MARSINGHBHAI JOGADABHAI DAMOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Y.M. Thakkar, learned advocate for the appellants and Ms. D.S. Pandit, learned Additional Public Prosecutor for the State.

(2.) The appellants are accused No.1 and 2 of Sessions Case No. 285 of 2004. [When the case of the accused persons were committed to the Court of Sessions, it was registered as Sessions Case No. 9 of 2004 of Panchmahals District wherein learned Additional sessions Judge, Fast Track Court No.4, Panchmahals at Godhra framed charges against the accused persons but on separation of judicial District, the Sessions Case was transferred to the Court of Sessions at Dahod District,and the case is re-numbered as Sessions Case No. 285 of 2004]. Learned Sessions Judge, Dahod tried all the three accused persons, and, at the conclusion of the trial, the learned Sessions Judge, Dahod acquitted accused No.3 Lalabhai Jogdabhai Damor. However, the learned trial Judge convicted accused No.1 for an offence punishable under section 304 Part II of Indian Penal Code and sentenced him to undergo rigorous imprisonment for 5 years and fine of Rs.1000/-, in default of payment of fine, simple imprisonment for one month. So far as accused No.2 is concerned, the learned trial Judge convicted him for an offence punishable under section 324 of the Indian Penal Code and sentenced him to undergo simple imprisonment for two years and fine of Rs.500/-, in default of payment of fine, simple imprisonment for 15 days. Both the accused were also convicted under section 135(2) of the Bombay Police Act and both were sentenced for 3 months' simple imprisonment and fine of Rs.100/- each, in default of payment of fine, simple imprisonment for one week. The sentences were ordered to run concurrently in both the cases. The said order of conviction and sentence are challenged by the appellants in the present appeal.

(3.) Mr. Y.M. Thakkar, learned advocate for the appellants has taken me through the basic case of the prosecution and the evidence led during the course of trial. The order of conviction and sentence is assailed on various grounds mentioned in the memo of appeal and by reading relevant part of the judgment, Mr. Thakkar has argued that the findings recorded by the learned trial Judge is erroneous, as the same is based on conjectures and basic principles of appreciation of evidence were ignored while linking the accused with the crime. Undisputedly, the present accused as well as the complainants were on inimical terms and there was land dispute between them. The learned trial Judge was deciding a cross-case. If the evidence of ASI examined by prosecution, PW.12, Exh. 41 [page No.255-257], this police witness has admitted that at the time of arrest, all the three accused were injured and when the police took the photographs, all the three had injuries on their head and had bandages applied by the Government Hospital. According to Mr. Thakkar, except a casual reference to the cross case, there is no discussion in the judgment as to the result or outcome of the cross case. Normally cross-cases should be tried and decided simultaneously otherwise it is likely to result into serious prejudice to the accused. According to Mr. Thakkar, the witnesses examined by the prosecution in the capacity of eye witness to the incident have given a contrary version to their initial say. It emerges from the evidence that prior to going to hospital with the injured Jhumbliben, they had been to the police station; police had given a yadi to them. The Doctor who initially examined injured Jhumliben was told that she had sustained injuries because of a pelted stone. It is also in the evidence that damages were also suffered to the house of Jhumliben and roof tiles were also broken because of pelting of stone towards the house. It is argued that when the Doctor declared Jhumliben dead as she succumbed to the injuries sustained, the family members, who were present in the hospital, concocted a story and branded all the three persons as persons holding a 'kulhady' [axe], 'dharia' [scythe] and stick in their respective hands and of a group of assailants. The delay of four hours in lodging the FIR goes to the root of the merits of the case in the background of one important fact that they had been to police station initially and atleast one of them could have lodged a detailed FIR placing the case in detail. Prosecution witnesses examined have also explained the visible injuries on the body of the accused persons. The learned Sessions Judge has ignored one aspect that eye witness to the incident, perhaps, were the accused of the cross-case. Therefore, their status was of partisan witnesses. It is therefore submitted by Mr. Thakkar that when the prosecution has not placed one consistent story, then the advantage should go to the accused.