MAKHMLSINH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Against the judgment and order rendered by the learned Addl. Sessions Judge, Fast Track Court No.1, Mehsana in Sessions Case No.62 of 2004 dated 30.10.2004 whereby, the appellant, original accused, has been convicted for the offence u/s.302 of Indian Penal Code (for short, "the IPC") and Section 135 of Bombay Police Act (for short, "the BP Act"), this appeal has been preferred. For conviction u/s.302 IPC, the appellant has been sentenced to undergo imprisonment for life and fine of Rs.10,000/and in default, imprisonment for a further period of one year and for conviction u/s.135 BP Act, he has been sentenced to undergo simple imprisonment for three months and fine of Rs.100/and in case of default, simple imprisonment for a further period of seven days.

(2.) The prosecution case, in brief, is that on 20.12.2003 at around 0830 hrs., the complainant, Rajnikanth @ Rasikbhai Virambhai Patel, left by foot for the busstand for going to Unjha. While he was waiting at the busstand along with other commuters, including one Padhiyar Jitubhai Premjibhai, who was known to him, he noticed that a man, aged somewhere between 30 35 years, hit said Padhiyar Jitubhai Premjibhai on the head with a cement brick. The assailant continued the assault by inflicting another 45 blows. In the said incident, injured Padhiyar Jitubhai sustained severe injuries and died on the spot. On noticing the brutal assault, the commuters and other passersby encircled the appellant - accused and assaulted him black and blue. Police was called and the injured - appellant was apprehended.

(3.) Mr. CB Dastoor learned counsel for the appellant submitted that the Court below has committed serious error in law and on facts in convicting the appellant for the alleged offence. He submitted that the appellant had sustained bodily injuries in the alleged incident but, the prosecution has not been able to explain the said aspect. It is not established from the record that deceased died at the hands of the appellant. Further, there are omissions and contradictions in the testimony of witnesses, which renders the ocular evidence led by the prosecution shaky and unreliable. He, therefore, submitted that the impugned judgment of conviction deserves to be quashed and set aside and the appellant deserves to be acquitted of the charges levelled against him.