RAJENDRASINH @ BHAILAL ISHUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dtd. 21/3/2011 passed by learned Additional Sessions and Fast Track Judge, Gandhinagar, in Special Atrocity Case No.11 of 2008, whereby all the accused were convicted for offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code (for short, IPC) and ordered to undergo rigorous imprisonment for life and to pay fine of Rs.5,000.00 and, in default of payment of fine, accused were ordered to undergo further rigorous imprisonment for six months. Accused No.1 was also convicted for the offence punishable under Sec. 135 of the Bombay Police Act and ordered to undergo simple imprisonment for six months and to pay fine of Rs.100.00 and, in default of payment of fine, accused no.1 was ordered to undergo further simple imprisonment for seven days. However, the accused were acquitted for the offence under the Atrocities Act. Feeling aggrieved by the impugned judgment, the accused have preferred present appeal before this Court.

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

(3.) Mr.Yogesh Lakhani, learned Senior Advocate for the appellant of Criminal Appeal No.598 of 2011-original accused no.1 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that the incident has happened in the spur of the moment and there was no pre-planning on the part of the accused. He further submitted that for the incident in question, cross-complaints were filed. He submitted that the accused was not the aggressor and he acted in exercise of his right to self-defence and it can be said that he has acceded his right of self-defence. He further submitted that it is alleged by the prosecution that the deceased had called his brother by making a telephone call at the time of the incident, however, no call details in this regard are produced on record. He further submitted that, as per the case of the prosecution, the complainant was at a distance of 1 km. and he reached the scene of offence immediately, but if we look at the evidence of the doctor, it is clear that the deceased was lying in injured condition at least for five to ten minutes, therefore, it seems that the evidence of the complainant is not reliable. He further submitted that the story of the Gunjan and Ravi taking the deceased to the hospital is also not believable, as there were no blood stains on the way to the hospital from the scene of offence and the clothes of these witnesses were also not blood stained. He further submitted that considering the evidence on record, since the deceased was lying on the road for ten minutes, it clearly established that there was no one present along with him and it cannot be said that the injuries caused to the deceased were caused by the accused. He further submitted that even the blood sample of the accused was not taken for analysis and this fact is admitted by the investigating officer in his deposition. He further submitted that though the incident had occurred at a public place, no independent witnesses have been examined by the prosecution in support of its case. He further submitted that the witnesses examined by the prosecution are interested witnesses, as they are either related or having intimacy with the deceased or the complainant. He submitted that considering all these aspects, accused no.1 is required to be acquitted by setting aside the impugned judgment.