STATE OF GUJARAT Vs. JITENDRASINH

JUDGEMENT

(1.) This appeal under Sec. 378 (1) (3) of the Code of Criminal Procedure 1973 arise out of judgement and order of acquittal passed by learned Additional Sessions Judge, Fast Track Court No.3, Jamnagar in Sessions Case No.97 of 2001 dated 30.9.2005, by which, respondents are acquitted of offence under Sections 302, 397, 201 and 34 of Indian Penal Code.

(2.) In the backdrop of case of prosecution that on 2.4.2001, a telephonic vardhi received from Sarpanch Shri Jivrajbhai Dobaria of Khamata village that one dead body of unknown person was lying on the road of Khamata village. The police party went there at the scene and after drawing the inquest panchnama, the body was sent to the hospital for the postmortem report and accidental death No.10/2004 came to be registered at police station. During the course of inquiry under Sec. 174 of the Criminal Procedure, Code, 1973, the postmortem was obtained from the hospital, in which, cause of death was disclosed as asphyxia due to strangulation and hence, the complaint came to be lodged bearing C.R.No.16/2001 under Sec. 302 and 301 of the Indian Penal Code at Padhari Police Station and, thereafter, the investigation was commenced in that regard. During the course of investigation on 18.4.2004, Police Inspector Mr. Barot from P.C.B., Ahmedabad gave vardhi that the accused persons viz., Jitendra Vaghela and Kirit Vaghela were arrested at Ahmedabad and they have disclosed that the crime was committed by them at Khamata village and after obtaining transfer warrant police arrested the accused persons and TATA sumo a vehicle was also seized.

(3.) Learned APP for the appellant-State of Gujarat contends that the P.W.1 Jivrajbhai Dobaria, at Exh. 24 deposed in his testimony that on 2.4.2001 he was informed by one Polabhai Bhavanbhai that one dead body was lying on the road and hence after verifying the same the witness informed the padghari police station through his mobile phone and accordingly the police came over there and panchnama as well as proceedings were initiated. P.W.70-Dilipkumar Jayantilal at Exh.157 deposed that he was summoned by the police to be remained as panch witness on 18.4.2001 and this witness along with another witness went to Padghari Police Station on 19.4.2001 at about 2:30 p.m. Thereafter, they have seated in the jeep along with two accused persons and they reached at Khamata village and jeep was halted near the pool at the instance of two accused. Thereafter both the accused persons stated that they have thrown the victim from this bridge. The accused persons directed the vehicle to drive to Dhrol and reached at the Reliance Factory at Jamnagar and from there they directed the vehicle to drive towards the Khambhaliya and ultimately they reached at Devadiya Patiya i.e. 15 kilometers away from the Khambhaliya. Then the accused persons directed to drive the vehicle towards Devadiya Patiya and stated before them that they have gagged the victim by the wire and thereafter the body was thrown from the bridge. PW.72-Kishorsinh Karansinh at Exh.166 has deposed that in the year 2001 he was discharging the duty at Vadinar out post of the Khambhaliya Police Station as an unarmed police constable and deposed that on 31.3.2001 he received a phone call from the accused viz., Kiritsinh, wherein the accused person stated that he had come to the residence of his father-in-law Pratapsinh and therefore he had gone to the house of his father-in-law.