DHIRUBHAI LAXMANBHAI SINDHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT appeal is filed by original accused no. 1- Dhiru Laxman Sindha of Sessions Case No. 151 of 1999 assailing the legality and validity of the judgment and order of conviction and sentence dated 3rd June, 2000 passed by learned Additional Sessions Judge, Kheda at Nadiad. The appellant-accused has been held guilty of charge under Section 302 of IPC and has been sentenced to undergo life imprisonment and to pay fine of Rs. 1000/- and in default of payment of fine, punishment of rigorous imprisonment for one year is imposed. The appellant-accused has also been held guilty of charge of offence under Section 201 of IPC and has been sentenced to three years' rigorous imprisonment with fine of Rs. 500/- and in default of payment of fine, additional punishment of simple imprisonment for three months has been imposed. The appellant-accused has also been held guilty of the charge of offence under Section 498a and has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 250/- and in default of payment of fine, punishment of one month's simple imprisonment has been imposed. All the sentences were ordered to run concurrently.

(2.) THE appellant [original accused no. 1] was tried along with other two accused, i. e. original accused no. 2 Mohanbhai Laxmanbhai Sindha-younger brother of the appellant-accused and original accused no. 3 Maniben Laxmanbhai Sindha, mother of appellant-accused.

(3.) WE have heard Mr. M. M. Tirmizi, learned counsel appearing for the appellant. According to Mr. Tirmizi, learned trial Judge ought to have given benefit of doubt to the present appellant, because, if Charge-Exh. 4 is read and considered, then, it is possible for the appellant to submit that all the three accused were placed on similar footing and allegations against all the three were same and when two of them have been acquitted, on the ground of parity the present appellant could also have been acquitted. It is submitted that there was no scope for the trial court to segregate accused no. 1 and other two accused who have been acquitted and when the State has not preferred any appeal against the acquittal of accused nos. 2 and 3, accused no. 1, the present appellant also could have been given that benefit. There are no eye witnesses to the incident nor any independent witnesses have been examined. When it is the case of the prosecution that theh offence has been committed at 11. 00 A. M. , then,somebody from the neighborhood must have heard hubbub or screams or shouts of the deceased. Non-examination of witnesses to prove this aspect, which normally would happen, would affect the case of the prosecution adversely. That the trial Judge has not considered this aspect in its correct perspective and that has resulted into some injustice to the appellant.