State Of Gujarat vs Rameshji Jethaji Bhil & 1 Other(s)

J.B.Pardiwala, J

This Appeal is at the instance of the State of Gujarat and is directed against the judgment and order of acquittal passed by the Additional Sessions

Judge, Banaskantha at Palanpur dated 30th September 1995 in the Sessions Case No. 70 of 1994.

It appears from the materials on record that the original accused persons, namely Rameshji Jethaji Bhil and Sumriben @ Ganga Bhil, were put on

trial in the Court of the Additional Sessions Judge, Palanpur, for the offences punishable under Sections 302, 201 read with Section 34 of the I.P.C.

and Section 135 of the Bombay Police Act.

The case of the prosecution is that Sumriben had illicit relations with Rameshji. On account of such illicit relationship, the accused persons

committed the murder of the deceased, who happened to be the husband of Sumriben. According to the case of the prosecution, after committing the

murder, the accused persons buried the dead body of the deceased at a particular place. As the whereabouts of the deceased were not known and he

went missing past almost two and a half months, his son PW.-1 Manglaji lodged a First Information Report Exh.11 dated 10.02.1994 at the Palanpur

Taluka Police Station. Upon registration of the F.I.R., the Investigating Officer had commenced the investigation and the police drew the discovery

panchnama of the place where the dead body was buried by the accused persons. The discovery panchnama is said to have been drawn under the

provisions of Section 27 of the Evidence Act. It is the case of the prosecution that the accused persons while they were in the police custody led the

police party along with the panch witnesses to the place where the dead body was buried. The body was exhumed by drawing a panchnama. The

dead body, thereafter was sent for postmortem examination.

Unfortunately, it appears that the postmortem report came to be exhibited without proving the contents of the same by examining the Doctor. The

postmortem report otherwise, could not have been exhibited merely on admission.

It appears that the entire case hinges on circumstantial evidence. All the panch witnesses have turned hostile. To add more to this, the prosecution

also failed to examine the Investigating Officer. This is a case, in which neither the Investigating Officer entered the witness box nor the Doctor, who

performed the postmortem. In such circumstances, the prosecution seeks to rely upon only one piece of incriminating circumstance, and that is the

discovery panchnama. The panch-witnesses of the discovery panchnama have also been declared as hostile witnesses. The contents of the

panchnama otherwise could have been proved through the evidence of the I.O. but the I.O. also, as noted above, has not been examined.

The learned APP would submit that even if the discovery panchnama could not be said to have been proved in accordance with law, the conduct of

the accused persons in leading the police party to a particular place and pointing out the place of burial of the dead body reflects upon their conduct. It

is submitted that such conduct of the accused persons would be a relevant fact under Section 8 of the Evidence Act.

Having gone through the entire evidence on record, oral as well as documentary evidence, we are of the view that the Trial Court committed no

error in acquitting the accused persons of all the charges.

This being a case of circumstantial evidence, the prosecution has to prove the chain of circumstances pointing only towards the guilt of the accused.

We may only say that an accused cannot be convicted for a serious offence like murder only on the basis of his conduct, which may be a relevant fact

under Section 8 of the Evidence Act. In the absence of any other evidence on record, it is difficult to take the view that the Trial Court committed an

error in acquitting the accused persons.

In such circumstances referred to above, this acquittal appeal fails and is hereby dismissed.