ABDULBHAI ALJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are arising out of the common judgment and order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Ahmedabad Rural in Sessions Case No.197 of 2009 on 14/03/2012, whereby the original accused No.1 appellant of Criminal Appeal No.513 of 2012 has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs.10,000/-, in default, to undergo six months simple imprisonment; whereas original accused Nos.2 and 3appellants of Criminal Appeal No.514 of 2012 have been convicted for the offence punishable under Sections 302 read with Section 114 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs.10,000/- each, in default, to undergo six months simple imprisonment.

(2.) The prosecution case in nutshell is that complainant Velabhai Bhurabhai Mundhava, resident of Dhandhuka, Dist: Ahmedabad gave a complaint on 15/05/2009 that he was residing at Dhandhuka and was doing agricultural business, as well as, business of driving. That on 15/05/2009 at about 11:15 hours, he was at the fourways of Dhandhuka Ranpur, at that time, his uncle's son Vinubhai Kukabhai Mundhva had some altercations with Abdulbhai Padanavala, Usman Pikapwala and Rasul Pikapwala and therefore, Gorabhai Makhabhai, Prakash Hindubhai and Bhojabhai Mepabhai Bukhari went towards the hotel and before they could ask anything to him, Usman and Rasulbhai had caught hold of Vinubhai, while Abdul, by taking out the knife from his waist gave a knife blow on the left side of chest of Vinubhai, on account of which he started shouting. However, all the three accused had flee away from the scene of offence leaving the deceased there.

(3.) Learned Counsel Mr. B. M. Gupata, Appearing for the original accused No.1 appellant of CR.A No.513 of 2012 has contended that prosecution has not proved its case beyond reasonable doubt. He has contended that all the important Panch Witnesses to the Panchnama drawn declared hostile and did not support the case of prosecution. He has further contended that panchnama of recovery of muddamal knife is not proved. He has further contended that considering the evidence of PW 9, original complainant, PW 10 and 11 eye witnesses, who had taken the deceased in the injured condition to the hospital from the scene of offence in the pick up van of PW 13, but no blood stains clothes of any of these witnesses were produced or seized by the I.O. which creates a serious doubt of the presence of three witnesses at the scene of offence. He has further contended that the vehicle in which the injured was taken to the hospital, description of which have been given by the three important witnesses in their evidence also creates a doubt and the I.O., has not collected any evidence about the vehicle in which the deceased was taken to hospital. He has further contended that so far as the medical evidence is concerned, the injury which was received by the deceased was proved to be fatal, but after receiving such injury, whether the injured was able to speak or not while taking him to the hospital, is also not coming from the evidence of the doctor and therefore, the socalled oral dying declaration of deceased before eyewitnesses is nothing but imaginary story created by the prosecution. He has lastly contended that the prosecution has miserably failed to prove that in which vehicle the injured was taken to RMS Hospital and when the story of vehicle in which deceased was taken to hospital, is not proved by prosecution then in that circumstances the alleged oral dying declaration cannot be believed for want of legal evidence. He has submitted that the appeal may be allowed and the appellant may be acquitted of the charges.