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CR.A/16520/2001 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 165 of 2001
With
CRIMINAL
APPEAL No. 364 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No.
2
To
be referred to the Reporter or not ? No.
3
Whether
their Lordships wish to see the fair copy of the judgment ? No.
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No.
5
Whether
it is to be circulated to the civil judge ? No.
=====================================================
VIRJI
SAVJI GELAT & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=====================================================
Appearance
:
IN
CRIMINAL APPEAL NO. 165 of 2001
MR
Parimal P PATEL for MR P. S PATEL for Appellant(s) : 1 - 2.
NR
HANSABEN B PUNANI ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1.
IN
CRI. APPEAL NO. 364 OF 2001
MS.
HANSABEN B. PUNANI APP for Appellant ? State
MR.
B.P. DALAL for the respondents No.2 and
3.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 13/11/2008
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. Both
these appeals arise out of judgment and order passed on 15-1-2001
by learned Asstt. and Addl. Sessions Judge, Sabarkantha at
Himatnagar, Camp at Modasa in Sessions Case No.112 of 1999. As both
these appeals arise out of the same judgment the appeals have
been heard and decided by common judgment.
2. Appellants
in Criminal Appeal No.165 of 2001 have been convicted for the
offence punishable u/s 302 read with Section 34 of the I. P. Code and
have been sentenced to undergo life imprisonment and to pay fine of
Rs.5000/-, in default thereof, to undergo further six months’
rigorous imprisonment. Criminal Appeal No. 364 of 2001 has been filed
by the State against acquittal of other accused for the offence
charged against them.
3. According
to the prosecution case, one Marta Savji was killed by members of
family of Gameti and therefore keeping grudge thereof on 11-8-1999
at about 4-00 in the evening accused Virji Savji and Ramesh Marta
armed with axe, accused Dhanji Savji and Dita Savji armed with
sticks abducted Shantibhai Madhubhai and took him to their field and
beat him with axe and sticks. On account of beating Shantilal
sustained injuries and died. Therefore, Mavjibhai Rupabhai lodged
First Information Report before Meghraj Police Station.
4. On
the basis of the First Information Report, investigation was started.
At the end of investigation, charge sheet came to be filed against
the accused for the offences punishable u/ss 143, 149, 364 and 302
of the I.P. Code.
The case was committed to the Sessions Court, Sabarkantha at
Himatnagar, Camp at Modasa and it was registered as Sessions Case
No. 112 of 1999. Learned Additional Sessions Judge, Sabarkanatha at
Himatnagar, Camp at Modasa, framed charge Exh. 3 against the accused
for the offence punishable u/ss 143 read with Section 149, 364 and
302 of the I.P. Code. The accused pleaded not guilty and claimed to
be tried and therefore the prosecution adduced evidence.
5. On
completion of recording of evidence, the learned trial Judge
explained to the accused the incriminating circumstances appearing
against them in the evidence. The accused in their further
statement recorded u/s 313 of the Code of Criminal Procedure
stated that they have have been falsely implicated in the offence.
6. After
hearing the learned A.P.P. for the State and learned advocate for the
accused, the trial Court convicted and sentenced appellants Virji
Savji Gelat and Ramesh Marta Gelat as mentioned hereinabove but
acquitted other accused. Being aggrieved by the said decision
convicts Virji Savji Gelat and Ramesh Marta Gelat filed Criminal
Appeal No.165 of 2001 and the State filed Criminal Appeal No.364 of
2001 against acquittal of other accused.
7. We
have heard learned advocates for the parties and learned A.P.P. Ms.
Hansaben Punani for the State at length and in great detail. We have
also perused the impugned judgment and records and proceeding of the
trial court.
8. According
to the prosecution, P.W. 2 Mavajibhai Rupabhai Exh.13, P.W. 4
Mukeshbhai Bhanjibhai Exh. 18, P.W. 5 Kanubhai Shantibhai Exh. 19 and
P.W. 6 Kantaben Sureshbhai Exh.22 were the eye witnesses to the
incident. All the eye witnesses have deposed that appellants Virji
Savji and Ramesh Marta had axe and accused Dhanji Savji and Dita
Savji had sticks in their hand and they beat Shantilal Madhubhai.
According to P.W. 4, the appellants gave axe blows, and other
accused gave stick blows on the head of the deceased. P.W.5 has also
deposed that the appellants gave axe blows on the head of the
deceased and other accused gave stick blows. P.W. 6 has also
deposed that the appellants gave axe blows on the head of the
deceased and other accused hit on chest with sticks. Therefore,
version given by the eye witnesses regarding role played by the
appellants is consistent.
9. The
prosecution examined P.W. 13 Dr. Dipakkumar Sarveshwar Gupta at
Exh. 38. According to the witness, injuries No.1, 2 and 3 mentioned
in Column No.17 of Postmortem Report Exh.19 were possible by sharp
cutting weapon like axe and the external injuries mentioned in Column
N.17 of P.M. Report Exh.19 were sufficient in the ordinary course of
nature to cause death. It appears that the injuries by axe were
caused on vital part of the body and cause of death was shock due to
injuries to the brain. This evidence clearly indicates that death of
Shantilal was homicidal in nature and appellants were responsible
for such injuries..
10. In
view of above, there is clinching evidence to indicate that
appellants Virji Savji and Ramesh Marta were armed with axe and had
inflicted fatal injuries on the vital part of the deceased. The
medical evidence supports the oral version given by the
witnesses. There is nothing on record to indicate that the appellants
Virji Savji and Ramesh Marta are falsely implicated in the offence.
Therefore, there is no reason to disbelieve the prosecution case qua
the appellants.
11. F.I.R.
Exh. 14 lodged by P.W. 1 Mavjibhai Rupabhai also gives details with
regard to role attributed to the appellants. Learned advocate for
the appellants of Criminal Appeal No.165 of 2001 has not been able
to point out any infirmity in the impugned judgment with regard to
conviction and sentence of the appellants. Therefore, there is no
merit in the appeal filed by the convicts against their conviction.
12. As
regards acquittal of other accused, the act attributed by them is
beating with sticks, but the evidence in that regard is
inconsistent. The medical evidence indicates that the injuries were
simple. The learned trial Judge has in detail assigned reasons for
coming to the conclusion that the prosecution has failed to prove
beyond reasonable doubt the case against the accused who have been
acquitted. We do not find any infirmity in the impugned judgment with
regard to acquittal of other accused. Therefore, acquittal appeal
filed by the State is required to be dismissed.
14. In
the result, both the appeals fail and are dismissed and judgment
and order of conviction and sentence recorded against appellants
Virji Savji Gelat & Ramesh Marta Gelat of Criminal Appeal No.165
of 2001 for the offence punishable u/s 302 read with Section 34 of
the I.P. Code and acquittal of other accused of Criminal Appeal
No.364 of 2001rendered on 15-1-2001 by the learned Asstt. and
Addl. Sessions Judge, Sabarkantha at Himatnagar Camp at Modasa in
Sessions Case No. 112 of 1999 is confirmed. The respondent Nos. 2
and 3 in Criminal Appeal No.364 of 2001 are on bail. Therefore,
their bail bonds stand cancelled.
The
muddamal be disposed of as directed by the trial court.
(Bhagwati
Prasad, J.)
(Bankim
N. Mehta, J.)
/JVSatwara/
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