GADHVI BHARATDAN SHIVDAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this Appeal, accused Gadhvi Bharatdan Shivdan, has challenged the judgment and order dated 2.01.2006, passed by Sessions Judge, Bhavnagar, in Sessions Case No. 144 of 2000, by which the appellant has been convicted and is sentenced for imprisonment for life and fine of Rs.5,000/-, and in default, simple imprisonment for two years for the offence under Section 302 of the Indian Penal Code as well as sentenced for simple imprisonment for one month for the offence under Section 135 of the Bombay Police Act.

(2.) Brief facts in nutshell of the case are as under:

(3.) Learned Advocate Mr. Ashish M. Dagli, appearing for the appellant, has assailed the judgment and conviction of the appellant on the ground that the sole eye witness to the incident i.e. Vallabhbhai Odhavjibhai Bareya, PW-2, Exhibit-12, is a chance witness and his conduct of not taking the deceased to the hospital and visiting the complainant to inform him about the incident, is unnatural and, therefore, he cannot be treated as an eye witness and the learned Trial Judge ought to have discarded his evidence on this ground alone. He further submitted that except Vallabhbhai Odhavjibhai Bareya, no eye witnesses had supported the case of the prosecution and, therefore, in absence of other witnesses to the incident, the appellant is required to be acquitted from the charges of Section 302 of the IPC read with Section 135 of the Bombay Police Act. In support of his submission, he has also taken us through the deposition of Dr. Jagsaral Ramdhir Srivastava, PW-10 Exhibit-28, who performed the postmortem and submitted that the injury sustained by the deceased must be more than of 12 hours old as rigor mortis were present all over the body when the postmortem was carried out at 2'O clock in the afternoon. Therefor, the incident must not have taken at 7.00 a.m. as alleged by the prosecution. He further submitted that looking to the injuries, the same was not possible by the knife, which has been alleged to have been used in the incident. He has submitted that no bloodstains were found on the knife.