Decided on August 20,1979

STATE Respondents


D.C.GHEEWALA, M.K.SHAH - (1.) The incident happened on 9th June 1978 near the Naka of Navgadhia Sheri in Golvad at Surat wherein one person namely deceased Kanchanlal alias Ichchhu Bhagwandas lost his life and two persons namely complainant Mohanlal Bhagwandas who is the brother of the deceased and witness Jashwant Hiralal who is the cousin of the deceased received injuries by means of a sharp cutting instrument.
(2.) The person who is alleged to have caused the death of the deceased and inflicted those injuries on the two injured witnesses a young man aged 21 years of age named Ashok Atmaram Rana was put up for trial before the learned Additional Sessions Judge Surat in sessions case No. 189 of 1978 and he has been convicted of the offences under secs. 302 326 and 324 I.P.C. and has been sentenced to imprisonment for life R.I. for two years and R. I. for six months for the aforesaid offences respectively with a direction that all the substantive sentences shall run concurrently. He was however acquitted for the offence under sec. 135 of the Bombay Police Act for which also he was tried.
(3.) Mr. Chinoy formulates his submissions as under : 1 Two of the three eye withesses are related to the deceased one being his brother the other being his cousin and the third witness is the neighbour of the deceased and as is the case of the defence all these eye witnesses including the neighbour beloaged to the gang of Hiralal who was a bootlegger and who suspacted the accused being a police informant with regard to the illegal activities of this gang. In this state of the evidence unless there is independent corroboration to the testimony of these witness no reliance could be placed on their evidence and the learned Judge was therefore in error in recording a finding of guilty against the accused mainly relying on the evidence of these three eye witnesses. 2 This was either a case of mistaken identity which is likely to occur because at the place of the incident which had happened at about 9. 45 p. m. there was practically no light; and in the alternative the complainant and others who were on inimical terms with the accused have falsely implicated the accused in this offence. 3 The learned Additional Sessions Judge committed a grave error in relying on the evidence of P. I. Wagela inspite of the fact that the panchas had turned hostile and did not support the prosecution. 4 The prosecution witnesses have failed to explain the injuries on the accused and therefore the prosecution case should not have been believed. 5 The learned Additional Sessions Judge committed an error in admitting the statement of complainant Mohanlal recorded by the police at Maskati Hospital as an F. I. R. because earlier to this point of time P. I Waghela had already received information about a cognizable offence having been committed at the scene of the incident and that should have been reduced into writing and treated as F. I. R. 6 The prosecution has failed to establish that the motive for the crime was as alleged by them viz. the previous incident about whistling by the accuseds sister Madhu and that therefore the prosecution has not proved beyond reasonable doubt their case. ;

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