HANUMAN TAPPA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 3.2.2007 passed by the learned Addl. Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 91/2006, whereby, the learned trial Judge has convicted the appellant under sec. 302 of IPC and sentenced to undergo R/I for life and to pay a fine of Rs. 1000/ -, in default, to undergo further imprisonment for six months, which is impugned in this appeal. The case of the prosecution is that the appellant was residing in the house of Ranabhai Karabhai at village Vibhapar in Bharvadvas along with Mahmad Nadimmiya Saifuddin Shaikh with other persons. That on 12.5.2006, at about 11.00 p.m. in the night, there was a quarrel between appellant and witness Bhimsha Nigrappa Dhangar and the appellant had given slap to Bhimsha, at that time, complainant Mahmad Nadimmiya Saifuddin Shaikh had intervened and favoured the witness Bhimsha and gave slap to the appellant. That keeping grudge in mind, the appellant had assaulted the father of the complainant deceased Nadimmiya Saifuddin Shaikh, who was sleeping in the terrace of the house, at about 1.00 Oclock to 2.30 Oclock in the night, with cement block and caused serious injury on the head of the deceased. Thereafter, the injured was first taken to Oswal Hospital and thereafter G.G. Hospital, Jamangar, where the doctor has declared him as dead. Thereafter the complaint was filed. The appellant accused came to be arraigned for committing the murder and after the investigation was complete, the charge -sheet was laid against the present appellant. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Atrocity Sessions Case No. 91/2006.

(2.) AFTER considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 3.2.2007 held the present appellant - original accused guilty of the charge levelled against him under sec. 302 of IPC, convicted and sentenced the appellant -accused, as stated above. We have heard learned advocate Ms. Tripathi with Ms. Krishna G. Raval for the present appellant and Ms CM Shah learned APP for the respondent -State.

(3.) MS Tripathi with Ms. Krishna G. Raval learned advocate appearing for the present appellant has fairly submitted that she could not claim clean acquittal or could not claim the benefit of doubt and tried to persuade the Court that conviction under section 302 of IPC may be modified and the present appellants may be convicted under sec. 304 Part -I of IPC. The learned advocate for the present appellant has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellant and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. Learned APP has further contended that this is a case of brutal murder, and therefore, no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed.