CHAMPAKBHAI BHADRASINH CHAUDHARY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these appeals arise out of a common judgement and award dated 15.01.2008 passed by the Additional Sessions Judge, Vyara at Surat in Sessions Case No. 13 of 2007 whereby original accused no. 1 was convicted for the offence punishable under section 302 of Indian Penal Code and 135 of B.P. Act and sentenced to life imprisonment and fine of Rs. 1000/ -, in default, to undergo additional imprisonment for three months under section 302 of Indian Penal Code and ordered to pay fine of RS. 100/ - in default to undergo additional imprisonment for seven days under section 135 of B.P. Act. Original accused no. 1 was, however, acquitted of the offence under sections 323, 504, 506(2), 337 r/w section 114 of Indian Penal Code.

(2.) THE short facts of the prosecution case as narrated in the First Information Report being C.R. I. No. 163 of 2006 lodged with Vyara Police station is that on 28.10.2006 at around 06.15 pm, the accused persons went to the farm of the deceased and raised a dispute with regard to land in question and accused no. 1 gave axe blow on the back of the deceased thereby causing fatal injuries to which the deceased succumbed. The accused no. 2 caused injuries to witness Pinakin and Ankita by pelting stones by way of a catapult and the accused no. 3 went to the house of the complainant and threatened his mother of dire consequences.

(3.) MS . Sadhana Sagar, learned advocate appearing for the appellant has mainly contended that the trial court has committed a grave error by not properly appreciating the material available on record of the case. She submitted that the presence of complainant is doubtful and the story put forward by the other witnesses namely P.W. 3 and P.W. 4 is also improbable because the alleged incident took place at about 06.30 pm in the month of October which means that it was not natural daylight. She submitted that it was dark during that time and that presence of grass was not there and even the presence of bullock cart is not proved by the prosecution. She submitted that the original complainant was not present at the scene of offence.