JUDGEMENT
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(1.)The accused namely, Antariyabhai Bhangdabhai Rathva was charged with offence under Section 302 of Indian Penal Code and section 135 of Bombay Police Act. The accused was found to be guilty of the offence with which he was charged by the Additional Sessions Judge & Fourth Fast Track Judge, Fast Track Court, Chhota Udaipur vide its judgment dated 06.08.2004 passed in Sessions Case No. 15 of 2003 and was awarded life imprisonment and was ordered to pay fine of Rs. 2000/-, in default, rigorous imprisonment for two months for the offence under Section 302 IPC. For the offence under Section 135 of B.P. Act, no separate punishment has been imposed. The appellant, being aggrieved and dissatisfied, by the said judgement and order of conviction dated 06.08.2004 has preferred this appeal.
(2.)The facts leading to the present appeal are as follows:-
2.1 A complaint was lodged by one Medliben Mithiyabhai on 29.11.2002 with Rangpur Police Station inter alia alleging that while she along with her husband, sister, brother-in-law and some other persons of her faliya were standing near Rangpur bus stand at around 2.30 pm waiting for transport, a jeep came there and they started loading the jeep with their luggage. At that time, the accused-Antariya Bhangda Rathva came there with dhariya and inflicted two blows on the head of the husband of the complainant with the dhariya. The husband of the complainant fell down on the road. The accused-appellant fled away from the scene of offence.
2.2 It is further stated in the complaint that she started shouting for help and many shopkeepers who had their shops nearby came there. She, thereafter, frantically ran to her sister s house who lived nearby to inform her sister and brother-in-law. When she reached her sister s house, she was told that her brother-in-law (sister s husband) had gone for work and she therefore narrated the entire incident to her sister. The complainant and her sister thereafter reached Rangpur bus stand and it is stated that by that time police authorities had arrived at the scene of offence.
2.3 It is further stated in the complaint that the dead body of the deceased was taken in a vehicle and that her sister as well as daughters of elder brother-in-law (jeth) accompanied the deceased whereas the complainant, her sister and other persons went to the police station to lodge a complaint in this regard.
2.4 The complainant in her complaint has stated the motive of the accused-appellant in committing the alleged offence. She has stated that two years back the family of the deceased was involved in the murder of the nephew of the accused involving a lady Remliben and therefore the accused was holding a grudge against the deceased and his family members.
2.5 Thereafter, the offence was registered against the present appellant for the offences punishable u/s 302 of Indian Penal Code and section 135 of B.P. Act. Investigation was carried out and chargesheet was submitted against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court which was thereafter transferred to Fast Track Court, Chhota Udepur.
2.6 The trial was initiated against the appellant and during the course of trial the prosecution examined following witnesses as oral evidences:
i. P.W. 1 Dr. Kishore Desai Ex. 09
ii. P.W. 2 Jinkiben Metabhai Ex. 13
iii. P.W. 3 Tersinghbhai Rathva Ex. 14
iv. P.W. 4 Mendliben Bhuvansingh Ex. 15
v. P.W. 5 Bharatsinh Mithiyabhai Ex. 16
vi. P.W. 6 Virsinghbhai Vajubhai Ex. 17
vii. P.W. 7 Jorliyabhai Rathva Ex. 18
viii. P.W. 8 Bhailalbhai Gatubhai Ex. 19
ix. P.W. 9 Dr. Avaniben Vyas Ex. 24
x. P.W. 10 Dr. Sunilkumar Patel Ex. 30
xi. P.W. 11 Akmabhai Damor Ex. 33
2.7 The prosecution also relied upon the following documents as documentary evidences:
i. Complaint Ex. 42
ii. Police Yadi Ex. 25
iii. Medical Certificate (Bhuvansingh) Ex. 27
iv. Wireless Message for DD (SSG) Ex. 34
v. Panchnama of scene of offence Ex. 20
vi. Telephone Vardhi Ex. 44
vii. Inquest Panchnama Ex. 43
viii. Police Yadi for P.M. Ex. 10
ix. P.M. Note Ex. 11
x. Panchnama of clothes on deceased Ex. 36
xi. Panchnama of body condition of accused Ex. 21
xii. Police Yadi for taking blood sample of accused Ex. 35
xiii. Panchnama of blood sample Ex. 37
xiv. Dispatch note Ex. 38
xv. FSL Report Ex. 39
xvi. Notification by District Magistrate Ex. 41
xvii. Police Yadi for map Ex. 40
2.8 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions and Fast Track Court Judge convicted the appellant of the charges leveled against him vide impugned judgement and order.
(3.)Mr. Harnish Darji, learned advocate for the accused-appellant submitted that the prosecution has failed to prove the case against the present accused-appellant beyond reasonable doubt. He has contended that the two alleged eye witnesses examined by the prosecution are interested witnesses and they have wrongly involved the appellant in the offence. He submitted that even their presence at the scene of offence is doubtful. He further submitted that no independent witnesses have been examined by the prosecution though they were available.
3.1 Mr. Darji submitted that the panch witnesses have turned hostile and not supported the case of the prosecution; hence the prosecution has failed to prove the panchnama. He submitted that under these circumstances, the impugned judgement and order is liable to be quashed and set aside.
3.2 Mr. Darji submitted that there are variations in the statements made by the witnesses. He has drawn the attention of this Court to the time of incidence and submitted that the complainant in her complaint has stated that the offence was committed around 02.30 pm whereas one of the witnesses has stated that the incident occurred at around 01.30 pm. He submitted that in fact the medical papers show that the deceased was brought to the hospital by 02.45 pm and it is stated therein that the incident occurred around an hour back. He contended that therefore the versions given by the complainant and witnesses cannot be relied upon as there are variations in the same.
3.3 Mr. Darji has submitted that the brother of the deceased P.W. 5 and the wife of the deceased P.W. 1 did not accompany the deceased to the hospital and that they had sent some other persons to the hospital with the deceased which creates doubt about the complainant being the eye witness in the said incident. He submitted that in fact she was at her sister s place when the alleged incident happened and therefore her evidence cannot be relied upon.
3.4 Mr. Darji submitted that looking to the overall facts and circumstances of the case benefit of doubt is required to be given to the present appellants and the appeal deserves to be allowed.
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