MIR KARIM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order of conviction dated 24.12.2008 passed by the learned Third Additional Sessions Judge, Mehsana, in Sessions Case No.68 of 2008. The said case was registered against the appellant original accused for the offences punishable under Sections 397, 394 and 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act. By the impugned judgment and order the appellant is acquitted for the offence under Section 397 of the Indian Penal Code and under Section 135 of the Bombay Police Act. However, the appellant is convicted for the offence under Section 394 of the Indian Penal Code and sentenced to undergo R.I. of 10 years and fine a fine of Rs.1,000/, in default, R.I. for one month. The appellant is also convicted under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs.1,000/, in default, R.I. for one month for the offence punishable under Section 302 of the Indian Penal Code. All the sentences are ordered to run concurrently.

(2.) According to the prosecution case, the complainant's son Kishan and daughter Gangaben went to the outskirts of Ubakhal village for grazing sheep and goats at about 10 o'clock in the morning on 08.01.2008 and he was at home. As Kishan and Ganga did not return along with sheep and goats even after 04 o'clock in the evening, he went to the surrounding areas on the outskirts of Ubakhal village to make inquiry at about 05 o'clock and searched there, but he could not trace children or sheep and goats. Therefore, he continued search. As it was daylight at about quarter to seven in the next morning, he went to Mandali (Vihar) outskirts situated adjoining Ubakhal outskirt for searching his children. When both Vaghari Davjibhai's wife Shantaben and his daughter, residents of Ubakhal, went to the outskirts of Mandali for grazing their goats, they heard shouts "Save, Save" as both his daughter Gangaben and Kishan were shouting on the other side of railway line towards Mandali, but they believed that children are shouting flying kites on the occasion of Uttarayan. As complainant was informed in the early morning that children were on the outskirt of Mandali, as complainant searched on the outskirts of Mandali, dead body of his daughter Gangaben was found from the mustard field belonging to Patel Vishnubhai Dahyalal and dead body of his son Kishan was lying in the field cultivated with Nilgiri, belonging to Patel Babubhai Narotamdas. Therefore, he immediately informed in Vasai Police Station through phone and police came to the place of occurrence and carried out the procedure. His nephew Vanzara Popatji told him two days back that Mir Karim @ Kana Ghusabhai, resident of Rathod Paldi, had been stating for the last three or four days that he wanted to purchase sheep and goats, and he has been wandering with Kishan and Ganga at pasture land of Ubakhal for two days. The said Karim @ Kana Ghusabhai and his accomplices went to the place, where Kishan and Ganga took sheep and goats, in the morning itself for taking sheep and goats with them. They have committed murders of both children by causing injuries in the heads and strangulating in the afternoon at the aforesaid place on the outskirt of Mandali, from where the dead bodies have been found. Therefore, on these facts complaint came to be lodged against the accused person and other unknown persons. As complainant gave the aforesaid detailed complaint before Police Inspector of Vasai, the complaint was accordingly recorded. On the basis of the same, offence was registered vide C.R. No.I5 of 2008 u/s 302, 120B, 34 of the I.P.C. with Vasai Police Station on 09.01.2008. As such fact was revealed during investigation that both deceased children went to graze about 50 sheep and goats where accused Mir Karim @ Kano Ghusabhai and his accomplices looted goats and sheep from the possession of both children and caused death of both children by strangulation, and took goats and sheep, the offence u/s 394, 397 of the I.P.C. was being constituted, report was given to add section 394 and 397 of the I.P.C. and accordingly, offence was registered. Police Inspector Mr. M.D. Solanki and P.S.I. Mr. M.N. Harsh conducted further investigation and accordingly, statements of necessary witnesses were taken for investigation. Mamlatdar was informed for filling inquest. P.M. of dead bodies were got performed. Panchnama of place of occurrence was drawn. The accused was arrested and medical treatment of accused was got done. The identification parade of accused was conducted. The adhivato (a kind of cloth) worn by accused was seized and other necessary panchnamas were drawn and muddamal seized was forwarded to F.S.L., Ahmedabad for examination. The charge sheet was filed against accused in the court of learned Judicial Magistrate of Vijapur. The said charge sheet was registered vide Criminal Case No. 399/08.

(3.) Thereafter, charge Ex.4 came to be framed and explained to the accused person, to which he pleaded not guilty and claimed to be tried.