PAPPUKUMAR BHOLA BHAGAT BANIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant accused has filed the present appeal being aggrieved by the judgment and order dated 30.12.2012 passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No.20 of 2012. By the aforesaid judgment, the learned Sessions Judge has convicted and sentenced the appellant for life imprisonment for offence under section 302 of IPC. The prosecution case is primarily based on the first informant's version who was the eyewitness to the incident.

(2.) Aakashram Kiritsinh filed the FIR on 12.06.2011. According to this first informant, while he was on his way from his shop to his home to attend nature's call, at about 3:30 in the afternoon, he found one Chhaganbhai Bhagwanbhai and Mangubhai Bhailalbhai standing on the road abutting to the railway line. He saw two people approaching them in that direction. One was holding a knife. Both of them were arguing with each other. The two persons whom this informant had seen, then went at an isolated spot on the road abutting the railway line. The first informant saw them arguing with each other. He further witnessed one of them picking up a stone and hitting the other on the head. Having seen this incident, the first informant immediately ran towards the attacker. The accused who was the attacker, was then handed over to the police. When questioned, the accused informed the first informant that since he was in relationship with his wife and since the husband was an obstacle in nurturing this relationship, he attacked the deceased with an intention to kill him. The first information report further narrated that the accused had taken the deceased into confidence, led him to an isolated spot, smashed his head with a stone, returned shortly to confirm that deceased had died. Based on this FIR, the learned Sessions Judge framed a charge at Exh.5. Both the accused no.1present appellant and the wife of the deceased were shown as coaccused and the charge was framed for offences under sections 302, read with section 120B/section 34 of the Indian Penal Code. Wife of the deceased Lilaben however was acquitted of the charges and it was the appellant accused who was convicted and sentenced for offence under section 302.

(3.) The first informant Aakash was examined as PW8 at Exh.24. In his testimony he stated that he was at his shop from 8 in the morning till about 10 a.m. He then left for his house. After lunch, when he was out at around 3 in the afternoon to attend the nature's call across the road, he came across two persons approaching him. The two had brief argument. One of them thereafter picked up a stone lying by and hit the other on head. The stone approximately was weighing 14 to 15 kgs. When the incident happened, one Mangubhai and Chhaganbhai were together present at the scene of offence. When shown the article 14 stone, this witness identified the stone that was used. This witness was crossexamined. The defense tried to suggest in the crossexamination that the first information report that was lodged at the hands of the complainant was not explained as it was in Gujarati language whereas the applicant was not in position to read or right Gujarati. The defense tried to bring out contradictions through this witness from the police statement that he had given. What was also tried to be suggested was that looking to the proximity of the police station, the first informant could not be lodged the FIR.