DITALIABHAI CHOTIYABHAI DHANUK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal arises out of judgment and order rendered by Sessions Court, Vadodara at Chhota-Udepur in Sessions Case No.45 of 2005 on 15.06.2006 convicting the appellant for the murder of Kurmabhai Thavariabhai by inflicting 'Paliya' blows on 19.05.2005 in the filed of Makadiabhai situated in the outskirts of village Timla.

(2.) THE brief facts of the case are that the deceased was staying with Pangaliben, who happens to be maternal aunt of deceased Kurmabhai. As the appellant could not pay the customary amount, the lady was taken back by her brother and the deceased had accompanied them. The appellant was, therefore, aggrieved against him. The appellant keeping that in mind, attacked the deceased with a 'Paliya' at about 21.00 hours on 19.05.2005 when the deceased was passing by the field of Makadiabhai. The appellant inflicted as many as four blows with 'Paliya' and caused his death. FIR was lodged in this context with Rangpur Police Station, on the basis of which, the offence was registered and investigated. At the end of the investigation, the police filed charge-sheet in the Court of Judicial Magistrate, First Class, Chhota-Udepur, who, in turn, committed the case to the Court of Sessions and Sessions Case No.45 of 2005 came to be registered.

(3.) MR . Darji submitted that the trial Court has committed an error in appreciation of evidence by placing undue reliance on evidence of Chaturiben. He submitted that the incident occurred during night in a filed where there was no electricity and therefore, Chaturiben could not have identified the assailants as she claims to have done. She is the sole witness to the incident. The other two witnesses viz., Jaglabhai, Exh.9 and Bhaglabhai, Exh.13, who were also projected as eye-witnesses, have not supported the prosecution case. The trial Court ought to have held that the prosecution failed to prove the case against the accused � appellant. The judgment, therefore, may be set aside, so also the conviction.