STATE OF GUJARAT Vs. KOLI MAKWANA CHHAGANBHAI LAXMANBHAI

JUDGEMENT

(1.) THE present confirmation case is filed by the state for confirmation of the capital punishment awarded by the impugned judgment and order dated 18-10-2007 passed by the learned Jt. District and Addl. Sessions Judge, Bhavnagar, in Sessions Case No. 127 of 2005 convicting the original accused (appellant in Criminal Appeal No. 44 of 2008) for the alleged offence under Secs. 363, 376, 392, 302 and 201 of the Indian Penal Code and awarding death sentence to the accused for the offence under Sec. 302 of i. P. C. subject to confirmation by the High Court of Gujarat. The appellant-original accused has also preferred an appeal, being Criminal Appeal No. 44 of 2008, against the impugned judgment and order under Sec. 374 of Criminal procedure Code challenging the conviction recorded by the learned Addl. Sessions judge, Bhavnagar, in Sessions Case No. 127 of 2007 for the alleged offence on the grounds set out in detail in the Memo of Appeal, inter alia, that the learned Judge has failed to appreciate the material and evidence on record and has also failed to appreciate the deposition of the witnesses. It is also contended that the learned Judge has failed to consider that the identification parade of the accused has been done by minor Nutan after 2 years of the incident and, even otherwise, the judgment and order is bad in law and contrary to the facts and circumstances. It is also contended that the learned Judge has failed to consider the medical evidence including post-mortem report that there are external injuries found on the body of the deceased and though no other evidence pointing out the guilt of the accused has been brought on record by the prosecution, the learned Judge has recorded the conviction finding the accused guilty. Therefore, the impugned judgment is contrary to the material on record and also contrary to the principles of criminal jurisprudence.

(2.) THE facts of the prosecution case, briefly summarized, are as follows :

(3.) MR. A. J. Desai, learned A. P. P. , referred to the material and evidence on record and briefly summarising the same, referring to the written submissions given by him, stated that the complainant-father Nandubhai Maneklal Ranadive has given a 'janvajog' entry regarding missing of his daughter Rani (deceased)before 'd' Division Police Station on 6-1-2003. The dead body of the deceased rani was found on 11-1-2003. The dead body was found from 'tamariya' Creek near 'ramdev' Temple at Bhavnagar and the panchnama thereof is at Exh. 12. He submitted that the respondent-accused was arrested in another crime being c. R.-I No. 340 of 2004 registered at Bhavnagar City 'a' Division Police Station on 2-4-2005 and on the basis of the 'janvajog' entry with regard to the death of the deceased the Investigating Officer arrested the accused for the present offence on 3-5-2005. Thereafter, as the accused revealed and disclosed with regard to the offence, he was taken with the panchas to the scene of offence from where the dead body of deceased Rani was recovered. The panchnama is made at Exh. 11 on the basis of the testimony of the panch witness Iliyasbhai Adambhai saiyad, P. W. 3 (Exh. 10 ). Further, as it was narrated and revealed by the accused, father of deceased Rani was informed and he lodged an F. I. R. being C. R.-I No. 60 of 2005 on 2-4-2005 at Bhavnagar City 'd' Division Police Station for the alleged offences under Secs. 363, 366, 376 and 302 of I. P. C. Thereafter, at the instance of the accused, the articles of the deceased girl Rani were discovered for which panchnamas at Exhs. 20, 31 and 32 were made. He submitted that thereafter, as it transpires from the record, the Test Identification parade of the accused through the Executive Magistrate, Bhavnagar, was held and the friend of the deceased, Nutan, who was with the deceased when she was abducted by the accused, identified the accused in the Identification parade on 16/17-5-2005.