LAXMANBHAI LAKABHAI BARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All the appellants were accused of having committed murder of one Ramabhai Panabhai Luhar on 2nd December, 1991, at about 9.00 P.M., at Sukatimba of Panchmahals district. They were tried at the Sessions Court, Panchmahals vide Sessions Case No. 7 of 1992 and the learned Trial Judge, by his judgment and order dated 14th September, 1992, convicted accused Nos. 1 and 2 for the offence punishable under Sec. 302 of Indian Penal Code and accused No. 3 for offence punishable under Sec. 302 read with Sec. 114 of Indian Penal Code. Accused Nos. 1 and 2 were also convicted under Sec. 323 of IPC for causing injury to Bai Jashoda. All the appellants were sentenced to undergo life imprisonment and each of them was fined Rs. 1000/- and were ordered to undergo further imprisonment for three months in the case of default in payment of fine. Appellants No. 1 and 2 were also sentenced to undergo simple imprisonment for one month under Sec. 323 of IPC. Both the sentences were ordered to run concurrently. The said judgment and order of learned Sessions Judge, Panchmahals, at Godhra is under challenge in this appeal.

(2.) Brief facts of the case are that, deceased Ramabhai was a blacksmith. Injured Jashodaben is his wife. Deceased Ramabhai used to lead an unstable life, moving from village to village exploring the possibility of settling down. Appellant No. 2 Ladubhai Lakhabhai asked him to come to his home town Sukatimba and settle down. Though reluctantly, deceased agreed to this proposition and shifted to Sukatimba some time before the incident occurred. The deceased was given shelter by accused No. I Laxmanbhai Lakhabhai. It is the case of the prosecution that appellant No. 2 Ladubhai had borrowed Rs. 2000/- from the deceased for a period of about a month and, thereafter, brother- in-law of Jashodaben came to the deceased and requested for a loan of Rs. 2500/- for meeting with the expenses of marriages of his son and daughter. The deceased told him to come after a couple of days and on the other hand, demanded money from appellant No. 2 Ladubhai. Appellant No. 2 had grievance against the deceased as the deceased had demanded the money before completion of the term for which it was lent. On the day of incident, i.e. on 2nd September, 1991, appellant No. 2 went to the place where the deceased and Jashodaben were staying. He was equipped with a stick. The deceased was lying down on a cot. Appellant No. 2, without saying anything, gave a blow with the stick on the head of the deceased. At that time, appellant No. 1 also arrived equipped with a stick and he also gave a stick blow on the back of the deceased. Bai Jashoda, therefore, tried to rescue her husband and, in that transaction, she also was beaten by the accused persons. Appellant No. 3 Kohyabhai had, by then arrived and was instigating appellants No. 1 and 2 to finish the deceased. Bai Jashoda, therefore, raised shouts and, therefore, Chandubhai and Parbatbhai came there and relieved them of the beating. Thereafter, Chandubhai and Parbatbhai went away. Next day, in the morning, Jashoda tried to take her husband to the hospital. She needed a vehicle therefor, but nobody helped. Ultimately, her husband succumbed to the injuries at about 11.00 A.M. She, therefore, went to the Police Outpost at Gothib, falling within the jurisdiction of Santrampur Police'Station and lodged her complaint. The complaint was recorded by P.S.I. Pargi. The offence was registered, matter was investigated and having found sufficient material against the accused, the police charge sheeted all the three accused persons. At the trial, all the three pleaded not guilty and expressed their desire to face the trial. The learned Trial Judge, after considering the evidence led by the prosecution, came to a conclusion that the case against the accused persons was fully established by the prosecution and, therefore, recorded the judgment and order of conviction. Being aggrieved by the said judgment and order, the original accused persons have preferred this appeal.

(3.) Mr. J.M. Buddhbhatti, learned advocate appearing on behalf of Mr. M.J. Buddhbhatti for the appellants submitted that the entire prosecution case hangs on sole testimony of Jashodaben. There is no other supporting evidence emerging from the prosecution case and if the testimony of this witness is considered in light of the other evidence led by the prosecution, it is amply clear that the entire prosecution case and evidence is under a dark shadow of doubt. The learned Sessions Judge has not considered this aspect and has recorded the judgment and order of conviction. Mr. Buddhbhatti submitted that the deposition of Bai Jashoda goes counter to her complaint. If the FIR and her deposition are considered together, the entire prosecution case comes under the shadow of doubt as to its origin and the sequence of incidents. It becomes doubtful as to whether incident occurred on 2nd September or on 4th September and whether the incident occurred in the evening or at midnight or at 11.00 A.M. The medical evidence does not support the ocular evidence. Mr. Buddhbhatti submitted that, apart from these basic defects, the prosecution has failed to lead independent and cogent evidence, although it was available. The independent witnesses have not supported the prosecution case. Although, according to Bai Jashoda, who is the sole eye-witness, the deceased was badly beaten and he was bleeding profusely, no blood stains are found on any of the sticks. Likewise, although Bai Jashoda claims to have sustained injuries in the incident, there is no supporting medical evidence coming on record and, therefore, the learned Sessions Judge ought to have given benefit of doubt to the accused and acquitted them. Mr. Buddhbhatti, therefore, urged that the appeal may be allowed by setting aside the judgment and order of conviction recorded by the learned Sessions Judge and the appellants be acquitted.