JHALABHAI SOMABHAI GARASIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD learned advocate Mr. M.B. Rana for the appellant and learned APP Ms. Reeta Chandarana for the respondent - State.

(2.) THE appellant has challenged the legality and correctness of his conviction u/s. 307 of the IPC and section 135 of the Bombay Police Act by learned Addl. Sessions Judge, Fast Track Court, Palanpur in Sessions Case No. 60 of 2007, whereby he is sentenced to undergo imprisonment of 10 years and to pay fine of Rs. 3000/ -, and in default of payment of fine, further imprisonment for one year for the offence punishable u/s. 307 of the IPC and sentenced to undergo R.I. for six months and to pay fine of Rs. 500/ -, and in default of payment of fine, further imprisonment for one month for the offence punishable u/s. 135 of the B.P. Act by impugned judgment dated 4.11.2009. The story of prosecution case and history of investigation is well described in the impugned judgment as well as in pleading, and therefore, it is not reproduced. The jail record shows that appellant has not been released on bail while admitting this appeal, which was filed after delay of 726 days, but when the appellant was temporarily released on bail by order dated 13.6.2012 for 30 days, the appellant had absconded and was ultimately arrested by the police only after 1424 days i.e. after four years. Therefore, appellant has not undergone much imprisonment.

(3.) AT the outset, it becomes clear on scrutiny of the available evidence on record that except two witnesses, all the prosecution witnesses have supported the case of the prosecution; whereas, even two witnesses, who have tried to depose half -heartedly about their knowledge and activity during the trial, they have no option, but to disclose certain facts, which otherwise supports the case of the prosecution. As against that, there is no evidence to rebut the evidence by the prosecution, so as to prove even by way of preponderance of probabilities that either no incident has taken place at all as alleged by the prosecution or that there was no involvement of the appellant in such incident, wherein, victim has received grievous injuries. If it is so, then heavy burden rests upon the appellant to show that how and why the impugned judgment should be disturbed by converting the conviction into acquittal.