CR.A/16520/2001 1/7 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. CR.A/16520/2001 2/7 JUDGMENT 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. CR.A/16520/2001 3/7 JUDGMENT 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 CR.A/16520/2001 4/7 JUDGMENT 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, CR.A/16520/2001 5/7 JUDGMENT 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 CR.A/16520/2001 6/7 JUDGMENT 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 CR.A/16520/2001 7/7 JUDGMENT 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/