PRATAPBHAI MORARBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellant herein has challenged the judgment and order of his conviction and sentence by learned Additional Sessions Judge of Special Court No.16 of Ahmedabad City, whereby he is convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of 5 years and fine of Rs.2000/- with condition that if fine is not paid, he has to undergo further simple imprisonment of 3 months. Such impugned judgment in Sessions Case No. 1281 of 2004 is dated 05.01.2007. The jail report dated 11.02.2015, which is on record, confirms that appellant has been arrested on 21.12.2003 in two different offences i.e. one under Section 302 of the Indian Penal Code, for which he was convicted for life imprisonment by judgment and order dated 15.03.2005 in Sessions Case No. 164 of 2004 and second in the present case. Therefore, practically appellant has already undergone the imprisonment of 5 years and since he has not deposited the fine, he has completed further 3 months of imprisonment also, since he is in custody for last more than 10 years. However, jail report also confirms that punishment in both the cases are to be undergone separately and, therefore, if appellant can succeed in this appeal, he could be released from the custody on completion of sentence awarded in another case, which is for life imprisonment and appeal being Criminal Appeal No. 7115 of 2006 against such sentence is also dismissed by judgment and order dated 09.08.2007. In both the cases, appellant is entitled for set off for the period of custody during trial. So far as present case is concerned is of only one month and seventeen days.

(2.) However, when appellant is keen to see that whether he could be acquitted in such appeal or not, we have to examine the R & P, so as to verify the legality of the impugned judgment.

(3.) I have considered the rival submissions and perused the R & P, which includes deposition of as many as 12 witnesses and other documentary evidence produced and proved by the prosecution during trial.