Gujarat High Court
The State Of Gujart vs Dilipbhai Bachubhai ... on 26 September, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, R.P.Dholaria
R/CR.A/2066/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2066 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE STATE OF GUJART....Appellant(s)
Versus
DILIPBHAI BACHUBHAI DABHI....Opponent(s)/Respondent(s)
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Appearance:
MR RUTVIJ OZA, APP for the Appellant(s) No. 1
MR ZUBIN F BHARDA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 26/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This appeal is preferred under Section 378 (1) (3) of the Criminal Procedure Code, 1973 (for short 'Act') against the judgment and order of acquittal Page 1 of 20 HC-NIC Page 1 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT passed by the learned Sessions Judge, Junagadh on 28.06.2006 in Sessions Case No.74 of 2002, whereby the respondent is acquitted of the offence under Section 302, 397, 450 of the Indian Penal Code and under Section 135 of the Bombay Police Act.
2. In the backdrop of the prosecution case, certain facts are stated in brief and also to the complaint being C.R.No. I - 65 of 2002 registered with Keshod Police Station alleging inter-alia that on 14.04.2002 around 02 : 00 am, the complainant - next door neighbour and nephew of deceased Godavariben aged about 65 years, heard noise outside his house and his aunt Godavari was seeking help and shouting because the respondent entered into her vaada (front yard of house) for committing theft and loot and deceased Godavari recognized the assailant who started inflicting knife blows on her neck, abdomen and chest. The complainant witnessed the crime as above being committed by the respondent who escaped thereafter. On 16.04.2002, the accused was arrested and the case was tried as Sessions Case No.74 of 2002 for the offence for which, reference is made in the earlier paragraph.
3. The learned trial Judge examined documentary as well as oral evidences and ultimately found that version of the complainant - PW No.2, PW No. 8 and PW No. 9 was inconsistent and material contradictions were noticed and all the above prosecution-witnesses were the witnesses of the crime committed by the respondent or having seen him and the knife allegedly used for inflicting injuries. Having found versions of Page 2 of 20 HC-NIC Page 2 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT these prosecution-witnesses unbelievable, the learned trial Judge also addressed himself to the nature of injuries inflicted on injured, testimony of the doctor who carried out postmortem, possibility of death due to such injuries and usage of knife and further found no nexus with the crime committed by the respondent - accused and ocular version vis-a-vis medico legal version - both were not reconcilable and that was one more circumstance which had gone against the prosecution. Considering the scene of offence, description of crime committed by the respondent- accused and deceased Godavariben who received grievous injuries getting out of her bed and unlocking the door etc. was found unbelievable and other such circumstances created doubt about the case of the prosecution and therefore, the judgment and order of acquittal was passed since the prosecution failed to prove its case beyond reasonable doubt.
4. That the above judgment and order of acquittal is under challenged by the State of Gujarat and Shri Rutvij Oza, learned APP would contend that the case of the prosecution is based not only on ocular version but is fully corroborated by the connected events and prompt and timely investigation undertaken by the Investigating Agency from receiving the information about the crime reporting thereof, drawing various panchnamas including inquest, search and seizure of the house of the accused, receiving dead-body for the purpose of postmortem report, completion of autopsy, visiting of the FSL officials to the scene of offence Page 3 of 20 HC-NIC Page 3 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT and collecting muddamal articles, sealing thereof and sending such muddamal for FSL analysis and even sniffer dog visiting the scene of offence and report received coupled with the fact that the nature of injuries so reflected in the medical papers, column no.17 of the postmortem report, cause of death and map of the scene of offence panchnama together were not only established but emphasis for proving its case beyond reasonable doubt. By taking us to the PW No.2, who is the complainant and also eye-witness of the incident categorically described and deposed to the extent of manner in which crime was committed that he being a nephew and next door neighbour and other family members had gathered due to ailment of his father, they had gone to sleep after midnight, but immediately upon hearing shouting from his aunt - deceased Godavariben, he came out from his house and saw the respondent inflicting the knife blows on deceased Godavariben and then, injured Godavariben opened the door of front yard of her house and before collapsing, she told the complainant that the respondent-accused escaped after inflicting knife blows. The above complainant witnessed chappal as it was lying in gallery (osari) and thereafter, informed other persons namely villagers, Sarpanch and teacher, all of them supported the case of the prosecution. Immediately, the complaint was given around 03 : 45 am as the complainant had gone on motorbike to the nearest police station which was about nine kilometers away from the village. Even taking us to the cross examination of this PW No.2, it is submitted that the Page 4 of 20 HC-NIC Page 4 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT accused was seen not only by the PW No.2, but also by PW Nos.8, 9 and other witnesses including PW No.3 and 10 who also supported the case of the prosecution. In the present case, according to the learned APP except PW No.7, who is a panch witness of arrest panchnama at Exhibit 49, all Prosecution Witnesses have supported the prosecution case and they are PW Nos.3, 4, 5, 6, 10, 11 who were the panchas of inquest, place of incident, recovery of chappal, search and seizure for clothes of the deceased being Exhibit nos.41, 43, 46, 60 and 62 respectively. That from testimony of PW No.2 has remained almost unimpeached throughout the lengthy cross examination and along with the above PW No.3, who was also a Sarpanch of the village, admits to have witnessed the signature in the map prepared by the Circle Inspector and also signing the panchnama of inquest initially at Exhibit 42. No doubt, PW No.9 - Rasilaben who is wife of the younger brother of the complainant, identified the accused in the Court and also admits to have received information from the complainant about the incident. That PW No.14 - Maldevbhai Virambhai received the complaint and made entry in the station diary and PW No.15 - Investigating Officer - Subhashchandra Gunvantrai not only corroborates the version of the PW No.5, but categorically deposed about all events recorded and investigated in time. That no room of doubt is left for external injuries recorded in column no.17 of the postmortem report Exhibit - 30 and containing the cause of death therein, such injuries were also mentioned in the inquest panchnama at Exhibit - 40 and Page 5 of 20 HC-NIC Page 5 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT version of the PW No.2 in the original complaint at Exhibit - 36 and final testimony of PW NO.1 - Dr.Janakkumar Madhak who carried out postmortem, deposed vide Exh.10 unequivocally stated that the injury no.1 having length of 10 cm and width of 3 cm horizontal shape in the middle of throat extending towards both the sides was sufficient enough for causing death of the deceased. In the lengthy cross examination, it has come on record that immediately after inflicting injuries of such nature on neck and simple injuries on other parts of the body, the possibility of the injury, walking of distance of 10 feet and opening the door etc. was not ruled out. The above postmortem doctor has sufficient knowledge about autopsy and had stated standard book author by Dr.Modi and other books of medial jurisprudence. Finally, by drawing our attention to other circumstances, cut- marks on the clothes seized of the deceased and also of the accused and various samples - muddamal sent for FSL and serological report and dog squad report, it is contended that in no uncertain terms, the prosecution has established its case beyond reasonable doubt and the defence was not able to point out any lacuna or any kind of irregularity in the investigation undertaken by the Investigation Agency. By drawing our attention to Exhibit 107 about analysis carried out by FSL of various samples containing blood and serological report about group of blood on such articles conclusively established that knife used by the respondent in inflicting blows, had blood stain having group of the deceased.
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5. Therefore, in this appeal, the judgment and order of acquittal passed by the learned Sessions Judge is wholly illegal and unsustainable warranting interference in exercising the appellate powers under Section 378 and 386 of the Criminal Procedure Code, 1973, since the view taken by the learned trial Judge in not believing the above type of evidences amounts miscarriage of justice which needs to be corrected by this Court.
6. As against the above, learned advocate appearing on behalf of the defence would contend that the judgment and order of acquittal passed by the learned trial judge is based on proper appreciation of the evidence on record in not believing the prosecution case for which, sufficient reasons are assigned and findings of no guilt of the accused and conclusion about his innocence cannot be said to be in any manner a view not possible. Further, even if, this Court is re-appreciating the evidence and come to a different view which may also be possible but at the same time, the view that is taken by the learned trial Court which is ruled out his involvement in the crime is not to be disturbed again. Learned advocate for the respondent has taken us to the reasonings and findings of the learned trial judge and submitted that there are material contradictions in the version of the PW No.2, 8 and 9 in as much as presence of PW No.8 was not of the same locality and PW Nos.2 and 9, in their testimonies, are inconsistent to the extent of Page 7 of 20 HC-NIC Page 7 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT utterance of deceased Godavari who had not named the accused. That very version of PW No.2 having seen the crime is highly improbable in view of the wall having height five feet and nine inches between two houses and that by standing on a stone lying by the side of a wall of the complainant. That injured Godavari was told by the complainant to open the lock of the door of her front yard and that seriously injured Godavari walked upto to the distance and unlocking the door and naming the accused of inflicting knife blows etc. is not only exaggeration, but falsely implicating the respondent. He has further submitted that the recovery of the clothes of the accused in the closed house for which, no procedure was followed and PW No.9 - wife of the younger brother of the complainant comes out with different version. It is further submitted that PW No.1 who is postmortem doctor is not specifically opining about usage of one knife and bearing one another injury is simple in nature. No material is brought on record to show that footwear/chappal which were lying at the scene of offence, were that of the accused and the case is made out by the prosecution is an afterthought to implicate the respondent-accused. It is submitted that the FSL and serological reports and blood stain on various articles and blood group 'A' do not carry the case of the prosecution in further since the accused as well as the deceased both had blood group 'A'. That sniffer dog and tracking route leading dog to the house of the accused is very weak peace of evidence and it is nothing more than one of the methods of investigation. Further though blood Page 8 of 20 HC-NIC Page 8 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT stained clothes along with water etc. were sent for FSL, the water contents had no blood and non- examination of husband of the deceased again created doubt about the prosecution case and involvement of the accused in the crime. Learned advocate for the defence would contend that the trial Court has found the evidence of PW No.2 and 8 both relatives of the deceased, unbelievable and utterance of the Sarpanch - PW No.3 during late night hours and early morning of 14.04.2002 about likewise of implication of the incident to the accused speaks volume about intention on the part of the relatives and neighbours of the deceased to implicate the respondent. Certain blood marks and contents received from electric switch and sample sent for analysis because blood is found, no attempt was made to take finger print is a major lacuna in the investigation, other connected events though tried by the prosecution by drawing various panchnamas and the manner in which, arrest of the accused is shown all leading together that the prosecution failed to prove its case beyond reasonable doubt and so was held by the learned trial judge resulting into acquittal of the respondent do not warrant any interference.
7. Heard the learned advocates appearing for the parties and on perusal of the entire record of the case in the context of the judgment and order of acquittal under challenged, we would like to refer to relevant oral evidence and documentary evidence along with the list of events which followed the incident Page 9 of 20 HC-NIC Page 9 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT for which, the offence was registered and efforts made by the Investigating Agency to bring culprit on the book. The oral as well documentary evidences are produced as under.
ORAL EVIDENCE
P.W. Name Note Exh.
No. No.
1 Dr.Janakkumar Odhavji (P.M.Doctor) 10
Madhak External Injuries
2 Jayantilal Parshottam Eye 35
Karaliya witness/Complainant
FIR Exh.36
3 Mulubhai Maledbhai Panch Witness for 41
Inquest Panchnama
4 Pravinbhai Vikrambhai Panch Witness for 43
Place of Incident
(09:10 to 10:10 dated
14.04.2002)
5 Harsukhbhai Panch Witness for 46
Chhaganbhai chappal (18:45 to
19:15 pm dated
14.04.2002) Exhibit -
45
6 Mohanbhai Kachrabhai Panch Witness for 48
Arrest Panchnama
(10:45 to 12:00 am
dated 16.04.2002)
Exhibit 49
7 Jayeshbhai Panch Witness for 57
Mahendrabhai Arrest Panchnama
10:45 to 12:00am
dated
16.04.2002)Exhibit 49
8 Dhirajbhai Naranbhai Resident of same 58
locality after
hearing voice (lady),
standing on raod
outside his house, he
had seen accused
running with knife
9 Rasilaben Vrujlal Hearsay and she went 59
wife of complainant's with complainant and younger brother her wife to the place of incident/house of Page 10 of 20 HC-NIC Page 10 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT the deceased 10 Shamjibhai Panch Witness for 60 Chhaganbhai Search and Seizure of the accused home -
recovery of clothes Exhibit - 61 11 Lilabhai Ukabhai Panch Witness for 62 Clothes of the deceased Exhibit - 63 12 Labhubhai Mohanbhai Map prepared by him 75 13 Jagmalbhai Savdasbhai Resident of same 90 locality and by profession teacher 14 Maldevbhai Vikrambhai Received complaint 95 Parmar from the complainant and made entry in station diary entry no.4 15 Subhashchandra Investigating Officer 104 Gunvanrai Raval DOCUMENTARY EVIDENCE Sr. D.E.List Particulars Exh.No. No. 1 P.M.Report (06:30 to 4 External 13 08:00 am) Injuries, Cause of Death 2 Inquest Panchnama Dead-body was 14 laying upward face west to east, injuries were found 3 Original Complaint - By PW No.2 - 36 FIR Jayantilal Parshottam Kalariya 4 Panchnama for place Blood stains at 44 of incident passage, electric switch, bed (khatlo) under bed (khatlo) etc. 5 Panchnama for seizure Taken sample of 45 of things collected blood through from the place of cotton swab etc. incident Page 11 of 20 HC-NIC Page 11 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT 6 Panchnama for chappal Both chappal found 47 of Accused from the place of offence and the same was smelled by Dog and there is report from the Dog Squad 7 Panchnama for Arrest Found knife from 49 the possession of the accused after arrest and minor blood stains were found on knife 8 Panchnama for place Found blood 61 of search and seizure stained soaked of the house of the clothes from the accused steel bucket and sample of water was taken from the bucket 9 Panchnama for clothes - 63 of the deceased 10 Map of the place of - 79 incident 11 FSL Serological Blood stains found 109 Report on the clothes of accused 12 Dog Squad Report Lead upto the 112 house of accused
8. The above evidence namely oral as well as documentary is to be seen in context of time and date of occurrence so recorded in the complaint and testimonies of the witnesses. The incident in question took place about 02 : 00 am on 14.04.2002, for which the complaint was lodged at 03:45 am i.e. early morning hours of the same day namely 14.04.2002. The complainant residing at Village Bavani Pipali of Taluka - Keshod borrowed motorbike of PW No.13 - a teacher of the same locality at 03 : 00 am and went to the nearest Keshod Police Station. That inquest Page 12 of 20 HC-NIC Page 12 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT panchnama was carried out about 04 : 30 to 05 : 15 am, even search and seizure of the accused-respondent house for recovery of the clothes of the accused was carried out around 05:45 to 06:15 am and dead-body of deceased Godavari was received by postmortem doctor - PW No.1 at 06:30 am and procedure of postmortem was completed by 08:00 am. At 09:10 am, FIR was received by the learned Judicial Magistrate First Class, Keshod.
9. The Investigating Agency, thereafter, promptly undertook further procedure of drawing panchnama of scene of offence around 09:10 to 10:10 am and even officer of FSL visited the place of offence and collected articles between 10:45 am to 12:00 pm. Thus, receiving of the FIR later on by the Judicial Magistrate First Class, Keshod left no room of doubt that the complaint was lodged in time by the complainant. The investigating agency, further, made efforts to trace out foot print of the accused based on recovery of chappals-footwear by deploying a sniffer dog with trainer and visited the place of the incident or scene of offence by 17 : 30 pm and tracking procedure was over by 18:30 pm. Immediately, panchnama for recovery of footwear-chappal was carried out and later on the accused was arrested on the next day i.e. 16.04.2002 at 10 :45 am and his arrest panchnama was drawn. Prior to arrest, the clothes of the deceased and blood samples were produced by the peon of CHC,Keshod and sealed muddamal articles were sent to FSL on 28.04.2002.
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10. The above events revealed that the investigating agency has undertaken not only scientific investigation, but made all efforts to complete the investigation by drawing various panchnamas. That PW No.14 who received the complaint and made entry in Station Diary being entry no.4 also deposed vide Exhi.95 and Investigating Officer - PW No.15 vide Exhibit 104 admitted without any omission or contradiction in the manner in which the statement made by the wittiness about the crime and involvement of the accused and remained unimpeached during their testimonies before the trial Court.
11. PW No.2 - Jayantilal Parshottambhai at Exhibit - 35 is a nephew of deceased Godavari, in his examination in para - 1 deposed to the extent of purpose of his visit to his native place in view of ailment of his father who was admitted in the hospital at Keshod. After discharge of his father, the complainant and his younger brother went to his native village and after late night dinner, they were talking with each other and went to sleep, at that time, he heard shouting of deceased Godavari around 02:00 am that accused namely Dilip Bachubhai Vaaghari was inflicting knife blows and suddenly, the complainant woke up and saw the accused inflicting knife blows on neck, chest and other parts of the body of Godavari. The above scene was witnessed by PW No.2 - complainant in the light which was on and immediately, the accused switched off the light and jumped out of the compound Page 14 of 20 HC-NIC Page 14 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT wall and escaped. That wife of the complainant brought out a key to unlock the door of front yard and thereafter, asked his aunt to open the door to which, injured Godavari responded for a while and after unlocking the door, she told about the incident of inflicting knife blows by the respondent - accused and collapsed. In the front yard of the house of Godavari, footwear of the accused were lying and thereafter, the complainant informed his uncle and other relatives and Sarpanch - PW No.3 who is also a panch-witness at Exhibit 14 and supported the case of the prosecution in the testimony. In the cross examination of PW NO.2, he has identified the article no.14 - knife - a weapon used for commission of crime and also footwear being article 13 and clothes of the deceased Godavari. In cross examination, the complainant admitted about the height of the compound wall between the house of the complainant and deceased Godavariben and explained that the criminal act on the part of the accused was visible as he had climbed over the stone lying nearby the wall and light was on. That borrowing of the motorbike of the teacher of the village - PW No.13 and approaching the nearest police station immediately to lodge the complaint etc., no discrepancy is noticed. That borrowing of motorbike is confirmed by PW No.13 - a teacher and owner of the bike. In the facts and circumstance of the case, except PW No.7, who is panch witness of arrest panchnama at Exhibit 49 only has turned hostile in his deposition before the Court, but all other panch witnesses namely inquest being PW NO.3, panch of offence - PW No.4, for recovery of Page 15 of 20 HC-NIC Page 15 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT chappal - PW No.5, for search and seizure of the clothes of the accused - PW No.10, for recovery of the cloths of the deceased - PW No.11, in their testimonies have fully supported the case of the prosecution.
12. Two other eye-witnesses - PW Nos.8 and 9 vide their testimonies at Exhibit nos.58 and 59 being residents of the same locality and wife of the complainant's younger brother, though hear-say witnesses, but supported the version of PW No.2 and no material contradiction, vital omission or no major discrepancy is noticed in their testimonies that leaves us to examine medico legal and FSL evidences of PW No.1 Dr. Janak Kumar Madhak - Medical Officer at CHC, Keshod confirms to have recorded the injury no.1 having length of 10 cm and widening of 3 cm horizontal shape in the middle of throat extending towards both the sides was sufficient enough for causing death of the deceased and in the lengthy cross examination stood by his version and knowledge about procedure to be carried out for autopsy and standard, authenticate books on medical jurisprudence. The above PW in his cross examination, opined that in case of a person who is asleep and such injury like injury no.1 is inflicted, the possibility of such person getting out of the bed and walk away a few steps is not impossible. Besides resistance to such injury or ailment vary strong person to person. The cause of death in the postmortem report referred to the injuries recorded in column no.17 of the postmortem Page 16 of 20 HC-NIC Page 16 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT report, therefore we have no hesitation in accepting the above medico legal evidence which corroborate the version of eye-witnesses including the PW Nos.2, 8 and
9.
13. In addition to the above, a careful perusal of FSL and serological report at Exhibit - 109 which contains analysis of the clothes of the deceased as well as the accused and control sample of earth and cotton mattress on which blood was found. That footwear, knife and cotton swap containing blood stain sent for FSL revealed the presence of blood Group 'A'. Only a few sample namely sample E - Control earth, Sample B - Water containing blood stain cloth of the accused remained undecided so far as blood of group is concerned. The serological report is produced as under.
Regional Forensic Science Laboratory, Gujarat State, Junagadh.
Report no. -/RFSL/TPN/Serology/2002/B/272, Dtd..... Crime Register No. 65 / 02 Date - 14-04-2002. U/s. 302 Indian Penal Code Police Station - Keshod District - Junagadh.
Report No. and date be invariably stated at the time of summons and correspondence.
Results of the Serological Analysis Sample Samples Nature of Group of the no. the blood Blood A/2 trouser Human A (A) B water Human Undecided C cotton swab Human A (A) D sand Human A (A) Page 17 of 20 HC-NIC Page 17 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT E controlled sand == Proper for control F sand Human A (A) G cotton swab Human A (A) H cotton swab Human A (A) I controlled cotton == Proper for swab control J mattress Human A (A) K mattress Human A (A) It is not possible to give the blood group as the Antigenicity could not be decided.
Sample Samples Nature of Group of the
no. the blood Blood
L/1 Chappal ( of Right Human A (A)
leg)
L/2 Chappal ( of Left Human Undecided
leg)
M/1 Knife Human A (A)
M/2 Scabbard Human A (A)
N/1 petticoat Human A (A)
N/2 blouse Human A (A)
N/3 Sari Human A (A)
O Liquid blood Human A (A)
P Liquid blood Human A (A)
Q Swab of saliva === Undecided
Sd/- C. M. Patel
Assistant Director
cum Assistant Chemical Examiner
to the Government of Gujarat,
Regional Forensic Science
Laboratory,
Junagadh.
14. The reasonings of the learned trial Court about failure to prove the case beyond reasonable doubt by the prosecution is wholly unsustainable and illegal.
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Piece-meal evidence appreciated by the learned trial Court and testimonies of the eye- witnesses as a whole was not analyzed in proper perspective. The case on hand is the outcome of prompt and timely actions taken by the investigating Agency in which, the complaint was immediately registered to which the complainant has deposed in his testimonies and medico legal and FSL reports corroborating version of the eye-witnesses and even the police personnel recording the complaint and undertook investigation, nowhere left any lacuna in the investigation renders interference by this Court in exercising of the appellate powers under Section 378 read with Section 386 of the Criminal Procedure Code, 1973 and we find that the judgment and order of acquittal under challenge passed by the learned Sessions Judge, Junagadh in Sessions Case No.74 of 2002 on 28.06.2006 deserves to be reversed and we satisfied that the case is proved beyond reasonable doubt by the prosecution about guilt of the accused based on the evidence to which, we have referred to and discussed in the earlier paragraphs and accordingly, we find that the prosecution has made out a case to convict the respondent.
15. For the reasons stated hereinabove, we find that the judgment and order of acquittal dtd.28th June, 2006 passed by the learned Sessions Judge, Junagadh in Sessions Case No.74 of 2002 is wholly illegal and unsustainable and deserves to be interfered with and is hereby quashed and set-aside and we also find that the prosecution, based on the evidence as above, has Page 19 of 20 HC-NIC Page 19 of 20 Created On Sat Oct 07 06:59:22 IST 2017 R/CR.A/2066/2006 JUDGMENT proved its case beyond reasonable doubt that the respondent has committed murder of deceased Godawariben Laxmidas and accordingly, is convicted under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo rigorous imprisonment for further one month. The respondent is given eight weeks to surrender before the concerned Jail Authority.
The appeal is allowed.
(ANANT S.DAVE, J.) (R.P.DHOLARIA,J.) mmshaikh Page 20 of 20 HC-NIC Page 20 of 20 Created On Sat Oct 07 06:59:22 IST 2017