NANABHAI SHIVABHAI PAGI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals arise out of a judgment and order rendered by learned Addl.Sessions Judge Fast Track Court No.2 Panchmahals at Godhra on 26.04.2004 in Sessions Case No.77 of 2003. In the aforesaid Sessions Case, six accused persons came to be tried for the offences punishable under Section 302 read with Section 114 of the Indian Penal Code ('IPC', for short) and Section 201 read with Section 114 of the IPC. At the end of the trial all the six accused persons came to be convicted for the aforesaid offences and each of them was sentenced to undergo R.I for life and fine of Rs.100/- and in default of payment of fine, S.I for seven days for the offence punishable under Section 302 r/w.Section 114 of the IPC and R.I for three years and fine of Rs.100/- and in default of payment of fine, S.I for seven days for the offence punishable under Section 201 r/w.Section 114 of the IPC. Original accused No.2 Nanabhai Shivabhai challenged his conviction by preferring Criminal Appeal No.817 of 2004, whereas original accused Nos.1, 3 to 6 challenged their conviction by preferring Criminal Appeal No.914 of 2004.

(2.) Prosecution case in nutshell is that the incident occurred on dated 13.12.2002 at about 7 p.m. in th evening in the village called Thesia, Taluka Lunawada, District Panchmahal. It is the case of the prosecution that at the time of the incident, deceased Kanubhai Dhulabhai along with six accused persons was consuming liquor in the house of accused No.2 Nanabhai and during that time, some altercation took place and it is alleged that all the six accused persons assaulted upon deceased Kanubhai and his neck was pressed and deceased died by asphyxia due to throttling. It is alleged that thereafter, the dead-body of deceased Kanubhai was carried to the field of PW-11 Shankarbhai and was thrown in a well in said field. Initially, Somabhai the brother of deceased Kanubhai, reported to the concerned police station about the missing of his brother Kanubhai. It is the case of the prosecution that on dated 16.12.2002, the dead-body of deceased Kanubhai was found from the well. Immediately, Somabhai, the brother of the deceased again informed the concerned police about the finding of the dead-body of Kanubhai. Concerned Police Officer visited the field of PW-11 Shankarbhai and at that time, Bhikhabhai, the another brother of deceased Kanubhai lodged first information report against the six accused persons. The FIR was registered and investigation was commenced. During the course of investigation, statements of material witnesses were recorded, necessary panchnamas were drawn in presence of panchas, incriminating articles like bloodstained soil, clothes, etc were forwarded to FSL for examination. After collecting required material for the purpose of lodgment of chargesheet, chargesheet came to be filed in the Court of learned JMFC, Lunawada. Since the offence was exclusively triable by the Court of Sessions, learned JMFC committed the case to the Court of Sessions, Panchmahal at Godhra, which was numbered as Sessions Case 77 of 2003.

(3.) The learned trial Judge framed charge at Exh.4 against all the six accused to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined in all 15 witnesses and produced relevant documentary evidence. After the prosecution concluded its oral evidence, the trial Judge recorded further statements of all the six accused persons under Section 313 of the Cr.P.C. The accused denied generally all the incriminating circumstances put to them by the trial Court and stated that they were falsely implicated in this case.