MAHENDRA ALIAS BABLU DIXIT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE instant appeal is preferred by the appellant against the judgment and order rendered by learned Additional Sessions Judge, Court No. 18, Ahmedabad City on 24. 9. 2001 in Sessions Case No. 135 of 2000 whereby the present appellant being accused of the said Sessions Case was convicted by the trial Court for the offence punishable under Section 302 and was sentenced to undergo imprisonment for life. Though the accused appellant was charged for the offence punishable under Section 135 (1) of the Bombay Police Act, but the accused appellant was acquitted for this charge.

(2.) IN brief, according to the prosecution case, the incident occurred on 12. 10. 1999 at about 22. 30 hours. The First Information Report is filed by the father of the deceased on the next day before the police. According to the complainant - Motiram Pandurang Kumavat, he was retired Police Head Constable and deceased Ganesh was his son and he was driving jeep car. Six months before the incident, the accused and the deceased both were friends and had quarrel about spare part of the jeep particularly about one tube light and, therefore, the deceased alleged to have administered two slaps to the accused and thereafter relation between the two was cut. On the day of the incident, the deceased had been to watch garba because it was time of Navratri and at that time, one Kokilaben came to the house of the complainant and conveyed to the complainant that the deceased was beaten by the accused in nearby street of one Kerocenewala and, therefore, the deceased had come to her house and the deceased had summoned the complainant. The complainant and his other son Suresh had been to the house of Kokilaben and it was noticed that deceased Ganesh was bleeding from the back and from the stomach from wound. The complainant inquired form the deceased about injuries and it was conveyed to him by the deceased that when he was going to watch garba at about 10. 30 and when reached in the nearby street of Mahesh Kerocenewala, he met with the accused. The accused accosted him and stated that why the deceased had slapped him even though he (accused) had not taken the tube light from jeep car. There was some exchange of words between the two and from the back, the accused inflicted Gupti blow on the back of the deceased. When the deceased turned round, he noticed the accused withdrawing Gupti from his body. Thereafter, the accused had run away from that place. The deceased in injured condition reached at the house of Kokilaben and thus the complainant was summoned there and thereafter, injured Ganesh was shifted to Shardaben Hospital at Ahmedabad and was operated. From the hospital, vardhi was given to the police and the Police Sub Inspector Mr. R. B. Chavda visited Shardaben Hospital; recorded the complaint of the complainant. The crime came to be registered at Odhav Police Station and the investigation was handed over to Police Inspector Mr. N. H. Joshi. He also recorded the statement of injured Ganesh and ultimately Ganesh died on 14. 10. 1999 at 4. 45 a. m. On the same day, the accused was arrested; discovery of weapon was effected through panchnama and ultimately, after investigation was over, chargesheet came to be filed against the accused in the court of Metropolitan Magistrate, Court No. 20 at Ahmedabad. Learned Metropolitan Magistrate committed the case to the court of Sessions and the case was made over to the trial Judge. The charge came to be framed on 25. 4. 2000 vide Exh. 1. The accused pleaded not guilty. The prosecution examined as many as 13 witnesses. PW 1 Exh. 7 Motiram Pandurang Kumavat - complainant. However, the deposition of the complainant recorded by the trial Judge on 26. 5. 2000 came to be quashed by the High Court in Criminal Misc. Application No. 3181 of 2000 with a direction to record the evidence of the complainant afresh because when earlier the evidence was recorded of the complainant, the accused was not represented by any advocate. Thereafter, his fresh evidence was recorded vide Exh. 41. PW 2 - Kokilaben Hiralal Patel is examined at Exh. 43 before whom also, it is alleged that the deceased made dying declaration as to the injuries caused by the accused. PW 3 Jaidevsinh Dilipsinh Jadeja examined at Exh. 44 is also a witness who assisted in shifting the deceased in the hospital and before whom also, dying declaration was made by the deceased that he was beaten by the accused. PW 4 Bhavansinh Abhesinh Chauhan examined at Exh. 45 is a panch of panchnama Exh. 46 of the scene of offence. PW 5 Subhash Vamanrav examined at Exh. 47 is a panch of inquest panchnama Exh. 48. PW 6 Kanubhai Prataprai Thakkar examined at Exh. 49 is a panch of discovery panchnama which is produced at Exh. 50. PW 7 Govardhan Naranbhai Vaghasiya is a Doctor examined at Exh. 52 who first in point of time treated injured and deceased Ganesh at 11. 25 p. m. on the day of incident at Shardaben Hospital and according to him, the injured had following injuries.

(3.) AFTER the prosecution case was over, the statement under Section 313 of the Code of Criminal Procedure, 1973 was recorded by the trial Court of the accused bringing out incriminating circumstances against the accused, the defence of the accused appears to be of total denial and in defence, he examined six witnesses and they are Ghanshyambhai Dahyabhai Panchal Exh. 80, Sanjaykumar Chhanulal Exh. 81, Omprakash Shayamshankar Tiwari Exh. 82, Rajubhai Shayamshankar Tiwari Exh. 83, Ramanand Prabhudayal Avasthi Exh. 84 and Manilal Shivabhai Exh. 86. All these defence witnesses have been examined to establish alibi of the accused that he was at the relevant juncture in the temple and not at the scene of offence.