AMARSING GUMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is directed against the order passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No 56/82 on his file. The appellant accused was prosecuted on an allegation that at about 9.30 A.M. on 23-5-82 at Ankleshwar loco-shed he had inflicted two knife blows on the deceased Kanji Nagji who was the brother-in-law of the appellant-accused. The motive .as suggested by the prosecution but which could not be established is that the accused suspected that the deceased was in illicit intimacy with the wife of the appellant-accused. On the said day, the appellant is alleged to have inflicted two knife blows on the vital parts of the body of the deceased. At the relevant time Ganpat Mana (P.W. 4) and Chiman Lala (P.W. 6, were also on the said road. They immediately came to the deceased Kanji Nagji and asked him as to what had happened. The deceased is alleged to have told them that the appellant, his brother-in-law, had inflicted two knife blows. Karim, who appears to be the superior officer of these witnesses was also informed. He came there and before him the deceased made a dying declaration. Karim Mohmad thereafter lodged a complaint wherein the name of the appellant was disclosed and after completing the investigation the appellant was arraigned before the learned Additional Sessions Judge, for an offence punishable under section 302 of the Indian Penal Code. The learned Additional Sessions Judge, having appreciated the evidence, came to the conclusion that the offence alleged against the appellant beyond reasonable doubt and as such he convicted him and sentenced him to suffer rigorous imprisonment for life.

(2.) The appellant being aggrieved by the said order has preferred the present appeal through Jail and Mr. Dholakia, learned Advocate practising on the criminal side of this Court was appointed to assist the appellant. Mr. Dholakia raised the following two points for our consideration: 1. As per the evidence of Dr. Patel, the deceased must have lost his senses on receipt of the blows immediately and as such the alleged dying declaration made by the deceased before the witnesses cannot be ruled out. 2. When there is no eye-witness to the incident and when the case of the prosecution depends upon circumstantial evidence, the motive becomes a very relevant point and in absence of the motive being established, the accused would be entitled to benefit of doubt.

(3.) For the reasons to be now recorded, we feel that none of the contentions raised by Mr. Dholakia would merit any consideration. The incident had allegedly taken place at the narrow-gauge railway yard of Ankleshwar station. The deceased at the relevant time was coming towards his house. Witnesses Ganpat Mana and Chiman Lala, P.Ws. 4 and 6 respectively, were proceeding on that way. They saw deceased Kanji coming from the opposite direction in an injured state. Kanji immediately lied down on his OTA. When these witnesses reached there and inquired of Kanji as to what had happened, Kanji is alleged to have told them that the appellant had inflicted two knife blows. Chiman Lala was sent for fetching Karim Mohmad who came within a short time and before him also the deceased made a dying declaration. It is not the case of the appellant that these persons were inimically disposed towards the appellant or that they had any motive in falsely implicating the appellant. One witness Bai Mangi, the wife of the appellant, was examined on behalf of the prosecution to establish the motive, and the motive suggested by the prosecution seems to be that the deceased was trying to have carnal knowledge of Bai Mangi and the accused suspected this. He was, therefore, tempted to do away with the deceased. Bai Mangi, of course, has turned hostile to the prosecution. Her evidence, therefore, is of no assistance to the prosecution.