DILIPSINGH GURUDAYALSINGH SIKLIGAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) APPEAL admitted. Ld. APP Mr. Bhatt waives service of notice of admission.

(2.) THE appeal was listed for admission hearing on 12/12/2008 and it was brought to our notice by learned advocate for the appellants that the appellants are convicted solely on basis of an extra judicial confession of a co-accused, who is not an appellant before us and that there is no other evidence to establish nexus between the occurrence and the appellants. We have, therefore, directed the Registry to call for the record and proceedings from the trial Court so as to reach this Court on or before 18/12/2008 and examined the record and proceedings. Having found substance in the submissions made by learned advocate Mr. Kanani on the earlier occasion, we deemed it proper to take up this matter for final hearing and with consent of both the sides, the matter has been heard by us finally.

(3.) THE facts leading to the present appeal can be narrated thus:-The appellants along with co-accused Tufansing Gurubachchansing Shikh came to be tried by Sessions Court, Bharuch for offences punishable under sections 395, 457, 380, 511 and 114 of the Indian Penal Code [ipc] in Sessions Case No. 88 of 2007. The prosecution case against the appellants and co-accused Tufansing Gurubachchansing Shikh was that on 9/5/2006 around 4. 00 a. m. , complainant Bhadrasinh Harisinh Rajna realised that somebody was breaking open the front door of his residence located in the Paradise Park, Near Water Tank, Bholav, Bharuch. When they inquired about who was outside the door, there was no reply. But some persons broke open the main door to the house and tried to break open the door to their bed room with the help of an iron pestle like instrument. The complainant and his wife, therefore, raised alarm and shouts for help from the windows, but there was no response from neighbourhood. The complainant had a licence revolver with him. The assailants tried to enter the room by breaking open the door and made a gap between the door and frame. The complainant was, therefore, constrained to open fire in right of exercise of his private defence, as a result the miscreants ran away. One of the persons sustained bullet injury in his chest. By then, the neighbours had woken up and had gathered near the house. The assailants were noticed to be six. The complainant, first informant, therefore, contacted the police on telephone and police came immediately in the official vehicle. One Tufansing Gurubachchansing Shikh was found and apprehended by police from near Jyotigram Jupadpatti. He was interrogated by police and he is alleged to have disclosed names of the present appellants as accomplish. The police recorded the FIR, registered the offence, investigated it and ultimately filed charge-sheet in the Court of the Ld. Chief Judicial Magistrate, Bharuch against said Tufansing Gurubachchansing Shikh and present appellants. During the course of investigation, dying declaration of accused no. 1 - Tufansing Gurubachchansing Shikh was recorded which came to be produced before the trial Court at exh. 42. The trial Court on basis of evidence led before it, convicted all five accused persons by judgment and order dated 21/11/2008 and hence this appeal.