This appeal arises out of judgment and order rendered by Sessions Court, Vadodara at Chhota-Udepur in Sessions Case No.45 of 2005 on 15.06.2006 convicting the appellant for the murder of Kurmabhai Thavariabhai by inflicting 'Paliya' blows on 19.05.2005 in the filed of Makadiabhai situated in the outskirts of village Timla. 2. The brief facts of the case are that the deceased was staying with Pangaliben, who happens to be maternal aunt of deceased Kurmabhai. As the appellant could not pay the customary amount, the lady was taken back by her brother and the deceased had accompanied them. The appellant was, therefore, aggrieved against him. The appellant keeping that in mind, attacked the deceased with a 'Paliya' at about 21.00 hours on 19.05.2005 when the deceased was passing by the field of Makadiabhai. The appellant inflicted as many as four blows with 'Paliya' and caused his death. FIR was lodged in this context with Rangpur Police Station, on the basis of which, the offence was registered and investigated. At the end of the investigation, the police filed charge-sheet in the Court of Judicial Magistrate, First Class, Chhota-Udepur, who, in turn, committed the case to the Court of Sessions and Sessions Case No.45 of 2005 came to be registered.
2.1 Charge was framed against accused at Exh.4 for offences punishable under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and came to be tried. The trial Court, ultimately, considering the evidence led by the prosecution, convicted the accused – appellant for offence of murder punishable under Section 302 of the Indian Penal Code and sentenced him to rigorous imprisonment for life with fine of Rs.100/-, in default, further rigorous imprisonment for one month. The trial Court also convicted him for offence punishable under Section 135 of the Bombay Police Act and sentenced him to rigorous imprisonment for four months with fine of Rs.50/-, in default, to undergo rigorous imprisonment for three months. The trial Court observed that order is passed under Section 428 of the Code of Criminal Procedure in respect of benefit of set off. Hence, this appeal.
3. We have heard learned advocate Mr. Darji for the appellant and learned APP Mr. Soni for the respondent.
4. Mr. Darji submitted that the trial Court has committed an error in appreciation of evidence by placing undue reliance on evidence of Chaturiben. He submitted that the incident occurred during night in a filed where there was no electricity and therefore, Chaturiben could not have identified the assailants as she claims to have done. She is the sole witness to the incident. The other two witnesses viz., Jaglabhai, Exh.9 and Bhaglabhai, Exh.13, who were also projected as eye-witnesses, have not supported the prosecution case. The trial Court ought to have held that the prosecution failed to prove the case against the accused – appellant. The judgment, therefore, may be set aside, so also the conviction.
5. On the other hand, learned APP Mr. Soni has opposed this appeal. According to him, though Jaglabhai and Bhaglabhai have not supported the prosecution case, Chaturiben is an independent witness, who has no reason to falsely implicate the accused appellant. She knew the victim and the appellant prior to the incident. According to him, the incident was seen by her in the moonlight. She is a villager and she used to see during night, without aid of electric light. Her version is supported by the panchnama of place of incident and a strong circumstance, in form of the clothes of accused being stained with blood of the deceased. Learned APP also submitted that the weapon has been discovered by the accused. The judgment is, therefore, well-reasoned, well- founded and does not call for any interference in exercise of appellate jurisdiction. This Court may, therefore, dismiss the appeal.
6. We have gone through the record and proceedings in context of rival submissions.
7. The prosecution has projected PW1 - Jaglabhai, PW2 – Chaturiben and PW4 – Bhaglabhai, Exh.9, 10 and 13 respectively, as eye-witnesses. PW1 and PW4, who are twin brothers, have chosen not to support the prosecution case and were treated as witnesses hostile to the prosecution. However, Chaturiben, Exh.10, has whole heartedly supported the prosecution case. She says that she was sitting on her 'otta' when she heard some unusual sound. She, therefore, got up and looked in that direction and found the appellant assaulting the deceased with 'Paliya'. She states that she saw that because of moonlight. As it emerges from the cross- examination, the distance between her house and the place of incident is 30 feet and she assails that she could see the incident. It also emerges that she knew both, the deceased as well as the appellant, even prior to the incident. She has stood-by her version in examination-in-chief while facing the test of cross-examination. There is no reason to disbelieve her version. The evidence has come so naturally as would come from a rustic villager. We have no reason to doubt her version. She clearly implicates the appellant. However, since she is the sole eye-witness, we examine the case from different angle and look for circumstantial evidence. The circumstantial evidence also points at the appellant. The circumstances are that, the accused, when arrested, was found to be wearing bloodstained clothes. The clothes were sent to the FSL and were found carrying blood of the group of the deceased i.e. human blood 'AB'. There was no injury on person of the accused when he was arrested and therefore, there is no chance of that blood being of his own and no explanation has come from the accused about the presence of blood on his clothes. This circumstance lends pretence to the version of eye-witness Chaturiben.
8. The panchnama of place of incident also lends support to the version of eye-witnesses to the incident that the incident was found to have occurred at the very place where the eye-witness claims to have seen the occurrence occurred.
9. To be doubly sure, we just examined what was the day according to Indian calender and we found that it was 11th day of first half of Vaishakh and the moon was lit by almost 85%. Therefore, the version of the eye-witness that she saw the occurrence in moonlight is further corroborated.
10. Having found the above evidence on record, in our opinion, trial Court cannot be said to have committed any error in convicting the appellant, because, the appellant had attacked the deceased with a deadly weapon like 'Paliya' and had caused injuries on vital part of body like head. There could not have been any other intention except to cause death.
11. We do not, therefore, find any reason to interfere with the judgment and order. The appeal must fail and hence, stands dismissed.
[A.L. Dave, J.] [Paresh Upadhyay, J.] #MH Dave