CHANDUBHAI NARANBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant came to be tried and convicted by City Sessions Court No. 2 in Sessions Case No. 139 of 2002 for the offence of murder of one Lalabhai Manjibhai, punishable under Section 302 of the Indian Penal Code ('I.P.C.' for short) and for carrying a deadly weapon in breach of notification under the Bombay Police Act, punishable under Section 135(1) of the Bombay Police Act. By the impugned judgment in the said Sessions Case dated 23rd April, 2003, the appellant came to be convicted for the offence of murder and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/ -, in default, to undergo rigorous imprisonment for six months. For the other offence, he came to be acquitted. Aggrieved by the said judgment and order, present appeal is preferred.

(2.) AS per the prosecution case, deceased Lalabhai Manjibhai was engaged in retail sale of fruits in a handcart in Behrampura area. On 23rd December, 2001, around 2.00 P.M., the appellant, Chandubhai Naranbhai Makwana, approached him and asked an apple free of cost, which he refused. Therefore, the appellant went away and returned after a few minutes with a wooden log in his hand and hit the deceased on his head with that wooden log. That blow caused a depressed fracture in the skull of the deceased and damage to the brain substance. Ultimately, the deceased succumbed to the injuries. An F. I. R. was lodged by one Laxmanbhai Harjibhai, sister's son of the deceased, with Gaekwad Haveli Police Station and offence came to be registered. The offence was investigated upon and, ultimately, charge sheet was filed in the Court of Metropolitan Magistrate, Court No. 12, who, in turn, committed the case to the Court of Sessions.

(3.) LEARNED Advocate, Ms. Hina Desai, for the appellant submitted that the first informant is not an eye -witness. There are three eye -witnesses to the incident, namely, P.W.2 -Bharatbhai Mangalbhai, P.W.3 -Ramsundar Rajmal and P.W.6 -Ranjitbhai Shantilal. Learned Advocate for the appellant submitted that out of these three eye -witnesses, P.W.2 -Bharatbhai Mangalbhai and P.W.3 -Ramsundar Rajmal have not supported the prosecution case and have been declared hostile. If evidence of P.W.6 -Ranjitbhai Shantilal is seen, it is clear that he went to the spot after the incident was over and crowd had gathered and he has deposed on the basis of what he learnt from the crowd. Under the circumstances, all the three eye -witnesses would not inspire any confidence. In absence of the evidence of eye -witnesses, there is no other material to link up the accused with the offence and, therefore, the Trial Court erred in convicting the appellant. She submitted that the appeal may, therefore, be allowed.