SURESH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal by appellant - original accused is directed against the judgment and order of conviction and sentence dated 10/08/2010 delivered by learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 2, Godhra in Sessions Case No. 180 of 2009 for the offence punishable under Section 302 of the Indian Penal Code (for brevity "IPC"), whereby the appellant - original accused was convicted and sentenced to undergo imprisonment for life with fine of Rs. 1,000/ -, in default, to undergo further period of three months of simple imprisonment.

(2.) THE case of the prosecution in brief is that on 14/05/2009 at about 7:30 p.m., deceased Rameshbhai Rathod, husband of complainant Sarojben Rathod, after completing his routine, was sitting on a raised platform (Otla) in the front portion of the house, whereas, the appellant - original accused, who is brother of the deceased and residing in joint family, was also sitting on a coat, in the front portion of the house. The complainant and her daughters were also present there. It is the case of the prosecution that since the appellant - accused did not work and used to drink liquor and altercate with the village people, the deceased admonished him and told him not to drink liquor, do some work and stop harassing village people. At that time, the mother -in -law of the complainant and mother of the appellant and the deceased also tried to persuade the appellant - original accused and hence, the deceased got excited and started beating her to which, the deceased intervened and while the deceased trying to set her free, the accused got excited and knocked down the deceased cross on the floor and assaulted with a Chock (lakda nu fachru) on his face and neck by repeated blows and on hearing hue and cry of family members, absconded from there. In consequence to the assault, the deceased got severe injuries and eventually succumbed to the injuries and accordingly, a complaint for the aforesaid offence was lodged before the police. Upon conclusion of investigation, since a prima facie case was found against the appellant, a Charge -sheet was filed against the present appellant - original accused in the Court.

(3.) THE learned advocate appearing for the appellant - original accused submitted that the learned trial Judge has not properly appreciated oral as well as documentary evidence produced on record and has erred in holding that the prosecution has proved the charge against the accused beyond reasonable doubt. He submitted that the prosecution has examined in all 14 witnesses, however, the learned trial Judge has not properly appreciated the evidence of the said witnesses and thereby, the finding recorded by the learned trial Judge that the prosecution has proved the charge against the accused by leading legal, reliable and impeachable evidence, is contrary to the evidence available on record. He submitted that there are material contradictions in the deposition, exh. 8 of complainant and eye -witness - Sarojben, who is the wife of the deceased. As per the deposition of this witness the deceased was assaulted with a Knife, whereas, the Charge framed at exh. 3 speaks about the deceased was assaulted by a Chock (lakda nu fachru). He further submitted that there also appears discrepancies and vital contradictions in the depositions of the prosecution witnesses as regards the place of incident and manner in which the offence has been committed. He further submitted that as per the prosecution case itself, at the time of the incident, the appellant - original accused was in intoxicated condition and thus, it is the case of unconscious and unfit state of mind of the accused and the learned trial Judge has failed to take into consideration the said aspect. He further drew attention of the Court on Charge, exh. 3 dated 16/12/2009 framed by the learned trial Judge and submitted that in the Charge it has been specifically mentioned that, "since the deceased admonished, you have, out of aggression, with intention to cause death of the deceased, brought a Chock (lakda nu fachru) from the house, knocked down the deceased cross on the floor and assaulted the deceased with said Chock on face in which the Chock had broken and then, from the sharp edge of the said Chock gave repeated blows and thereby severely injured the deceased and committed his murder....". He then submitted that, if the facts narrated in Charge is believed that the deceased was fell down cross on the floor in that case, the appellant - accused could not cause any injury on the face of the accused and this aspect has not been properly appreciated by the learned trial Judge, which requires consideration. He also submitted that so far as time of incident is concerned, all the witnesses have given different times and hence, their versions being contrary, are not believable. He further submitted that, if the deposition of complainant Sarojben Rameshbhai Rathod, exh. 8, is referred, there appears material contradictions regarding the article alleged to have been used in the crime as well as presence of the complainant at the time of incident, which creates dark clouds of doubt and hence, benefit of doubt should have been given to the appellant - original accused. Likewise, considering the depositions of Sonalben Rameshbhai Rathod, exh. 10 and Vanrajsinh Mohansinh, exh. 17, presence of Sonalben Rathod, daughter of the deceased, is also doubtful in view of vital contradictions in the same. He further submitted that it has come on record that the appellant - original accused was working as a driver and hence, the case of the prosecution that while the deceased admonished the appellant - original accused on the count that he was not doing any work, is not believable at all and this important aspect has also not been considered by the learned trial Judge. He, therefore, prayed that the impugned judgment of conviction and sentence is required to be quashed and set aside and the appellant is required to be acquitted.