MUKESHBHAI ARJANBHAI MARU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal under section 374 of the Code of Criminal Procedure, 1973 is preferred by the appellant herein - original accused No.1 - Mukeshbhai Arjanbhai Maru against the judgement and order of conviction and sentence passed in Sessions Case No.190 of 2011 by the Court of Sessions, Bhavnagar dated 15/03/2014 whereby the appellant herein - original accused No.1 came to be tried along with other two accused for the offences punishable under sections 302, 323 read with section 34 of Indian Penal Code and under section 135 of Bombay Police Act and at the end of trial, after recording evidence of 22 prosecution witnesses and documentary evidence, the learned trial judge concluded that the prosecution has succeeded in proving its case beyond reasonable doubt against the present appellant - original accused No.1 for the offence punishable under section 302 of Indian Penal Code read with section 135 of Bombay Police Act. The appellant herein - original accused No.1 was sentenced to undergo rigorous imprisonment for life with fine of Rs. 2000 and in default thereof, to further undergo rigorous imprisonment for one year for the offence under section 302 of Indian Penal Code and for the offence under section 135 of Bombay Police Act, was ordered to suffer rigorous imprisonment for six months with fine of Rs.1000 and in default thereof, to undergo further rigorous imprisonment for three months. All the sentences were ordered to rune concurrently.

(2.) Before proceeding further it is necessary to give brief facts about the case of prosecution which has genesis in the instance which took place on 02/09/2011 around 9 A.M. wherein all the accused in furtherance of their common intention, intercepted Jesingbhai Rathod (deceased) near Piparvala Chowk on Nari Road, Bhavnagar. The accused No.1 inflicted blows by knife on the deceased at three places of body of the deceased and accused Nos.2 and 3 gave kick and fist blows. After inflicting knife blows, the accused ran away and the deceased fell down and gave a missed call to complainant - PW No.13, who was an employee of factory of the deceased. Having seen the missed call, the complainant - Pravinbhai called upon the deceased on his mobile which remained unattended. Subsequently, when the complainant reached near the shop of Vithhalbhai on Nari road, he found the deceased lying on the ground and he also had seen three injuries on the body of the deceased and further the deceased disclosed name of three accused persons. Immediately one Girish Bechar - PW No.19 was informed and another person - Naresh alias Jitubha - PW No.16 was passing from the place of incident and they both took the deceased on the motorcycle to the hospital. Before the concerned medical officer In-charge - PW No.11 - Dr.Nayanaben Gayekwad, the deceased who was conscious, had given three names of assailants. In view of worsening situation, operation was performed and later on the injured succumbed to injuries on the next date i.e. on 03/09/2011.

(3.) In the backdrop of above, the case of the prosecution and findings, reasoning and conclusion drawn by the learned trial judge convicting A-1 and acquitting A-2 and A3 of the charges, Mr.A.D. Shah, learned counsel appearing on behalf of the appellant herein - original accused No.1 at the threshold contended that the case of the prosecution is based on oral dying declaration and other evidence do not corroborate or no any cogent material is brought on record so as to prove that the guilt of A-1 would be proved beyond reasonable doubt, since it is an established principle of criminal jurisprudence that conviction cannot be secured solely based on such oral evidence. He further submitted that in the facts of this case, witnesses particularly PW No.18 - Kantaben wife of deceased and PW No.13 - complainant and other two witnesses namely PW Nos.16 and 17 namely Naresh alias Jitubhai and Naresh Becharbhai Rathod in their testimonies do not come out with any supporting evidence and their testimonies suffer from vice of material contradictions, major discrepancies and improvement of such a nature that name of accused persons so given initially by the injured / deceased before PW No.11 - Dr.Nayanaben is replaced or changed and although all the accused were charged for the offence under section 302 read with section 34 of Indian Penal Code, the learned trial judge has not believed common intention and furtherance of such common intention and any criminal act on the part of the accused together make out a case that the appellant was innocent since he was falsely implicated. He has further submitted that the versions of all the above witnesses do not inspire any confidence and are wholly unreliable.