DEVAYAT KANABHAI DER AHIR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is at the instance of a convicted person and is directed against the order of conviction and sentence dated 29 th July 2008 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Gondal, Camp Jetpur, in Sessions Case No. 51 of 2008 by which the learned Sessions Judge convicted the appellant for the offence punishable under section 302 of the Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs.15,000/-; in default of payment of such fine, a further imprisonment for one year was imposed. The learned Sessions Judge also convicted the appellant for the offence punishable under Section 135 of the Bombay Police Act and sentenced him to rigorous imprisonment for 4 months and a fine of Rs.500/-; in default of payment of such fine, a further simple imprisonment for one month was ordered to be undergone. The learned Single Judge further directed that out of the amount of fine for the offence punishable under Section 302 of the Indian Penal Code, a sum of Rs.10,000/- should be payable to Puriben Shardulbhai, the wife of the deceased Shardulbhai, as compensation under section 357 of the Criminal Procedure Code.

(2.) THE following charge was framed against the appellant:

(3.) MR . Kinariwala, the learned advocate appearing on behalf of the appellant, vehemently criticized the order of the learned Sessions Judge by pointing out that the panch witnesses for recovery of the weapon having been declared hostile, the learned Sessions Judge should not have relied upon the evidence of recovery of the weapon given by the investigating officer. According to Mr. Kinariwala, if the discovery of the weapon is disbelieved, there was no justification of involving the appellant in the offence by relying upon the deposition of the father and the wife of the deceased. According to Mr. Kinariwala, the evidence given by those two witnesses were inconsistent, and at the same time, they were interested witnesses. Mr. Kinariwala, therefore, prayed for setting aside the order of conviction imposed by the learned Sessions Judge.