MAHENDRA ALIAS MALIO BACHUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) <DJG>A.L.Dave, J.</DJG> This appeal arises out of a judgment and order- rendered by learned Additional City Sessions Judge, Court No. 27, Ahmedabad on June 11, 1997 in Sessions Case No. 209 of 1996. The appellant was tried by the Sessions Court and came to be convicted for an offence punishable under Section 302 of the Indian Penal Code and ordered to undergo rigorous imprisonment for life. The appellant also came to be convicted for an offence punishable under Section 135(1) read with Section 37(1) of the Bombay Police Act and came to be sentenced to undergo simple imprisonment for 1 year and to pay fine of Rs.200/- and in default, to undergo simple imprisonment for a period of 15 days. The sentences were ordered to run concurrently. Benefit of set off was ordered to be given to the accused/appellant.

(2.) The incident occurred on 11th May, 1996 at about 11-40 P.M. near the house of Gafurbhai situate at Narsinhji's Neliya in Gomtipur area of Ahmedabad. The appellant is alleged to have assaulted deceased Girish Mafaji Thakor with two guptis and committed his murder. The incident was witnessed by three witnesses namely (i) Sarojben Rajuji, (ii) Mukeshbhai Jivaji (iii) Maheshbhai Dashrathbhai. FIR was lodged by brother of the deceased Ganeshbhai Mafaji Thakor, who reached the spot immediately after the incident, on hearing shouts. The FIR was lodged with Gomtipur Police Station. The offence was registered and investigation started. The Investigating Officer having found 'sufficient material against the accused/ appellant, arrested him and produced him before the Magistrate and then, filed a chargesheet against him before the learned Metropolitan Magistrate. Since the offences charged against the accused/appellant were exclusively triable by the Court of Sessions, the case was committed by the learned Metropolitan Magistrate to the City Sessions Court. Charge was framed against the appellant at Ex. 1, The accused/appellant pleaded not guilty to the charge and came to be tried.

(3.) Learned Advocate Mr. Dipak R. Dave appearing for the appellant has taken us through the record and proceedings. According to Mr. Dave, the trial Court has erred in appreciating the evidence. Trial Court ought not to have placed reliance on evidence of so called eye-witnesses. In support of this contention, Mr. Dave has contended that the eye-witnesses are interested witnesses as they are friends of the deceased. He submitted that there has been a history of animosity and the trial Court ought to have given benefit of doubt to the accused considering the possibility of false implication. Mr. Dave submitted that the depositions of witnesses were parrot like and no weightage could have been given to such witnesses as they could be tutored witnesses. Mr. Dave, therefore, submitted that this appeal, may be allowed.