JUDGEMENT
G.R.UDHWANI, J. -
(1.)THE appellant, original-accused, having been
sentenced, inter alia, to life imprisonment for the offences
punishable under Sections 302, 323 of the Indian Penal Code
as also under Section 135(1) of the Bombay Police Act by
impugned judgement and order dated 27.11.2006 passed by
learned Additional Sessions Judge, Fast Track Court No. 3,
Ahmedabad, in Sessions Case No. 91 of 2004, is before this
Court questioning the impugned judgement and order on
various grounds.
(2.)THE main argument advanced by learned counsel for the appellant was that the prosecution did not come out
with correct and reliable facts inasmuch as the evidence on
record indicates that the entire genesis of the occurrence was
altered and in the First Information Report (FIR) a story
different than what was testified by PW-1 and PW-2 was
canvassed. He also submitted that there were various
contradictions, omissions and improvements in the story of the
prosecution. In FIR the offence in two parts was alleged to
have taken place, at the same time, while in the deposition of
PW-1 and PW-2 the offence in two parts took place at two
different places with a distance of 300 ft. In his submission,
adverse inference must be drawn against the prosecution for
having changed the genesis as well as the place of occurrence.
Learned APP Mr. Soni vehemently submitted that the Court below has given cogent reasons to sustain the conviction
of the appellant. There were two eye witnesses who
consistently deposed about the presence of PW-1 initially and
then on a call presence of PW-2 and deceased Chetan as also
the presence of the appellant who entered into a quarrel with
PW-1 and then while PW-1 was taking the appellant to the
police station, he got released from the grip of PW-1 with the
help of the people who had gathered there, went inside his
house; removed the jacket; came out with deadly weapon knife
and then attempted to assault initially PW-1, then PW-2 who
could avoid the assault but the deceased Chetan could not
escape the assault and the appellant stabbed him
indiscriminately with the result deceased Chetan succumbed
to the injuries in Civil Hospital. In his submission even the
garments of the deceased and the appellant were blood
stained with blood group AB is that of deceased as found
during the scientific investigation by serological report.
Learned counsel also submitted that even the weapon of
offence i.e. knife was discovered from the possession of the
appellant containing blood stains of the deceased and thus
apart from the fact that the offence in question was witnessed
by PW-1 and PW-2, there were strong circumstances against
the appellant leaving no room for inference of his innocence
and therefore, in his submission this Court may not interfere
with the impugned judgement and order of the lower Court.
(3.)WE are not convinced with the arguments advanced by learned APP Mr. Soni as we find from the record that the
prosecution canvassed two different stories at two different
points of time i.e. one in the FIR and the other through the
testimony of PW-1 and PW-2. According to PW-1, the offence
had occurred in two parts. Initially, while PW-1 was driving his
vehicle and reached at cross-roads near Mohan Talkies, he
found the appellant with a baby crossing the road; he blew
horn, the appellant came near to him and started abusing him
to which PW-1 objected; and the appellant responded by
saying that he does not know how to drive the car and he
should drive the car properly. This was followed by heated
altercation between two during which the accused appellant is
alleged to have caught hold of the collar of PW-1, pulled his
gold chain and pulled him out of the vehicle and then there
was a free fight. By the time people gathered and separated
both of them. The accused appellant went away in a nearby
street. PW-1 sought help of PW-2 by telephonically summoning
him after apprising him of the occurrence. As explained by PW-
2, the deceased was with him at his shop when PW-1 asked for the help of PW-2. Therefore, PW-2 accompanied by the
deceased, came on two different two wheelers at the spot of
the offence and PW-1 expressed his intention to lodge
complaint but PW-2 and deceased insisted to see the appellant
and therefore PW-1 took both of them to the street where the
appellant had gone and there he found the appellant with two
other persons and pointed him out to PW-2 and the deceased.
It is deposed that thereafter PW-1 with an intention to take the
appellant to the police station caught hold of his one hand and
also the jacket with other hand and pulled him. At that point of
time the people who gathered there started tapping PW-1 on
his head which resulted into loosening of the grip of PW-1 on
the appellant who consequently escaped, went to his house,
removed the jacket, came back with deadly weapon knife and
attempted to assault initially upon PW-1 who could avoid it and
then upon PW-2 who also succeeded in avoiding it and ran
away to the other side of the road. It is deposed that at that
point of time the deceased was sitting on his scooter, ready to
drive and accused grabbed this opportunity, stabbed the
deceased on his back and thus the deceased was injured and
PW-2 had also gone away before that and PW-1 on sighting the
deceased on the scooter, felt that he will follow him; left the
scene; went to the police chowky and found Umesh PW-2
coming out of the police chowky; Umesh apprised him about
severe assault on deceased Chetan which PW-2 learnt from
one Pintoo who received a mobile call made by Umesh for
Chetan deceased. Pintoo had advised both of them to
immediately move to the emergency ward of the Civil hospital.
At this juncture, it is pertinent to note that PW-2 is said to have
moved Civil hospital on motor bike belonging to a police
constable. They reached Civil hospital, stayed there till early
morning and in the meanwhile at about 1.30 in the night, the
deceased expired. Ultimately, the complaint came to be lodged
which is produced at Exh. 23. PW-2 in his testimony concurred
with the facts stated by PW-1 to the extent of his presence.
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