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CR.A/29020/2002 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 290 of 2002
With
CRIMINAL
APPEAL No. 308 of 2002
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 ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
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 ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
MOTILAL
KASTURJI KOLI
Versus
STATE
OF GUJARAT
==========================================
Appearance
:
MS SADHANA
SAGAR for Appellant
MS MS PANCHAL, ADDL. PUBLIC PROSECUTOR for
Opponent
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 01/12/2008
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The
appellants have preferred these appeals under section 374(2) of the
Code of Criminal Procedure, 1973 and challenged the judgment and
order of conviction and sentence passed by the learned Additional
Sessions Judge, Banaskantha at Deesa on 31.1.2002 in Sessions Case
No.120 of 1999 convicting and sentencing them to undergo life
imprisonment and to pay fine of Rs.1000/- each in default thereof to
undergo further imprisonment of one year for the offence under
section 302 of the Indian Penal Code and RI for four months for the
offence under section 135 of the Bombay Police Act.
2. According
to the prosecution case, on 17.4.1999 at about 10:00 p.m., the
accused and one unidentified accused committed murder of Keshabhai
Hemrajbhai, Pachabhai Madhabhai and Bhamrabhai Madhabhai with weapons
like axe, dhariya and wooden log.
3. On
the basis of the first information report lodged by Ugamben Sonabhai,
offence was registered and investigation was started. At the end of
investigation, charge sheet came to be filed against the accused for
the offence punishable under sections 302 and 34 of the Indian Penal
Code and section 135 of the Bombay Police Act. As the offence was
triable by Sessions Court, the case was committed to the City
Sessions Court and it was registered as Sessions Case No.120 of 1999.
The learned Additional Sessions Judge framed charge Exh-2 for the
aforesaid offences against the accused. The accused denied having
committed the offence and claimed to be tried. Therefore, the
prosecution adduced evidence. On completion of recording of
evidence, the learned trial Judge explained to the accused the
incriminating circumstances appearing in the evidence. The accused
in their further statement recorded under section 313 of the Code of
Criminal Procedure, 1973, stated that they have not committed the
offence. After hearing the learned Additional Public Prosecutor and
learned advocate for the accused, the Court convicted the accused.
Being aggrieved by the said decision, both the accused have preferred
the appeals. As both the appeals are against the same judgment, we
have heard both the appeals together and decided the same by this
common judgment.
4. We
have heard learned advocate Ms. Sadhana Sagar for the appellants and
learned APP Ms. Mita Panchal at length and in great detail. We have
also perused the impugned judgment and record and proceedings of the
trial Court.
5. The
learned advocate for the appellant has submitted that there is no
evidence against the accused Motilal and he has been implicated only
on the basis of suspicion. It is also submitted that the evidence
against the accused Amedaji is also not convincing and he has been
implicated only because he had made inquiries. Therefore, there is
no other convincing evidence to connect the accused with the crime
and hence, the impugned judgment is required to be set aside.
6. The
learned APP has submitted that there is clinching evidence
implicating both the accused. Therefore, no interference is
warranted in the impugned judgment.
7. The
medical evidence of PW 4 Dr. Mona Bhatt Exh-15 indicates that death
of Keshabhai Hemraj, Pachabhai Madhabhai and Bhamrabhai Madhabhai
were on account of hemorrhagic shock due to head injury. The
postmortem reports Exh-17, 18 and 19 indicate the injuries found on
the dead bodies. They also indicate that the injuries were on the
vital part of the body. According to the doctor, the injuries were
sufficient in the ordinary course of nature to cause death and such
injuries were possible by dhariya and axe. Therefore, the medical
evidence clearly indicates that all the three deaths were homicidal.
Now the question requires to be determined is whether the accused
were responsible for the fatal injuries.
8. The
first information report Exh-54 is filed by PW 7 Ugamben Sonabhai.
It is alleged therein that on the previous day of incident, in the
evening at about 6:30 p.m., the first informant, her father, her
maternal aunt Rupaben, Parvatiben, Bevuben and Pasuben were talking,
at that time, accused Amedaji Kasturji came to her house and inquired
from her father as to which village he belonged and thereafter, left.
Thereafter, on the night of the incident at about 1:00 o’clok, on
hearing sound of beating, she woke up and saw that three persons were
assaulting Pacha, Bhamra and Keshabhai with axe and wooden log. It
is also alleged that accused Amedaji Kasturji had axe in his hand and
other two wearing white bush-shirts had axe and wooden log in their
hands and they were inflicting blows. The evidence of PW 7 Ugamben
Sonabhai Exh-28 also indicates that accused Amedaji was armed with
axe and had assaulted the deceased with axe, but the witness could
not identify two other assailants. The witness has been extensively
cross-examined. It appears from the cross-examination that accused
Amedaji had assaulted deceased Keshabhai.
9. The
evidence of PW 8 Patuben Exh-30 indicates that on hearing the shouts
of PW 7 Ugamben, she woke up and saw that three persons were beating
the deceased. According to her, out of three assailants, one had
axe, one had dhariya and one had wooden log and she could identify
the accused Amedaji but could not identify other two assailants. The
witness has been extensively cross-examined but it becomes clear
that accused Amedaji was one of the assailants and had attacked the
deceased. This indicates that accused Amedaji was involved in the
offence. Therefore, the prosecution case against the accused Amedaji
has been proved beyond reasonable doubt. Therefore, the learned
Judge was justified in convicting the accused Amedaji.
10. As
regards conviction of accused Motilal Kasturji is concerned, none of
the eye witness has identified him. Even there is no test
identification parade to identify the assailant. Therefore, there is
no evidence to indicate that accused Motilal Kasturji was one of the
assailants and had caused fatal injury to the deceased. Therefore,
the learned trial Judge committed serious error in convicting him for
the offence of murder of Keshabhai Hemrajbhai, Pachabhai Madhabhai
and Bhamrabhai Madhabhai. Therefore, his conviction is required to
be quashed and set aside.
11. In
the result, Criminal Appeal No.290 of 2002 is allowed. The judgment
and order of conviction and sentence passed by the learned Additional
Sessions Judge, Banaskantha at Deesa on 31.1.2002 in Sessions Case
No.120 of 1999 is quashed and set aside qua accused Motilal Kasturji
Koli and he is ordered to set free, if not required in any other
offence. The fine, if paid, is ordered to be returned to the
accused.
Criminal
Appeal No.308 of 2002 fails and stands dismissed. The judgment and
order of conviction and sentence passed by the learned Additional
Sessions Judge, Banaskantha at Deesa on 31.1.2002 in Sessions Case
No.120 of 1999, is confirmed qua accused Amedaji Kasturji Koli.
(BHAGWATI
PRASAD, J.)
(BANKIM
N. MEHTA, J.)
shekhar/-
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