THAKORE SHIVAJI PUNJAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is preferred by the appellant against the judgment and order passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No. 57 of 1995 on 16th August, 1995, whereby the present appellant has been convicted for the offence punishable under Section 302 of I. P. C. , and is sentenced to life imprisonment with fine of Rs. 3000/- and in default of payment of fine, the appellant is sentenced to further six months' rigorous imprisonment. The appellant has also been convicted for offence punishable under Section 201 of I. P. C. and is sentenced to six months' rigorous imprisonment with fine of Rs. 1000/- and in default of payment of fine, the appellant has been sentenced to further three months' rigorous imprisonment. Sentence in both the offence was ordered to run concurrently.

(2.) AS per the case of the prosecution, during night hours between 9th and 10th November, 1994, Ramtuji Chudaji Thakor was murdered by the present appellant-accused and Thakor Kantiji Senghaji [who has been acquitted by the trial court]. It is the case of the prosecution that as per the prosecution witnesses, the present appellant and the deceased Ramtuji were in company of each other and thus, the whole case is based upon the principle of last seen together". It is also the case of the prosecution that there is recovery of weapon which links the present appellant-accused with the offence as per the panchnama at Exh. 36. There is also recovery of shirt of the deceased at the behest of the present appellant-accused as per the panchnama Exh. 28. These were circumstances present against the present appellant and therefore, charge sheet was filed and Sessions Case No. 57 of 1995 was registered and after recording evidence, the present appellant was convicted by the trial court for the offence punishable under Section 302 of I. P. C. , for committing murder of Ramtuji and against this judgment and order awarding sentence, the present appeal has been preferred.

(3.) WE have heard the learned counsel for the appellant, who has vehemently submitted that the prosecution had failed to prove its case beyond reasonable doubt against the appellant; that there is no eye witness of the incident; that in the information given by P. W. 1-Gopalji Chudaji Thakor, which is given exhibit no. 9 and which is earlier in point of time, nowhere reveals the fact that the present appellant had gone at the residence of the deceased and that they were in the company of each other. It is also submitted by learned counsel for the appellant that as per the evidence of P. W. 2-Patel Lalbhai Shankerdas, who is examined at Exh. 10, he has stated that there were 2 to 3 other persons with the deceased. This witness has also not given name of the appellant. It is also submitted that there is joint recovery panchnama of the weapons as alleged by the prosecution by panchnama at Exh. 36. This joint recovery of the weapons is not leading to any conclusive evidence about the involvement of the appellant.