, witness Mansingbhai Nanubhai Damor is examined at Exh.20. He said that he was a party to Panchnama (Exh.21). He was also called for another Panchnama. He says that police was present. He then says that none from the persons present in the court was present at the time of Panchnama. Therefore, discovery or recovery from any of the accused is ruled out. The moment discovery or recovery is ruled out, there is no nexus worth any between the appellant and the offence. The only evidence against accused no.2 is that the ornament and sickle were recovered from his house, but that recovery is not proved against him. Similarly, the evidence against accused no.1 is that he, possibly after using the weapon in commission of the crime, concealed the same in the house of accused no.2, and has discovered the same again.

For the foregoing reasons, in absence of any evidence, the conviction recorded by the trial court cannot be sustained and deserves to be set CR.A/932/2006 JUDGMENT aside. Consequently, both the appeals are allowed. The judgement and order of learned Additional Sessions Judge, Dahod, in Sessions Case No. 149 of 2005 is set aside. The accused appellants are acquitted of the offences with which they were charged.

We are informed that appellant-original accused no.1 Malabhai Bharatbhai Bhuriya has expired, and the other accused Maheshbhai @ Rajubhai Mangabhai is in prison. Therefore, accused Maheshbhai @ Rajubhai Mangabhai be set at liberty forthwith, if not required in any other case. Fine, if any paid, be refunded to him. (A.L. DAVE, J.) (N.V. ANJARIA, J.) (SN DEVU PPS)