STATE OF GUJARAT Vs. JILUBHAI D. VALA

JUDGEMENT

(1.) The State has preferred an appeal against the judgment and order of acquittal passed by the learned Sessions Judge, Amreli in Sessions Case No.114 of 1992. The respondents accused were charged for the offences punishable under Section 302 read with Section 34 and 114 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. The learned Sessions Judge after recording the evidence led by the prosecution, by his judgment and order dated 05.05.1994, has been pleased to acquit the respondents accused for the offences with which they were charged.

(2.) The case of the prosecution in nutshell is that on 21.08.1992 at about 04:00 pm the deceased Shambhu, the complainant Rameshbhai and Javerbhai were travelling on motorcycle from village Aberda to village Morzar and when they reached near Manavav, the respondent no.1, who was armed with weapon, attacked Shambhubhai who was driving the motorcycle. At that time, when the complainant Rameshbhai tried to intervene, the respondent no.2 gave knife blow to the complainant. Accused No.1 had inflicted blow with knife to the deceased and thereafter they ran away. The complainant informed one Devjibhai and thereafter Rameshbhai filed a complaint. Investigation was carried out by the Investigating Officer. He had recorded statements of witnesses. He had prepared panchnama and recovered the articles and then sent it to FSL and after collecting necessary evidence he had filed charge-sheet before the trial Court. As offence was sessions triable, the trial Court, as per section 209 of the Cr.P.C, committed the case to the Court of Sessions where it was renumbered as Sessions Case No.114 of 1992. The prosecution has examined as many as 15 witnesses and produced 56 documentary evidences. The case of the prosecution hinges on the evidence of the complainant, eye-witness, Executive Magistrate and the documentary evidence i.e. FSL report and, therefore, this Court would discuss their evidences.

(3.) The complainant Rameshbhai Devjibhai is P.W. No.2 (Exh.45) and according to his evidence the deceased Shambhu was driving vehicle i.e. motorcycle while the P.W.No.3 Zaverbhai Laljibhai (Exh.48) was pillion rider and thereafter the complainant also sat as pillion rider. When they reached near Manavav, accused no.1 along with the accused no.2, wearing khakhi dress, who was not known to this witness, were standing in the middle of the road. They tried to intercept motorcycle but the victim did not stop the motorcycle, so the accused no.1 inflicted knife blow on the shoulder of deceased Shambhubhai and, therefore, all the three fell down. Again accused Jilu Deha (accused no.1) tried to inflict another blow so he intervened and caught hold his hand. At that time another unknown person inflicted blow on both his hands which caused injuries on his small finger of right hand and middle finger of his left hand. So he was forced to let go accused no.1. Thereafter accused no.1 inflicted knife blows indiscriminately to his uncle. The victim called his uncle to try to get up and run away from the place but he again fell down. Both the accused had also chased the complainant and P.W.No.3 and thereafter he saw that both had left towards village Manavav. When they returned to the place of incident, they found uncle Shambhubhai dead. So P.W.No.3 stayed at the place of incident and complainant went to his house on motorcycle. He informed his father so his father reached to the place of incident with the tractor while the complainant went to dispensary at Chalala. However, as the doctor was not present there he went to Chalala Police Station and filed the complaint. Thereafter he was treated at dispensary. He had also produced motorcycle of his uncle. There were blood stains on the clutch and on the cap of the plug of the said motorcycle. He has also given description of the accused no.2. In his cross-examination, he has admitted that he was called at the police station to identify accused no.2 after 9-10 days of incident. Accused No.1 - Jilu Deha along with Accused No.2 - Dilu Khoda at that time was present in the police station. He had also seen accused no.2 and other persons and thereafter he was again called at Executive Magistrate Office for identification parade wherein he identified accused no.2 along with Jayraj Gorakh Kathi and Kasu Deha Dhadi and others. He has stated that at the time of incident accused no.2 had small mustache and beard whereas at the time of identification parade he was clean saved. At the time of his recording of his evidence accused no.2 had thick beard and mustache. He had stated that accused no.1 is of Manavav village which is 3 km away from his own town. The accused no.1 used to visit his town for purchasing Bidi and match-box. He has also admitted that he did not know how many brothers accused no.1 have. He admitted that he could not say how many time he had seen accused no.1. He has stated that he used to visit his town, other people were addressing him by his name and, therefore, he knew him. He cannot say when he had seen lastly the accused no.1 before the incident. He has stated that P.W.No.3 viz. Zaverbhai Laljibhai has not tried to save him and he was not assaulted by the accused.