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2020 Supreme(Guj) 282
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BELA M. TRIVEDI, RAJENDRA M. SAREEN, JJ.
State of Gujarat – Appellant
Versus
Jiva Lila Mer – Respondent
Criminal Appeal No. 325 of 1997
Decided On : 05-03-2020
Advocate Appeared:
For the Appellant : Ms. C.M. Shah.
For the Respondent: Ms. Urmila N. Desai.
.
Point of Law:
There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Headnote:
Bombay Police Act - section 135 - Indian Penal Code - Section 302, 201, 364, 365, 397, 34 - Criminal Procedure Code - Section 378 - Respondent-accused has been acquitted from charges leveled against him for offences punishable - Challenging judgment and order - Prosecution complainant who happened to be father of deceased had lodged a complaint on before city police station alleging that his son had left house for plying rickshaw on rent at about and had not returned home till late night on that day - He therefore had made search in the village but was not found - On along with others had again made search in city and other nearby places for whole day however said was not found nor his rickshaw was found -Held, Court having framed charge against both accused for alleged offences was hardly any cogent evidence adduced by prosecution to establish nexus of respondent-accused with alleged crime - As stated earlier said was not shown respondent accused in Court for his identification nor his name was given by complainant in complaint though according to had given name of complainant before was lodged by him very identity of respondent being not duly established it is risky to convict respondent-accused on sketchy evidence adduced by prosecution had miserable failed to establish chain of unerringly point to guilt of respondent accused - In that view of matter it could not be said that findings recorded by Sessions Court are perverse more particularly when main accused has already expired and there was hardly any evidence to connect present respondent accused with alleged crime - Court therefore does not find any substance in present appeal - Appeal dismissed (Para 14)
Facts of the Case:
complainant Bhimabhai Varjangbhai Rabari, who happened to be the father of the deceased Hamir, had lodged a complaint on 11.06.1994 before the Junagadh city police station, alleging inter-alia, that his son Hamir had left the house for plying rickshaw on rent at about 8:00 a.m. on 08.06.1994 and had not returned home till late night on that day. He therefore had made search in the village, but he was not found. On 09.06.1994 he alongwith others had again made search in the city of Junagadh and other nearby places for the whole day, however the said Hamir was not found, nor his rickshaw was found. Thereafter, on 10.06.1994, he had received information that the rickshaw of Hamir bearing registration No. GRP-683 was found lying unattended at the outskirt of village Chikasa on the Porbandar-Madhavpur road.
Finding of the Court:
Court having framed charge against both accused for alleged offences was hardly any cogent evidence adduced by prosecution to establish nexus of respondent-accused with alleged crime - As stated earlier said was not shown respondent accused in Court for his identification nor his name was given by complainant in complaint though according to had given name of complainant before was lodged by him very identity of respondent being not duly established it is risky to convict respondent-accused on sketchy evidence adduced by prosecution had miserable failed to establish chain of unerringly point to guilt of respondent accused - In that view of matter it could not be said that findings recorded by Sessions Court are perverse more particularly when main accused has already expired and there was hardly any evidence to connect present respondent accused with alleged crime - Court therefore does not find any substance in present appeal.
Result: Appeal dismissed
JUDGMENT :
BELA M. TRIVEDI, J.
1. The appellant-State of Gujarat has preferred the present appeal under Section 378 of Code of Criminal Procedure, challenging the judgment and order dated 28.02.1997 passed by the Sessions Judge, Junagadh (hereinafter referred to as “the Sessions Court”) in Sessions Case No. 97 of 1994, whereby the respondent-accused has been acquitted from the charges levelled against him for the offences punishable under section 302, 201, 364, 365, 397, 34 of the Indian Penal Code read with section 135 of the Bombay Police Act.
2. It the outset, it may be noted that charge was framed by the Sessions Court at Exh.1 against the present respondent, who was the accused No. 2 and also against one Arjanbhai Sarmanbhai, who was the accused no. 1 for the alleged offences, however, the accused no. 1-Arjanbhai Sarmanbhai had expired at the initial stage of trial and therefore, the trial has stood abated qua him and was proceeded against the present respondent-accused no. 2.
3. As per the case of the prosecution, the complainant Bhimabhai Varjangbhai Rabari, who happened to be the father of the deceased Hamir, had lodged a complaint on 11.06.1994 before the Junagadh city police station, alleging inter-alia, that his son Hamir had left the house for plying rickshaw on rent at about 8:00 a.m. on 08.06.1994 and had not returned home till late night on that day. He therefore had made search in the village, but he was not found. On 09.06.1994 he alongwith others had again made search in the city of Junagadh and other nearby places for the whole day, however the said Hamir was not found, nor his rickshaw was found. Thereafter, on 10.06.1994, he had received information that the rickshaw of Hamir bearing registration No. GRP-683 was found lying unattended at the outskirt of village Chikasa on the Porbandar-Madhavpur road. In the meantime, he and his brother-Bhagu Meraman were also in search of his son Hamir and had met one Rabari Ramabhai Ranabhai, residing at village Dharam Aveda, who had informed them that on Wednesday i.e. 08.06.1994 at about 10:00 a.m. when he was passing through village Vanthali with his truck loaded with mangoes, had seen the rickshaw of Hamir, which was being driven by Mer Arjan Sarman (accused no. 1) and that Hamir and one another unknown person were sitting at the back seat of the rickshaw and were going towards Manavadar. The complainant had therefore gone to village Kareni, where he had met one Nathabhai Rabari, who informed him that Hamir had allowed the wife of Nathabhai to sit in his rickshaw up to some distance. The complainant thereafter had also gone to the village Maiyari, where he was informed by one owner of pan-shop that on 08.06.1994 at about 6:30 p.m. three persons had come in one rickshaw, out of whom one appeared to be of Rabari community and two appeared to be of Mer community and that they had purchased pan from his shop. The complainant thereafter had gone to the temple of Narvai Mataji, where on inquiry, he was informed that Arjan Mer alongwith one boy belonging to Rabari community and one unknown person had come in one rickshaw and had made inquiry for the food and thereafter, all the three had left for Madhavpur. The complainant had suspected that since the rickshaw of Hamir was found unattended, his son Hamir must have been kidnapped by Arjan Sarman Mer and other person accompanying him.
4. The said complaint of the complainant was registered at the Junagadh City Police Station, as C.R. No. I-274/1994, for the aforesaid alleged offences. The Investigating Officer, after completing the investigation and collecting sufficient evidence against both the respondent-accused had laid the charge-sheet in the Court. The alleged offences being triable by the Court of Sessions, the said case was committed to the Sessions Court, Junagadh under Section 209 of Criminal Procedure Code, where it was registered as Sessions Case No. 97 of 1994.
5. On the Sessions Court having framed the charge against
