MEGHABHAI DHANABHAI RAJPUT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed against the impugned judgment and order dated 13.8.2008 passed by learned Additional Sessions Judge, Gandhidham-Kachchh, in Sessions Case No. 59 of 2006 by the present appellant-original accused No. 2, who was convicted for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life with fine of Rs. 5,000/- and, in default of payment of fine, further simple imprisonment of four months was imposed. Accused No. 1 was also convicted along with him, however, no appeal is preferred by accused No. 1.

(2.) The case of the prosecution is that on 27.7.2006 between 4.30 p.m. to 6.30 p.m., one Pancha Megha son of the complainant, Meghabhai Vaghabhai Chauhan was taken in a jeep. It is alleged that since some dispute arose with regard to fare, the accused gave knife blows on the chest of the deceased and thereby caused his death. It is also alleged that accused No. 2 with an intention to destroy the evidence and to prove that the deceased died in an accident, threw the dead body of the deceased near the tyre of the jeep. With this allegation, a complaint was registered against the accused persons.

(3.) Mr. Ashish Dagli, learned advocate appearing for the appellant-original accused No. 2 has taken us through the evidence and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against the accused. He also submitted that a false case is filed against the accused and he is wrongly roped in. He further submitted that the witnesses examined by the prosecution are interested witnesses as they are relatives of the deceased and no independent witnesses have been examined in the present case. He also submitted that the case is based on circumstantial evidence and there is no eye witness to the incident and the trial Court has committed an error in convicting the accused. It is also submitted that there was no intention or motive on the part of the accused to commit the offence. He further submitted that from the reading of the charge, it is clear that charge against the present appellant is for offence punishable under Section 201 of IPC and it is not for an offence punishable under Section 302 of IPC. He also submitted that since charge under Section 34 of IPC is not proved against the appellant, the State has not preferred any appeal. In that view of the matter, he submitted that the appellant ought to have been acquitted from the charge of offence under Section 302 of IPC. He further submitted that from the FSL report it is clear that the blood found on the clothes of the accused was of B group, which was of one of the injured accused and it was not of the deceased. He also submitted that only on the basis of discovery of weapon at the instance of the accused, he cannot be convicted by the trial Court. In support of his submissions, he has relied upon the decision of Division Bench of this Court in Criminal Appeal No. 1502 of 2009 with Criminal Appeal No. 2206 of 2009, wherein it is observed by the Court in paragraphs 28, 33 and 36 as under:-