Honourable Mr. Justice A.L. Dave
1. The appellant was arraigned as accused before the Sessions Court, Dahod, in Sessions Case No. 100 of 2005 along with elder brother Nirubhai Kuberbai Kapasia and Kantaben, wife of Nirubhai Kuberbai Kapasia, for the charge of having committed murder of the appellant''s wife- Geetaben by causing serious injuries with knife and stones under instigation and abetment by two other accused persons. The Trial Court convicted the appellant for the charge of murder of his wife and sentenced him to undergo imprisonment of life with fine of Rs. 1000/-, in default, to undergo six months imprisonment, vide judgment and order dated 06.01.2006. By that very judgment, the Trial I Court acquitted remaining two accused persons-original accused nos. 2 and 3 and hence, this appeal is filed by the original accused no. 1. The case of the prosecution in brief is that the appellant was staying with his wife Geetaben at Village: Ukaradi in Dahod Taluka and Dist: Dahod. On 06.04.2005, at about 04.00 a.m. in the early morning, the appellant is alleged to have assaulted his wife Geetaben with knife and stone and caused her vital injuries. On being assaulted, the deceased raised shouts for help, and therefore, Ramiben-mother of the accused, who was in another room, reached the place and found the deceased lying dead over there. She, therefore, lodged an F.I.R. with Dahod Rural Police Station. On the basis of which, offence was registered and charge-sheet came to be filed before the Judicial Magistrate First Class, Dahod, who in turn, committed the case to the Court of Sessions and Sessions Case No. 100 of 2005 came to be registered. Charge was framed against three accused persons at Exh. 1, to which they pleaded not guilty and came to be tried. At the end of trial, the Sessions Court acquitted remaining two accused persons and convicted present appellant, as stated above and hence, this appeal.
2. We have heard learned advocate Ms. Sadhana Sagar for the appellant and Mr. Niraj Soni, learned Additional Public Prosecutor for the respondent-State.
3. According to learned advocate Ms. Sadhana Sagar for the appellant, all independent witnesses examined by the prosecution have turned hostile and have not supported the prosecution case except P.W. 6, P.W. 7 and P.W. 8, who are relatives of the deceased on her parental side. Though they have not turned hostile, their evidence does not implicate the accused in any manner.
3.1 Learned advocate Ms. Sadhana Sagar for the appellant, submitted that even the first informant has not supported the case of the prosecution. The Trial Court has recorded conviction only on the basis of F.S.L. report and alleged confessions made by the accused at the time of arrest. In this context, she submitted that the F.S.L. Report indicates that clothes of the appellant was stained with blood of the victim, but in absence of any other evidence, it cannot be used to record conviction. It is only one of the circumstances and complete chain has to be established.
3.2 Learned advocate Ms. Sadhana Sagar for the appellant submitted that here is case where there are witnesses, who were projected as eyewitnesses, but they have not supported the case of the prosecution. Besides, the blood-group of the appellant is not brought on record by the prosecution, and therefore, it cannot be said with certainty that the blood found on his clothes was that of the deceased and none else. Learned advocate Ms. Sadhana Sagar for the appellant, therefore, submitted that the appeal may be allowed.
4. On the other hand, learned Additional Public Prosecutor for the respondent-State, has opposed this appeal. According to him, the incident occurred in a closed room at about 04.00 a.m. where the appellant and his wife were the only persons present. It is, therefore, for the appellant to explain as to how the deceased died. The conviction is, therefore, justified and may be upheld by dismissing the appeal.
5. we have examined record and proceedings in context of rival submissions. We find that except P.W. 6, P.W. 7 and P.W. 8 at Exh. 16, 17 and 18 respectively and other official witnesses, no witness has supported the prosecution case. This includes the first informant, and therefore, there is no base for recording conviction. P.W. 6, P.W. 7 and P.W. 8 are relatives of the deceased on her parental side. From their depositions, it emerges that they have no knowledge about the incident, and therefore, their evidence does not canvass the case of the prosecution any further. The only fact, that needs consideration is that, finding of blood of the group of the deceased on the clothes of the accused-appellant. In this context, it may be recorded that blood group of the accused is not known and it is not known whether the accused had suffered any injury or not, and therefore, it could be conclusively said that the blood found on his clothes was of the group of the deceased alone and none else. By virtue of first informant report, Ramiben-mother of the appellant is not supporting the prosecution case. It is not possible to conclude that the deceased and the appellant were the only persons present in the house. On the contrary, even as per the prosecution case, the appellant acted at the instigation of and with the abetment by accused nos. 2 and 3, who have been acquitted. It would, therefore, be not proper to expect the appellant to explain as to how the deceased died in the house. For the foregoing reasons, we are of the view that the Trial Court committed error in convicting the appellant and the appeal must succeed. Hence, the appeal is allowed. The conviction recorded in Sessions Case No. 100 of 2005 is set-aside. The appellant is acquitted from the charge leveled against him. He be set at liberty forthwith, if his presence is not needed in any other case.
