BICHHUBHAI RAMBHAI KATHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In an incident that had occurred on 19.7.1992 at about 19.15 hrs. at Hudco Society at Bagasara of Vadia taluka of Amreli district one Kalusha Abdula Fakir was allegedly done to death by Bichhubhai Rambhai Kathi (the present appellant) by inflicting multiple blows with knife (dagger) after giving abuses to the deceased. The incident was seen by number of persons. FIR was lodged by Dadibu Abdulsha Fakir (PW 10), who happens to be the mother of the deceased with Bagasara Police Station on the basis of which an offence was registered and the case was investigated. During the course of investigation, dying declaration of the deceased was recorded by Executive Magistrate. The statements of relevant witnesses were recorded and Panchnamas were drawn. At the conclusion of investigation, the investigating agency found that there was ample evidence to connect the accused with the offence and, therefore, chargesheet was filed before the JMFC, Bagasara, who in turn committed the case to the Court of Sessions at Amreli as the offences were exclusively triable by Sessions Court and it was registered as Sessions Case No. 107 of 1992 in Sessions Court at Amreli. The charge was framed against the accused appellant for the offences punishable under sections 504 and 302 of IPC and section 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and claimed to be tried.

(2.) After considering the evidence led by the prosecution, the Trial Court came to the conclusion that offences punishable under section 302 of IPC and section 135 of Bombay Police Act were duly proved by the prosecution and, therefore, convicted the accused appellant for the said two offences, whereas acquitted him of the offence punishable under section 405 of IPC. For the offences punishable under section 302 the Trial Court ordered the accused-appellant to undergo imprisonment for life and for the offences punishable under section 135 of the Bombay Police Act, the Trial Court sentenced him to undergo R.I. for six months. The sentences were ordered to run concurrently and benefit of set-off was given. The judgment and order was pronounced on 24.6.2002. The accused is aggrieved by the said judgment and order and, hence, this appeal.

(3.) Ms. Sudha Gangwar, learned Advocate for the appellant submitted that the prosecution evidence is not sufficient to show that there was an intention to kill on the part of the appellant. He had no motive either to commit murder of the deceased. The conviction is based mainly on dying declaration before the Executive Magistrate which is not reliable. She submitted that from the evidence of the doctor who gave an endorsement of the patient being conscious to give dying declaration, it is clear that he had given certificate without clinical examination of the deceased patient. He only looked at him and issued certificate about consciousness and fit state of mind of the patient. Dying declaration before the Executive Magistrate, therefore, would be rendered unreliable.