BHARATBHAI NANABHAI HUDAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these appeals are preferred against the judgment and order dated 05.07.2011 passed by learned Sessions Judge, Amreli, in Sessions Case No. 43 of 2010, whereby the appellants herein -original accused Nos. 1 to 5 were convicted for the offences punishable under Sec. 120 -B of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life with a fine of Rs. 5,000/ -, and, in default of payment of fine, further rigorous imprisonment for one year was imposed. Accused Nos. 1 to 4 were also convicted for the offence punishable under Sec. 302 of IPC and ordered to undergo imprisonment for life with a fine of Rs. 5,000/ -, and, in default of payment of fine, further rigorous imprisonment for one year was imposed. The accused were also directed to pay an amount of Rs. 50,000/ - each towards compensation to the father of the deceased. The accused were acquitted from the charge of offence punishable under Sec. 135 of the Bombay Police Act. All the sentences were ordered to run concurrently. From the record, it appears that since accused No. 2 had preferred two appeals before this Court, Criminal Appeal No. 1904 of 2011 was disposed of vide order dated 19.1.2016 so far as accused No. 2 is concerned.

(2.) The complainant is the brother of the deceased. It is the case of the prosecution that on 18.2.2010 at about 9 a.m., the original informant had left his house and gone to Village -Dadma at the shop of Lalbhai and returned at 6.30 p.m. and the deceased Ramesh came for dinner at about 8.30 p.m.. At 9.45 p.m. when the original informant and his elder brother Hasmukhbhai and their father were present in the house, some persons, who were passing therefrom told that some scuffle had taken place in Sardar Chawk. It is further alleged that the deceased Rameshbhai informed the original informant on telephone that he had a scuffle with Shabbir @ Gadba, original accused No. 1. Thereafter, original informant went to Sardar Chawk and many persons had gathered near Ashapura Pan Shop and his brother Ramesh was lying there in a profusely bleeding condition. It is alleged that the original informant had seen four persons on two motor cycles running away from the place of incident. It is further alleged that the deceased had lost Rs. 4 Lacs in cricket betting to accused No. 5 and, therefore, with a view to recover the said amount, original accused Nos. 1 to 4 had come on the motor cycles armed with weapons. It is alleged that accused No. 1 was holding sword and he caused injuries in the head, stomach and hand of the deceased. It is further alleged that accused No. 2 was also holding sword and he caused injuries on the head, stomach and chest of the deceased. It is also alleged that accused No. 3 had caught hold of the deceased so that the other accused can cause injuries to him. It is alleged that accused No. 4 had caused injuries to the deceased with baseball bat and the deceased succumbed to such injuries. So far as accused No. 5 is concerned, it is alleged that since the deceased had lost money in cricket betting, he sent accused Nos. 1 to 4 to recover the same and if he do not pay then asked them to kill him. A complaint was lodged against the accused persons by the complainant in this regard.

(3.) Mr. N.D. Nanavaty, learned Senior Advocate appearing for accused No. 5 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against accused No. 5. He submitted that practically each and every witness of the prosecution side has turned hostile and not supported the case of the prosecution. He has taken us through the evidence of Hareshbhai Maganbhai Gondaliya, PW -1, Hasmukhbhai Maganbhai Gondaliya, PW -2 and contended that it cannot be said that PW -1 and PW -2 are the eye witness to the incident. He further submitted that as per the evidence of these witnesses, names of the accused were given to them by one Sabbir, when said Sabbir went to collect the amount by claiming that he has been asked to do it by accused No. 5. He further submitted that there is nothing adverse against accused No. 5 in the evidence of these witnesses. In the cross -examination of PW -1, it is stated that he was having previous knowledge that this dispute is with regard to the money of accused No. 5 and no talk with regard to the same had taken place on the date of the incident. He has also taken us through the evidence of Investigating Officer, Maganbhai Khodabhai Parmar, PW -27 and contended that nothing is proved against accused No. 5 even by the evidence of this witness. He submitted that this witness has stated in his deposition that at the time of addition of Sec. 120 -B no investigation was made as to whom the money was belonging and no proof is found in that regard. He also submitted that no proof is found against accused No. 5. He further submitted that PW -1 and PW -2 being the brothers of the deceased have supported the case of the prosecution and no independent witnesses were examined in support of the prosecution case. He further submitted that no call details of accused No. 5 were produced on record in support of the allegations levelled against him. He, therefore, submitted that the trial Court has committed an error in convicting accused No. 5 for the offence punishable under Sec. 120 -B of IPC. In this regard, he has relied upon the decision of the Apex Court in P.K. Narayanan v/s. State of Kerala reported in : (1995) 1 SCC 147, wherein it is observed as under: -