Full Judgment Text
2023 INSC 1003
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1926 OF 2011
PRABHATBHAI AATABHAI DABHI ... APPELLANT(S)
VS.
STATE OF GUJARAT ... RESPONDENT(S)
J U D G M E N T
Abhay S.Oka, J.
Heard the learned counsel appearing for the
parties.
2. The appellant has been convicted for the offence
punishable under Section 302 of the Indian Penal Code
(for short "IPC"). The conviction of the appellant by
the Sessions Court has been confirmed in appeal by the
impugned judgment of the High Court.
3. We must refer to the case of the prosecution in
brief. PW-2-Kalabhai, the brother of the deceased-
Hukabhai, is the first informant. PW-3 Ramabhai is from
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.11.11
15:47:24 IST
Reason:
the same village in which the appellant and the deceased
were residing. According to the case made out in the
Criminal Appeal No.1926/2011 Page 1 of 5
complaint, PW-1 was at the grocery shop of PW-2 with one
Ratabhai. We may note here that date of the incident is
th
12 November, 1997. According to the prosecution case,
the deceased-Hukabhai started proceeding towards his
field at about 3.00 p.m. He was followed by the
appellant-accused with a bamboo stick in his hand. The
accused came back near the shop around 6.30 p.m. with a
stick in his hand. According to the prosecution, the
appellant confessed before PW-2, PW-3 and one Ratabhai
that he had assaulted the deceased with a stick.
4. The motive pleaded by the prosecution is that on
th
28 October, 1997, the appellant, Abhabhai and Bhemabhai
consumed liquor and a quarrel started amongst them. The
Sarpanch lodged a complaint. In the said proceedings,
the deceased took side of Abhabhai.
5. With the assistance of the learned counsel
appearing for the parties, we have perused the notes of
evidence and other documents on record. The prosecution
has relied upon (a) extra judicial confession of the
accused allegedly made before PW-2 and PW-3; (b) recovery
of axe at the instance of the appellant-accused coupled
with evidence of PW-5-Chanchalben who claimed that the
same axe was taken away by the appellant from her house;
and (c) blood stains were found on the clothes on the
person of the appellant.
Criminal Appeal No.1926/2011 Page 2 of 5
6. As far as the alleged extra judicial confession
before PW-2 and PW-3 is concerned, we may note here that
admittedly, PW-2 is the brother of the deceased. PW-3 is
a close acquaintance of PW-2 and the deceased. It is not
brought on record by the prosecution that the appellant
had any relationship with both of them. Normally, an
accused would make a confessional statement before a
person in whom he has implicit faith. In the normal
course, an accused would not make a confessional
statement before the real brothers of the deceased.
7. When prosecution relies upon the evidence of extra
judicial confession, normally, the Court will expect that
the evidence of the persons before whom extra judicial
confession is allegedly made, must be of sterling
quality. In this case, it is very difficult to believe
that the appellant-accused would make confession before
the real brother and a close acquaintance of the
deceased.
8. That is not the only reason for discarding the
theory of extra judicial confession. We may note here
that according to PW-2 and PW-3, the appellant went after
the deceased, while he was carrying a bamboo stick.
Their version is that the extra judicial confession was
made by the appellant that he assaulted the deceased with
Criminal Appeal No.1926/2011 Page 3 of 5
the stick. But the case of the prosecution, as made out,
is that at the instance of the appellant, an axe was
recovered which was the weapon of assault. The stick was
not recovered. According to the version of PW-2 and
PW-3, the appellant went after the deceased with a stick
in his hand and while returning, he was carrying the same
stick.
9. The other circumstance against the appellant is
that clothes on his person were stained with blood.
However, we find from the Serology Report on record that
the clothes on the person of the deceased were having
blood stains of 'O' group. Three clothes recovered from
the appellant were having blood stains. As regards the
trouser of the appellant, the opinion was inconclusive.
But as regards the other two items of clothes, it was
found that the blood was of 'A' group. This militates
against the case of the prosecution that the blood stains
on the clothes of the appellant were of the blood of the
deceased. The recovery of the axe at the instance of the
appellant is of no relevance, as according to PW-2 and
PW-3, the appellant was carrying a stick.
10. On all counts, the prosecution has failed to
establish the guilt of the appellant beyond a reasonable
doubt. We may note here that the appellant has already
undergone incarceration for a period of more than 11
Criminal Appeal No.1926/2011 Page 4 of 5
th
years and he was enlarged on bail by this Court on 14
October, 2011.
11. The impugned judgments are set aside. The
appellant is acquitted of the offence alleged against
him. The bail bonds of the appellant shall stand
cancelled.
12. The appeal is accordingly allowed.
..........................J.
(ABHAY S.OKA)
..........................J.
(PANKAJ MITHAL)
NEW DELHI;
November 08, 2023.
Criminal Appeal No.1926/2011 Page 5 of 5