13 Yrs On, Gujarat High Court Acquits Man In Murder Case, Says Prosecution "Suppressed" Alibi Evidence
The Gujarat High Court acquitted a man in a murder case after observing that he had raised a plea of alibi which was supported by 13 independent witnesses, however this material was "deliberately suppressed" and not produced along with the charge-sheet.In doing so the court observed that the Investigating Officer failed to place the material on record before the trial court amounting...
The Gujarat High Court acquitted a man in a murder case after observing that he had raised a plea of alibi which was supported by 13 independent witnesses, however this material was "deliberately suppressed" and not produced along with the charge-sheet.
In doing so the court observed that the Investigating Officer failed to place the material on record before the trial court amounting to dereliction of duty.
The court observed that despite the accused no. 1 taking the plea of alibi from the very inception, neither the Investigating Officer, nor the Public Prosecutor/special Public Prosecutor, nor the Presiding Officer of the trial Court thought it fit to properly examine or place on record the material collected during the investigation concerning the said plea, "thereby failing to make efforts to reach at the truth".
It was alleged that due to a prior enmity, the accused persons acting with a common intention, committed his murder. It was alleged that Accused No.2 – Jasminbhai Bharatbhai Kothari fired upon the deceased with a revolver, while Accused No.1 – Asim @ Munmun @ Asif Abdulkarimbhai Solanki assaulted the deceased with a farsi (axelike weapon) on his face and head, causing fatal injuries.
A division bench of Justice Ilesh J Vora and Justice RT Vachhani in its order noted that Accused No.1 has raised a specific plea of alibi that he was not present at Botad on the date of the incident, which has not been effectively rebutted by the prosecution.
The court observed that except for the complainant, none of the witnesses have been examined to establish the presence of the accused No. 1 at the scene of offence. Nor does it appear that the Investigating Officer made any effort to verify or scrutinize the presence of the accused by examining persons residing in the vicinity of the place of occurrence, the bench added.
It thus said:
"The plea of alibi raised by the accused No.1 is not only supported by the deposition of the Investigating Officer, who admitted in his evidence that he had recorded the statements of the 13 independent witnesses, but the said statements were not placed on record by him despite the said admission. These 13 witnesses included police personnel, vegetable vendors, businessmen and other persons from Anand. The failure of the Investigating Officer to place the material evidence collected during the course of investigation on record amounts to a serious dereliction of duty and raises grave doubt about the fairness of the prosecution...
In the present case, Accused No.1 raised the plea of alibi from the very inception of the case. Both the Investigating Officers have admitted that they recorded statements of 13 witnesses from Anand and collected CDR/location data showing the appellant's presence at Anand at the relevant time. This material was, however, deliberately suppressed and not produced with the charge-sheet. Pursuant to the directions of the Hon'ble Supreme Court and this Court, additional evidence has been recorded. After appreciating the same, we find that the plea of alibi stands sufficiently established on the touchstone of preponderance of probabilities. The prosecution has failed to rebut it. Accused No.1 is, therefore, entitled to the benefit of doubt and acquittal"
The court said that it appeared that Investigating Officer had conducted the investigation and recorded statements in relation to the plea of alibi raised by Accused No. 1.
However, he deemed it fit not to place or produce the same before the Court, the bench said.
It further remarked that neither the Public Prosecutor/Special Public Prosecutor nor anyone else took "the pain to place the same before the Court, nor did the Court consider this aspect".
However with respect to Accused No.2 – Jasminbhai Bharatbhai Kothari the court noted that the evidence of the complainant clearly and consistently attributes the role of firing with a revolver to him.
It said that the complainant's testimony is corroborated by the medical evidence showing firearm injuries, the FSL reports confirming the use of a firearm, the scene of offence panchnama, and the proved motive arising out of previous enmity and the land dispute.
"After a detailed and meticulous appreciation of the entire evidence on record, we find that the prosecution has been able to prove the guilt of Accused No.2 beyond reasonable doubt for the offence of murder with common intention. We find no reason to interfere with the conviction recorded by the learned Sessions Judge under Section 302 read with Section 34 IPC. The appeal filed by Accused No.2 is, therefore, dismissed," the court said.
The court however found that the prosecution has failed to prove the charge of robbery under Section 397 IPC against Accused No.2 beyond reasonable doubt. It observed that no recovery of the alleged looted articles has been made from either of the accused. Finding the conviction under Section 397 IPC as unsustainable and the court set it aside.
Accused no. 1's appeal was allowed and Accused no. 2's appeal was dismissed.
Case title: ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI v/s STATE OF GUJARAT
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 249 of 2019 and R/CRIMINAL APPEAL NO. 417 of 2019