NEKRAM BABURAM PANDIT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are filed against common judgment and order dated 29.4.2011 passed by learned Additional Sessions Judge, Court No. 12, Ahmedabad City, in Sessions Case Nos. 91, 92 and 411 of 2009. The appellants were convicted for the offence punishable under Sec. 302 and 149 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life with fine of Rs. 1,000/ - each and, in default of payment of fine, further simple imprisonment for two months was imposed. All the accused were also held guilty for the offence punishable under Sec. 143 of IPC and ordered to undergo three months' rigorous imprisonment with a fine of Rs. 500/ - and, in default of payment of fine, further simple imprisonment of two months was imposed. For the offence punishable under Sec. 147 of IPC, the accused were ordered to undergo rigorous imprisonment for one year with a fine of Rs. 500/ - and, in default of payment of fine, further simple imprisonment of two months was imposed. All the accused, except accused No. 1, were also convicted for offence punishable under Sec. 148 of IPC, and ordered to undergo rigorous imprisonment for one year with a fine of Rs. 500/ - and, in default of payment of fine, further simple imprisonment of two months was imposed. All the sentences were ordered to run concurrently.

(2.) The case of the prosecution is that the complainant is the brother of the deceased. The complainant was watching television in the evening at about 8.30 p.m. and the deceased Gopal went to bring milk. When Gopal did not return after considerable time, his mother asked the complainant to go in search of him. When the complainant went in search of the deceased, he was talking with his friends Shakti and Jashwant. In the meantime, Nekram Pandit and his fellows Manoj Goswami, Deva Goswami, Kallu Goswami, Totad Goswami, Umesh and Tino were standing there armed with swords, Dhariya, Gupti and knife. Nekram instructed his fellows to kill the deceased. Manoj inflicted one sword blow to the deceased on his right jaw and ear. Deva Goswami inflicted dhariya blow on both the wrist of the deceased. Kallu Goswami inflicted Gupti blow on the right thigh of the deceased. Totad Pandit inflicted sword blows on the both buttocks of the deceased and Tino inflicted one knife blow on the private part of the deceased. Then the deceased was rushed to LG Hospital where the complainant reported the incident to the police. With these allegations, a complaint was lodged against the accused.

(3.) Mr. Ashish Dagli and Mr. Nirad Buch, learned advocates appearing for the appellants -original accused have taken us through the evidence on record and submitted that the impugned judgment and order is against the evidence on record. It is submitted that the prosecution has failed to prove its case against the accused. It is also submitted that a false case is filed against the accused and they are wrongly roped in and they are wrongly convicted by the trial Court. Learned advocates have taken us through the medical evidence and submitted that the injuries mentioned in the medical report are not caused by the weapons, which were allegedly used by the accused persons. We have been taken through the evidence of the complainant, PW -9 and Ghanshyambhai, PW -17 and it is contended that there are many contradictions in the evidence of these two witnesses. It is submitted that there is a discrepancy as regards the place where the incident had happened, therefore, evidence of these witnesses could not have been relied to convict the accused. It is further submitted that the story of the complainant going to verify as to why the deceased did not return is also got up and it can be said that the complainant is a chance witness. It is further submitted that though statements of independent witnesses were recorded, they were not examined by the prosecution in supports of its case. It is further submitted that the witnesses, who are examined, are either related to the deceased or they are connected with the business of the deceased or the complainant. It is submitted that so far as evidence of Ghanshyamsing Rathod, PW -17 is concerned, it cannot be relied as this witness has given name of one Mr. Ravi, however, this name is not mentioned in the FIR. This witness also do not state that Shakti was present. Not only that Ravi and Jashwant are not examined by the prosecution, while Shakti has turned hostile. It is also submitted that as per the FIR, the deceased was talking on his phone near Kajal Sweet Mart, however, an altogether a different place is stated by this witness. It is further submitted that the panchnama of the scene of offence does not refer to any pan shop in the vicinity, while it is stated by Ghanshyamsing that the distance between the pan shop and the scene of offence was 300 ft. It is also submitted that the sword and the clothes allegedly seized at the instance of the accused -Vivekchand had no blood stains. Though it is alleged that accused -Vivekchand had caused injuries on the head of the deceased with sword, however, PM report does not show any injury on the head of the deceased. So far as Pushpendrasinh @ Chhotu Dharampalsinh, PW -9, complainant is concerned, it is submitted that he appears to be a chance witness and his presence at the scene of offence was not natural. The complainant has admitted that normally his family members would go to bring milk, therefore, it is clear that the accused were not knowing that the deceased would come to take milk. It is submitted that the mother of the deceased, milk vendor, any other independent witness or anyone from Kajal Sweet Mart is not examined. It is submitted that the complainant has not deposed that Ghanshyamsing is an eye witness. No injury is received by the complainant, though he stated that he had intervened during the incident. It is further submitted that the accused were not named as assailants in the medical history. It is further submitted that the prosecution has failed to prove any motive for commission of offence. In view of above, it is submitted that the appellants ought to have been acquitted from the charges levelled against them and prayed that these appeals may be allowed by setting aside the impugned judgment.