MANU GOLANBHAI KHACHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of these appeals original accused No. 4 as well as the State have challenged the judgment and order dated 19.12.2007 passed by the learned 2nd Fast Track Court Judge, Junagadh in Sessions Case No. 01 of 2005 whereby the trial court has convicted original accused No. 4 under sections 302 of Indian Penal Code and 135 of B.P. Act and ordered to undergo rigorous imprisonment for life & fine of Rs. 2000/- in default to undergo simple imprisonment for two months for offence under section 302 of Indian Penal Code and rigorous imprisonment for six months & fine of Rs. 500/- in default to undergo simple imprisonment for one month for offence under section 135 of B.P. Act. Criminal Appeal No. 2888 of 2008 has been preferred by original accused No. 4 against his conviction whereas Criminal Appeal No. 1039 of 2008 has been preferred by the State against the acquittal of original accused Nos. 1 to 3.

(2.) The short facts of the prosecution case are that on 27.10.2004, while the complainant was returning back to village from his farm, Badru Tapu passed through his way and shouted certain words "Taru puru kari nakhyu, tu ja" (your work has been finished, you go) which the complainant could not understand. Thereafter at around 04.30 pm, when the complainant reached marketplace, his maternal uncle's son informed him that his son - deceased had been murdered and he also informed the complainant that when he was returning from his farm he saw the accused persons with axe and that the axe of accused No. 2 was stained with blood. It is the case of the prosecution that the complainant went to the place where the dead body was lying and saw that his son was heavily bleeding. It is the prosecution case that at that time one Badru Ravat told him that he had seen the accused persons having a quarrel with the deceased and therefore the complainant lodged the complaint.

(3.) Ms. Rekha Kapadia, learned advocate appearing for the accused has contended that there is nothing on record to establish that original accused No. 4 is involved in this case except the complaint and the evidence of P.Ws. 8 & 10 read with evidence of P.W. 9 who has been ultimately declared hostile. She submitted that in absence of any eye witness in the present case, the trial court has erred in convicting original accused No. 4 on the basis of circumstantial evidence when the chain has not been completed by the prosecution. She has drawn the attention of this Court to the post mortem report and the evidence of the doctor who performed post mortem and submitted that from the same it is clear that the deceased had died due to injuries which could have been sustained by an axe. She submitted that it may be noted that the alleged threat even otherwise was not administered by original accused No. 4. She submitted that even if the evidence of P.W. 8 & 10 is taken into consideration, it is not proved beyond reasonable doubt as to which accused had given the alleged blow. She submitted that original accused No. 4 deserves to be granted benefit of doubt as there is no clear evidence against him. Ms. Kapadia has relied upon a decision of the Apex Court in the case of Pohalya Motya Valvi v. State of Maharashtra reported in , (1980) 1 SCC 530 and submitted that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence and that the circumstance must be of an incriminating character.