LAXMANBHAI KHODABHAI SENVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal has been filed by the appellant under Sec. 374 of the Code of Criminal Procedure against the judgement and order dtd. 7/10/2014 passed by the learned 2nd Additional Sessions Judge, Kheda @ Nadiad (hereinafter referred to as the 'learned trial court') in Sessions Case No.36 of 2014. The appellant is referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity.

(2.) The brief facts giving rise to the present appeal are as under.

(3.) Being aggrieved and dissatisfied with the judgement and order of conviction, the appellant has filed the present appeal mainly stating that the impugned judgement and order of conviction is arbitrary, erroneous in law and contrary to the facts and circumstances of the case and evidence on record and the findings arrived at and assigned by the learned trial court, are erroneous and the same deserves to be quashed in the peculiar facts and circumstances of the case and evidence on record. The learned trial Court has not considered that there are no eye witnesses who have seen the offence being committed and the prosecution has failed to prove that there were any fingerprints on the weapons recovered by the Investigating Officer. The complaint has been given by the accused himself and is not to be considered as evidence and cannot be used as evidence against the maker at the trial if he himself becomes an accused as a confession before a police officer is not admissible in law. Hence, there is no FIR which deals with the motive for commission of the crime, which can be legally looked into and the trial court ought not to have given much importance to the evidence of the complaint. The recovery panchnama has not been proved as all the panch witnesses have turned hostile and the recovery panchnama of the alleged muddamal, namely the chopper, and the knife have not been prepared as stated by the prosecution, but are concocted. Moreover, though blood stains have been found on the clothes of the appellant, and there is no material evidence as no blood group has been identified. That the learned trial Court has erred in convicting the appellant under Sec. 302 of the Indian Penal Code, and hence the impugned judgement and order must be quashed and set aside.