HINDUDABHAI ASHABHAI GARASIA PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is at the instance of three convicted persons and is directed against an order dated 14th May 2007 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Palanpur, District Banaskantha in Sessions Case No. 128 of 2005 thereby holding the appellants guilty of offences punishable under sections 302 read with section 149 of the Indian Penal Code as also sections 147 and 148 of the Indian Penal Code. By the said order, the appellants were ordered to undergo life imprisonment for the offences punishable under sections 302 read with section 149 of the Indian Penal Code and also to pay fine of Rs. 10,000/ - each, with a further stipulation that in default of payment of the fine, they would undergo simple imprisonment for six months. No separate sentence was awarded for the offences punishable under sections 147 and 148 of the Indian Penal Code. The following charge was framed by the learned Sessions Judge against the appellants: -

(2.) THE case made out by the prosecution is that on 13th May 2005, one Jetabhai Virambhai Garasiya filed a complaint before Ambaji Police Station informing that the deceased Somira Virambhai, the brother of the complainant, was working as a guard in Ambaji Mata Temple. The deceased Somira was married to Saburiben, the sister of the accused persons, who died about six years back by committing suicide. Therefore, the accused were demanding Chadotaru [a social custom in which demand of money is made from the opposite party for unnatural death] from the deceased as they wanted to take revenge socially. On the day of the incident, i.e. 13th May 2005, the accused persons formed an illegal assembly at Ambaji armed with deadly weapons in furtherance of their alleged intention to kill Samira and as Somira passed on the foot path near the wall of Diwali Gurubhavan Inn, the accused persons assaulted him with weapons like knife and stick and committed murder of Somira.

(3.) MS . Chetna Shah, the learned Additional Public Prosecutor appearing on behalf of the prosecution, on the other hand, has supported the judgment impugned and contended that the learned Sessions Judge, who had an occasion to see the demeanour of the witnesses having believed the evidence adduced by PW. No. 4 and 5, the two eyewitnesses, this Court should not interfere with the findings based on appreciation of oral evidence. Ms. Shah contends that the existence of the custom of Chadotaru has not been denied by the accused persons and no such suggestion had even been given to the prosecution witnesses that such custom does not exist. Ms. Shah further contends that apart from the version of the two eyewitnesses, viz. PW. No. 4 and 5, the learned Sessions Judge also took into consideration the evidence given by the son of the deceased against his maternal uncle and also the fact that the brother of the accused, on the very date of the incident, seen the accused persons in the vicinity of the place of incident and even cautioned the deceased. At any rate, according to Ms. Shah, the learned Sessions Judge, having taken into consideration the entire evidence on record as well as the evidence given by the investigating officer regarding the course of investigation, we should not interfere with the just decision arrived at by the learned Sessions Judge. Ms. Shah further contends that the other two accused persons are still at large and such fact also indicates that the case alleged by the prosecution was a genuine one. Ms. Shah, therefore, prays for dismissal of the appeal.