DHARMSHI RAMABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present appeal arises out of a judgment and order rendered by learned Additional Sessions Judge, Jamnagar, in Sessions case No. 25 of 1999, on 30th July, 1999, convicting the appellant under Section 302 of the Indian Penal Code and Section 25(1)(A) of the Arms Act for the offence of murder of Dharnant Arjan Aher with a muzzle loading gun on 12th November, 1998, in the outskirts of Village Nandana of Jamjodhpur Taluka. The appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default thereof, to undergo simple imprisonment for six months for the offence of murder punishable under Section 302 of I.P.C. He was also ordered to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default thereof, to undergo simple imprisonment for one month for the offence punishable under Section 25(1)(A) of the Arms Act.

(2.) The appellant is alleged to have pledged his wrist watch with deceased-Dharnant Arjan Aher for Rs. 50/-. On the day of the incident, while Dharnant was talking to his cousin, Alsibhai Bhimsibhai, at about 8.00 P.M., the appellant approached him and demanded return of the wrist watch saying that he would pay Rs. 50/- later on. Deceased-Dharnant turned down his demand and, in that, it appears that there was an altercation. The appellant fired a shot on the deceased from the gun that the appellant was carrying with him and the deceased succumbed to the injury sustained by him in chest from the gunshot. The appellant went away therefrom as Alsibhai stood there dumbstruck. Alsibhai then went to Dhrafa Police Station, which is at a distance of about 16 kms. and lodged an F.I.R., which is at Exhibit 25. On the basis of the F.I.R., offence was registered and investigation started. The Investigating Agency, having found sufficient material against the appellant, filed charge sheet against him in the Court of learned Judicial Magistrate, First Class, Jamjodhpur, who, in turn, committed the case to the Court of Sessions and Sessions Case No. 25 of 1999 came to be registered.

(3.) Learned Advocate, Mr. Supehia, appearing for the appellant submitted that the prosecution case depends on evidence of Alsibhai Bhimsibhai, who poses as an eye-witness. Mr. Supehia submitted that Alsibhai is cousin of the deceased and is, therefore, an interested witness. He also submitted that from the medical evidence it is clear that there was blackening around the entry wound on person of the deceased, which would indicate that the shot was fired from a very close range. This would indicate a possibility of a scuffle and, in turn, a possibility of an accidental fire resulting into death of the deceased. Mr. Supehia, alternatively, submitted that there was an altercation and the appellant is alleged to have fired the gunshot on being provoked because of refusal on part of the deceased to return the wrist watch. The case, therefore, would fall in the category of culpable homicide not amounting to murder and, therefore, the appeal may be favourably considered.