Prabhatbhai Aatabhai Dabhi vs The State Of Gujarat

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

the same village in which the appellant and the deceased Digitally signed by Anita Malhotra Date: 2023.11.11 15:47:24 IST Reason:

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

12th 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

28th 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 years and he was enlarged on bail by this Court on 14 th

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