DILIPBHAI MOTIBHAI BHOI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is preferred from the judgment in Sessions Case No.203 of 1995 passed on 22071997 by learned Additional Sessions Judge (Panchmahals), Godhra, whereby appellant Dilip Motibhai Bhoi was convicted for the offence punishable under Section 302 of Indian Penal Code, 1860 ('IPC' for sake of brevity), and sentenced to life imprisonment with fine of Rs.1,000/ with default imprisonment for one month. He was also convicted for the offence under Section 324 of IPC, and sentenced to 2 years simple imprisonment. In respect of the charge for the offence under Section 307 of IPC, he was acquitted.

(2.) THE incident occurred on 23.7.1995 at around 10:30 p.m. near area known as "Khadia Lake" at Umarvada Town wherein one Mahesh succumbed to the injuries inflicted by the appellant. The incident was preceded by a scuffle between the accused and the appellant, over return of amount of Rs.700 which the deceased had borrowed from the appellant. The prosecution case was based on the complaint (Exh.20) lodged by Rayjibhai, the elder brother of the deceased, according to which, when he had gone to Khadia Lake after his meals, he noticed that the victim and the accusedappellant were engaged in a scuffle over payment of money.. The deceased was asking the appellant to return the amount but the other was not budging. The complainant separated both from fighting. Other persons were also present at the place. Thereafterr, the appellant went back to his house and after some time returned back and suddenly assaulted the victim with a weapon he had carried, which was a spear without its handle, and injured his brother on the left side of his chest. It was stated in the complaint that until return of the accusedappellant, all the persons had been standing near an electricity pole situated near the house of the appellant, and at that place, the assault was committed.

(3.) TAKING the court through the evidence on record, learned advocate for the appellant submitted that on the evidence on record, no offence punishable under Section 302 of IPC was made out. He submitted that evidence of the two eye witnesses did not inspire confidence due to its weakness in several respects. The conduct of the complainant did not make him a reliable witness. It was submitted that the prosecution evidence was unreliable and insufficient as regards the place and the manner and circumstance of assault on the victim. On the other hand, learned assistant public prosecutor supported the conviction recorded by the trial court. .