LAKHA SAGARAM BHARVAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dated 21.1.2000 passed by learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, in Sessions Case No. 84 of 1993, whereby all the accused persons are held guilty for the offences punishable under Ss. 147, 148 and 302 read with Sec. 149 of the Indian Penal Code (for short, "IPC"). The accused were ordered to undergo rigorous imprisonment for a period of six months for offence punishable under Sec. 147 of IPC, one year's rigorous imprisonment was awarded for offence under Sec. 148 of IPC and for offence under Sec. 302 read with Sec. 149 of IPC, the accused were ordered to undergo imprisonment for life. The accused were also ordered to pay fine of Rs. 100/ - and in default of payment of fine, further rigorous imprisonment of 15 days was imposed. Feeling aggrieved by the impugned judgment, accused Nos. 1 to 4 have preferred Criminal Appeal No. 139 of 2000, while Criminal Appeal No. 110 of 2000 is preferred by accused No. 6. Criminal Appeal No. 246 of 2000 was preferred by accused No. 5, however, since accused No. 5 has expired on 2.2.2005 said appeal is disposed of as having abated vide order dated 22.10.2013.

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

(3.) Mr. Nitin Amin, learned advocate for accused Nos. 1 to 4 (Appellants in Criminal Appeal No. 139 of 2000) has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that PW -5, Laxmanbhai is shown as an eye -witness, however, there are many contradictions in the evidence of this witness. He submitted that this witness has not referred to accused No. 4 in his evidence while in the FIR name of accused No. 3 was not given. In the FIR, there is no reference that accused Nos. 1 to 4 were having any weapon. In the telephone vardhi, names of the appellants were not given as assailants. He submitted that first Vardhi, FIR and evidence of PW -5 are contradictory to each other. PW -5 also stated that accused Nos. 1 to 3 were giving kick and fist blows to the deceased while other accused were having sticks in their hands but they had not inflicted any blow. He also stated that during the scuffle, clothes of the deceased were torn, however, as per Exh.51, it is clear that the clothes of the deceased were not torn. Therefore, it creates doubt as to whether PW -5 was eyewitness to the incident or not and his evidence cannot be relied to convict the accused persons. He also submitted that in view of the medical evidence, it is clear that there was only one injury on the person of the deceased and there were no abrasion or bruises, therefore, even if the case of the prosecution is believed, present appellants -accused Nos. 1 to 4 cannot be held guilty of any offence. He also submitted that since there was only one injury to the deceased, it can be said that no other accused person has caused any injury to the deceased. He has also taken us through the evidence of Dr. Surendra Mahendrakumar Sharma. This witness has specifically admitted that, except one head injury, no other injury was found on the dead body of the deceased. This witness has stated that if the deceased would have been beaten by five to six persons, there would have been external injuries on his body, however, no such external injuries were found on the body of the deceased. He, therefore, prays to allow this appeal by acquitting the accused of all the offences by setting aside the impugned judgment.