ANJUMANKHAN IMTIYAZKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed against the judgment and order dated judgment and order dated 23.9.2008 passed by learned Additional City Sessions Judge, City Sessions Court No. 8, Ahmedabad City, in Sessions Case No. 114 of 2006. By the impugned judgment, learned trial Judge has convicted the accused for the offence punishable under Sec. 302 of the Indian Penal Code (for short, "IPC") and sentenced him to suffer life imprisonment and fine of Rs. 75,000/ - and in default, simple imprisonment of six months was imposed. For offence under Sec. 135 (1) of the Bombay Police Act, the accused was awarded one month's imprisonment. The sentences were ordered to run concurrently. Being aggrieved by the impugned judgment, accused has preferred present appeal.

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

(3.) Mr. Y.S. Lakhani, learned Senior Advocate appearing with Mr. Raxit Dholakia for the appellant -original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. Mr. Lakhani submitted that the arrest of the accused in the present case is doubtful as it is made without any clue and the officers, who arrested him are not examined in the present case. He also submitted that the accused have explained the situation in their statements before PSI Chaudhari, however, he is not examined in the present case. He also submitted that accused had got Rs. 1,50,000/ - by selling gold chain and ring to the goldsmith and this fact was stated by Shri Barot, investigating officer. On the basis of the statement of IO, accused is acquitted of offence under Sec. 397, and since there was no motive for the accused to kill the deceased, accused is wrongly convicted by the trial Court. He also submitted that complaint was recorded by Shri Barot and he sent it for registration with a direction to return the papers to him for further investigation and papers were returned to him accordingly, therefore, the investigation is bias and perfunctory. He also submitted that in a single day all the panchnamas were drawn, statements of 20 witnesses were recorded, accused was produced before learned Magistrate, an application for remand seeking custody of the accused was preferred, Yadis were sent to FSL, Finger print bureau, fire -brigade and dog squad, and an application to insert Sec. 397 of IPC was preferred before learned Magistrate. He submitted that it is impossible to carry out all these procedures in a single day and it clearly shows that with a view to implicate the accused is implicated in a false case. He also submitted that though the muddamal knife was found after three days from the canal where the water was flowing, surprisingly, as per FSL report it was found blood stained. He further submitted that PW -2 admitted that accused is identified at the behest of the police. He also submitted that Executive Magistrate could not be cross -examined in view of his death, therefore, the Test Identification Parade losses its significance. He submitted that considering all these aspects of the matter, this appeal may be allowed by setting aside the impugned judgment convicting the accused.