CR.A/49220/2001 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 492 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. ================================================= RAKESHBHAI MANSINGBHAI GAMIT - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MR UTPAL M PANCHAL for Appellant(s) : 1, MS MITA S. PANCHAL APP for Respondent-State ================================================= CR.A/49220/2001 2/8 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 02/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has filed the present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order passed on 12-5-2000 by Addl. Sessions Judge, Vyara in Sessions Case No. 144 of 1998 convicting and sentencing him to undergo life imprisonment for the offences punishable u/s 302 of the I.P. Code and to pay fine of Rs.250/- i/d to undergo simple imprisonment for one month. 2. In brief the prosecution case was that on account of disputes about trespass in a tomato farm of accused Vasanjibhai, there was altercation between deceased Babliben, Dakhaliben and accused. On 28-2-1998 at about 19-30 p.m. Babliben and Dakhaniben were taking their meal in front of their house and Shantabhai Vajnabhai Gamit, his wife and daughter were CR.A/49220/2001 3/8 JUDGMENT eating inside their house, at that time, on hearing sound, Shantabhai and his wife came out of the house and saw that Babliben and Dakhaniben were lying on the ground and had injuries on their head and also saw that accused Rakeshbhai Mansingbhai and Vasanjibhai Khalapabhai Gamit were running away after throwing away wooden log. Babliben and Dakhaniben died on account of injuries. Therefore, first information was lodged before Songadh Police Station. 3. On the basis of the First Information Report lodged by Shantabhai Vajnabhai, investigation was started. At the end of investigation charge sheet was filed against the accused for the offence punishable u/ss 302-114 of the I.P. Code. As the case was triable by Sessions Court, the case was committed to Sessions Court, Vyara and it was registered as Sessions Case No. 144 of 1998. Learned trial Judge framed charge Exh. 6 against accused for the aforesaid offences. The accused denied having committed the offence and claimed to be tried and therefore the prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against CR.A/49220/2001 4/8 JUDGMENT them in the evidence. The accused in their further statement recorded u/s 313 of the Criminal Procedure Code, 1973 stated that they are innocent and false case is foisted upon them. 5. The learned trial Judge after appreciating the evidence led by the prosecution and relying on the evidence found the charge as proved against accused Rakeshbhai Mansingbhai Gamit and convicted and sentenced him as stated hereinabove, but acquitted other accused. Being aggrieved by the said decision, the appellant – convict has preferred this appeal. 6. We have heard Mr. U.M. Panchal, learned advocate for the appellant and Ms. Mita Panchal learned Addl. Public Prosecutor for the respondent - State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 7. Learned advocate Mr. Panchal for the appellant submitted that except the evidence of two eye witnesses there is no other evidence to connect the appellant with the offence and their evidence is not reliable and is tainted with contradictions. Therefore, the learned trial Judge could not have been relied upon their CR.A/49220/2001 5/8 JUDGMENT evidence. It is also submitted that two witness did not see the accused inflicting fatal blows but they saw the accused running away from the scene of offence. Therefore, the prosecution case is not proved beyond reasonable doubt. Hence, the appellant could not have been convicted. Therefore, interference is warranted in the impugned judgment and the appeal is required to be allowed. 8. Learned A.P.P. Ms. Panchal submitted that the evidence of the witnesses clearly indicates involvement of the accused and there is no explanation with regard to the incriminating circumstances by the accused about his presence at the place of the incident. Therefore, the learned trial Judge was justified in relying upon the evidence and no interference is warranted in the impugned judgment. 9. Postmortem Notes Exh.17 and 18 indicate that death of Babliben and Dakhaniben was on account of shock haemrrhage and coma following injury to head. P.W. 1 Dr. Sukhdev Indramani Behra Exh. 16 also deposed that the injuries found on the dead bodies were sufficient in the ordinary course of nature to cause death and such injuries were possible by wooden log. Therefore, homicidal death is proved beyond reasonable CR.A/49220/2001 6/8 JUDGMENT doubt. 10. As regards involvement of the appellant in the offence is concerned, the evidence of P.W. 4 Shantabhai Vajnabhai Gamit Exh. 31 indicates that on the day of incident, the deceased were outside his house and he was having his meal inside the house and on hearing shouts from Babliben, they came out of the house and saw accused Rakeshbhai running away from the place of incident. There was no reason for the accused to be there at the time of incident. The accused has not offered any explanation with regard to the incriminating circumstance of his presence at the time of the incident. 11. The evidence of P.W. 5 Ramaniben Shantabhai Exh. 34 also indicates that there was quarrel between accused Rakeshbhai and deceased Babliben and the deceased was killed by accused Rakeshbhai with wooden log. The witness has been extensively cross-examined but nothing impeaching his credibility is brought out. It appears from the testimony of this witness that accused Rakeshbhai attacked the deceased with wooden log. 12. In view of above consistent and convincing evidence, it clearly emerges that accused CR.A/49220/2001 7/8 JUDGMENT Rakeshbhai had quarrel with the deceased and on the day of the incident he attacked the deceased with wooden log. The medical evidence indicates that blows were given on the head of the deceased. The witnesses have also deposed about the presence of accused Rakeshbhai at the place of incident. Accused Rakeshbhai has not offered explanation with regard to his presence at the house of the deceased at the time of incident. Therefore, it appears that accused Rakeshbhai had assaulted the deceased with an intention to cause their death. First Information Report Exh. 32 lodged by the witness also indicates that there were quarrels between the deceased and accused. But as the accused were strong headed persons no police complaint was filed. 13. In view of above, it appears that except two witnesses none was present at the time of incident and their evidence is consistent and reliable. Therefore, the learned trial Judge was justified in relying upon the evidence of these witnesses to convict the accused. The learned advocate for the appellant has not been able to point out any infirmity in the impugned judgment. Therefore, no interference is warranted in the impugned judgment. The appeal does not merit acceptance. CR.A/49220/2001 8/8 JUDGMENT 14. For the foregoing reasons, the present Criminal Appeal fails and is dismissed. The judgment and order of conviction and sentence qua appellant Rakeshbhai Mansingbhai Gamit rendered by the learned Addl. Sessions Judge, Vyara on 5- 5-2001 in Sessions Case No. 144 of 1998 sentencing the appellant for the offence punishable u/s 302 of the I.P. Code is confirmed. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/