CR.A/29020/2002 1/6 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 CR.A/29020/2002 2/6 JUDGMENT 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 CR.A/29020/2002 3/6 JUDGMENT 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 CR.A/29020/2002 4/6 JUDGMENT 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 CR.A/29020/2002 5/6 JUDGMENT 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. CR.A/29020/2002 6/6 JUDGMENT 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/-