VIBHO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dated 26.04.2011 passed by learned Additional Sessions Judge, Court No. 5, Bhuj -Kutch in Sessions Case No. 22 of 2009 and another judgment and order dated 03.01.2013 passed by learned 6th Additional Sessions Judge, Bhuj -Kutch, in Sessions Case No. 18 of 2012, whereby the accused were held guilty for offence punishable under Sec. 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life and to pay fine and, in default of payment of fine, accused were ordered to undergo simple imprisonment for two months. The accused were also convicted for the offence punishable under Sec. 506(2) of IPC, however, no separate sentence was imposed for this offence. Feeling aggrieved by the impugned judgments, the accused have preferred present appeals before this Court. Though these appeals are arising out of two different judgments of the trial Court, they are taking up for hearing together as the incident in question is same.

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

(3.) Mr. Kirtidev Dave, learned advocate for the appellants -original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He also submitted that from the FIR and dying declaration, it is clear that since one of the accused had got married with the daughter of the complainant, they had a grudge against the accused persons and, therefore, they are wrongly implicated in the present offence. He submitted that both the accused are father and son and trial against the son was conducted prior in point of time and the evidence recorded therein is relied on by the trial Court to convict another accused also and he has not been given an opportunity to defend himself. He further contended that there was no motive on the part of the accused persons to commit murder. He further submitted that it has come on record that accused Vibho @ Vipul had strained relations with his father Nagjibhai, therefore, presence of both the accused at the same place to commit the offence is neither plausible nor probable. He further submitted that only interested witnesses have been examined by the prosecution, therefore, their evidence could not have been relied to convict the accused persons. He further contended that it has come on record that the incident took place on 28.02.2009 and the deceased died on 3.3.2009 i.e. four days after the incident and the cause of death as stated by the doctor is septicemic shock due to extensive burns. He, therefore, submitted that the learned trial Judge has committed an error in convicting the accused for offence under Sec. 302 of IPC and, at the most, the accused could be held guilty for offence punishable under Sec. 304, Part -II of IPC. In support of his submission, he has relied upon the decision of the Honourable Apex Court in Maniben v/s. State of Gujarat [ : AIR 2010 SC 1261]. In view of these, he prayed that these appeals may be allowed.