VINOD RAJABHAI MAKWANA VANKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgement and order of conviction rendered in Sessions Case No.39 of 2007 dated 30.1.2009 passed by learned Additional Sessions Judge and Fast Track Court, Porbandar, whereby the appellant-original accused is convicted for the offence under Sections 397 and 302 of the Indian Penal Code and imposed sentence of life imprisonment and fine of Rs.5,000/- and in default thereof six months rigorous imprisonment for Section 302, for Section 397 rigorous imprisonment of 7 years and fine of Rs.2,000/- and in default of the same further imprisonment for 6 months and further to undergo sentence for 6 months and fine of Rs.500/- and in default of the same further imprisonment for 15 days for the offence punishable under Section 135 of the Bombay Police Act. The the sentences was ordered to run concurrently.

(2.) In nutshell, the complainant is the husband of deceased and accused was having acquaintance with the family and wife of the complainant who was attending B.Ed classes in Junagadh and came into contact with accused. On the day of the incident, namely, on 16.5.2007 around 18:15 hours she was called at Kamalabaug garden, Porbandar by the accused who reached there on Hero Honda motorcycle with hockey, petrol, acid and khukri like weapon from Upleta. Son, aged 5 years of the deceased and the complainant was also present. However, it is alleged that the accused committed a loot of ornaments namely 'mangalsutra' and 'golden chain (lucky)' and inflicted deadly blows of hockey and khukri on head as well as on face with knowledge and intention caused such grievous injuries to which injured succumbed to. Further, upon committing the crime as above, ornaments looted were handed over by accused to P.W.6 and thereafter upon completion of investigation and on filing of charge-sheet and committal of case, in which, 22 prosecution witnesses and 31 documentary evidence fell into consideration for the trial Court resulting into conviction and sentence, to which, reference is made in preceding paragraph.

(3.) At the outset, Mr.Pravin Gondaliya would contend that complainant-husband P.W.1 has no personal knowledge of the incident while P.W.2 is a child witness aged about 6 years at the time of recording the testimony. P.W.5, a Gardner claims to be an eye witness and P.W.6 produced ornaments of the deceased to the police at Kamalabaug police station. Various other panchas of panchnama P.W.s 4, 7, 8, 9, 10, 11, 13, 14, 15, 16 and 19 have turned hostile. The above panchas include that they were panchas of recovery of articles from the place of incident in presence of FSL, all golden ornaments, discovery of weapon like khukri, dagger and other articles from the scene of offence. That even learned trial Judge has not believed T.I. parade of identifying accused by P.W.5 and, therefore, the case of the prosecution based on the evidence like testimonies of child witness P.W.2 and eye witnesses P.W.5 and P.W.6 deserves to be carefully considered.