ARVINDBHAI LAXMISHANKAR SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Challenge in this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 9.7.1999 rendered in Sessions Case No. 195 of 1996 by the learned Additional Sessions Judge, Surat, Camp at Vyara, by which the appellant ('the accused' for short) has been convicted for commission of the offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) and sentenced to suffer imprisonment for life and fine of Rs.400/- i.d., simple imprisonment of one month for the offence punishable under Section 302 IPC whereas he has been acquitted for commission of the offence under Section 135 of the Bombay Police Act ('BP Act' for short).

(2.) The prosecution case as disclosed from the FIR and unfolded during trial is as under:

(3.) Ms. Sadhna Sagar, learned advocate appointed by the Legal Aid Committee for the accused, has vehemently assailed the impugned judgment and order contending that in fact there is no eye witness who saw the accused inflicting blow on the deceased. However, the prosecution tried to project P.W.6, Tinaben, daughter of the deceased, as eye witness to the incident. A close scrutiny of the evidence of P.W.6, it can be seen that she has not witnessed the incident as she was out of the room at the relevant time and the incident had taken place inside the room. She has also contended that so far as P.W.4, Jayaben Surjibhai, mother of deceased and P.W.5, Jitubhai Sumanbhai, son of the deceased, are concerned, they are hear-say witnesses and they had not seen the accused inflicting knife blow on the deceased. Therefore, according to her, in the entire length and breadth of the prosecution case, complicity of the accused of committing murder of Shakuben has not been proved. However, the trial Court misdirected itself by considering the evidence of P.W.6, Tinaben as an eye witness and recorded the conviction and sentence against the accused. It is also highlighted by her that the panch witness of the panchnama of the scene of the offence as well as panch witness of the clothes of Tinaben which were also stained with the blood of deceased Shakuben have not supported the prosecution case and therefore also the prosecution has failed to establish the charge levelled against the accused. She therefore submitted that the impugned judgment and order deserves to be quashed and set aside by allowing the appeal and thereby acquitting the accused of the offence with which he was charged.