SADABHAI SABURABHAI GARASIA PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) FEELING aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence imposed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 162/2005 by which the learned Judge has convicted the appellant herein -original accused No. 1 for the offence punishable under Section 302 of the Indian Penal Code with a fine of Rs. 250/ - and in default to undergo one year Simple Imprisonment, the appellant herein -original accused No. 1 has preferred the present Criminal Appeal.

(2.) ON 21/07/2005, P.S.I. of Ambaji Police Station lodged a Complaint with respect to having found the dead body of a unknown person killed by stone. Thereafter the Police Inspector of Ambaji Police Station, Shri Bhailal Patel, started the investigation. On inquiry, it was found that the dead body was of one Shri Mohanbhai. He started further investigation, prepared the panchnama of the place of the incident, inquest panchnama etc.. He also recorded the statement of the witnesses on 21/07/2005 to 23/07/2005. On 27/07/2005, all of a sudden he recorded the statement of one Shri Nodabhai Kanabhai, the so called alleged eye witness. Shri Nodabhai Kanabhai had stated in his statement that at 12:00 mid night he was alongwith the deceased Mohanbhai and the accused Shri Sadabhai Saburabhai Garasia Parmar and Shri Rameshbhai @ Ramiyo Tutabhai Aadivasi Gamar and all of them had taken liquor and all of a sudden there was quarrel between the accused and Mohanbhai and thereafter, after the quarrel he ran away from the place of the incident. On the basis of the statement of the said Shri Nodabhai Kanabhai, which was recorded on 27/07/2005 and on the basis of the last seen together of the accused with the deceased at about 12:00 mid night on 20 -21/07/2005 the Investigating Officer arrested both the accused. Thereafter, he discovered the clothes of accused No. 1 -Sadabhai Saburabhai Garasia Parmar having blood stains of the deceased and he also prepared the panchnama of discovery of his clothes. He also discovered the stone, which had blood stains of the deceased. He also prepared the panchnama of discovery of the stone/weapon used by accused No. 1. He also recorded the statement of the panchas. At this stage, it is required to be noted that after the arrest of original accused Nos. 1 and 2 further investigation was carried out by P.S.I, Shri S.M. Chauhan. Thereafter, after conclusion of the investigation, the Investigating Officer filed the chargesheet against both the accused for the offences punishable under Section 302 and Section 34 of the Indian Penal Code. The case was exclusively tried by the Court of Sessions. The learned Magistrate committed the case to the Sessions Court, Banaskantha at Palanpur, which was numbered as Sessions Case No. 162/2005. Both the accused pleaded not guilty and, therefore, they came to be tried by the learned Sessions Judge. The learned trial Court framed the charge against both the accused at Exh. 6 for the offence punishable under Section 302 and Section 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act. After conclusion of the evidence by the prosecution, further statement of both the accused came to be recorded under Section 313 of the Code of Criminal Procedure in which both of them denied having committed any offence.

(3.) THE present Criminal Appeal is opposed by Shri Himanshu Patel, learned APP appearing on behalf of the State. It is vehemently submitted by Shri Himanshu Patel, learned APP that in the facts and circumstances of the case, the learned Sessions Judge has not committed any error in holding the appellant herein -original accused No. 1 guilty for the offence punishable under Section 302 of the Indian Penal Code for the death of the deceased Shri Mohanbhai. It is further submitted by Shri Patel, learned APP that it is true that in the present case the case rests on circumstantial evidence, however, the prosecution has successfully established the chain of events leading to the conclusion that it was the appellant herein -original accused No. 1, who caused the injury on the deceased Mohanbhai. It is submitted that the presence of the appellant herein -original accused No. 1 was established by the prosecution at different times. It is submitted that first at 4:30 p.m. (PW 2) Prabhubhai Savabhai was examined at Exh.13. It is submitted that presence of original accused No. 1 alongwith the deceased was then established at about 6:00 p.m. by examining (PW 6) Babubhai Hansabhai at Exh.18. It is submitted that thereafter presence of original accused No. 1 has been established by the prosecution at 12:00 mid night by examining (PW 8) Nodabhai Kanabhai at Exh.20. It is submitted that the appellant herein -original accused No. 1 therefore was last seen together with the deceased at about 12:00 mid night on 20 -21/07/2005. It is submitted that as such (PW 8) Nodabhai Kanabhai is the eye witness of the incident and he had seen that there was quarrel between the deceased and the appellant herein -original accused No. 1. It is submitted that therefore the complete chain of events has been established by the prosecution. It is further submitted by Shri Patel, learned APP that even the panchnamas have been proved by the prosecution by examining the Investigating Officer. It is further submitted that the weapon (stone), which was discovered, was having the blood stains of the deceased. It is further submitted that even the clothes of original accused No. 1 were recovered by the Investigating Officer, which were having the blood stains of the deceased. It is submitted that therefore the only conclusion, which can be drawn and which is rightly drawn by the learned trial Court, is that the original accused No. 1 caused the injury on the deceased due to which immediately he succumbed to injury and died. It is submitted that the impugned judgment and order passed by the learned trial Court and the finding recorded holding the appellant herein -original accused No. 1 guilty for the offence punishable under Section 302 of the Indian Penal Code is on appreciation of evidence, which cannot be perverse and, therefore, it is requested to dismiss the present Criminal Appeal.