Point of Law: delay in recording the statement of witnesses under Section 161 of the CrPC are required to be accepted unless the Investigating Officer is asked questions about delay in such recording such statements

JUDGMENT :

A.J. DESAI, J.

1. An application being Criminal Misc. Application No.2/2020 in Criminal Appeal No.849/2016 came to be circulated by Mr. Jeet J. Bhatt, learned advocate for the appellant herein, who has been appointed through High Court Legal Aid Services Committee for suspension of sentence on the ground that the appellant is behind the bars since more than 10 years.

On inquiry it was fond that the appellant herein – original accused is behind the bars since more than 10 years and having found that the Record & Proceedings have reached to this Court and paper-book is prepared, we requested the learned advocates appearing for the respective parties for final hearing of the criminal appeal and accordingly, the criminal appeal itself is heard finally today.

2. Present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the appellant herein – original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 19.02.2015 passed by the learned 6th Additional Sessions Judge, Surat in Sessions Case No.21/2011, whereby the appellant herein – original accused has been convicted for the offences punishable under Section 302 of the Indian Penal Code, 1860 and Section 135(1) of the Gujarat Police Act and sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code, 1860 with fine of Rs.15,000/- and in default of payment of fine, to undergo further simple imprisonment for one year and to undergo simple imprisonment for six months for the offence under Section 135(1) of the Gujarat Police Act with fine of Rs.500/- and in default of payment of fine, to undergo further simple imprisonment for one month.

3. The short facts arising from the record of the case are as follows :

3.1 That, one Dineshbhai Vallabhbhai Vasava, resident of village Harsani, Taluka Mangrole, District Surat lodged an FIR with Mangrole Police Station on 09.10.2010 disclosing that he is living with his parents and other family members. That, his father had three brothers who have expired and had one sister viz. Laduben Sukhabhai who was residing in the same village since she had some matrimonial problem and since years she was residing there and was having different parcels of land which was given by the complainant’s grandfather and father of said Laduben.

3.2 It was further disclosed that said Laduben had gone to her field for carrying out agricultural activities. When the complainant along with his wife went to the field at around 12 O’Clock in the noon and tried to find out said Laduben, who happened to be his paternal aunt, he found his aunt lying in the field having injuries on face, nose and mouth. He informed the Sarpanch of the village viz. Sureshbhai and called him at the place of incident. He informed the said Sarpanch that he had doubt against the appellant since there were some altercations between the deceased lady and the present appellant. It was further alleged that the appellant had doubts that she is witch and he may commit her murder and therefore, he has doubts against the appellant.

3.3 The police thereafter visited the place, recorded statements of seven witnesses. The appellant came to be arrested and on conclusion of the investigation, charge-sheet came to be filed. The same was submitted before the competent Court who in turn committed the case to the concerned Session Court.

3.4 The charge (Exh.4) came to be framed against the appellant which he denied and therefore, the trial proceeded in accordance with law at the instance of the Prosecutor. The prosecution examined 8 witnesses and produced several documentary evidences in nature of panchnama, medical evidence, reports from Forensic Science Laboratory etc. The defence did not examine any witnesses. Statement under Section 313 of the CrPC was recorded in which the appellant denied the case put forth against him.

3.5 The learned Sessions Judg