STATE OF GUJARAT Vs. SANJAY DANGAL BADGUJAR

JUDGEMENT

(1.) The learned Joint District Judge And Addl. Sessions Judge, Fast Track Court, Bharuch, while disposing of Sessions Case 16 of 2000 dated 4.9.2003 convicted the accused Sanjay Dangal Badgujar of Surat for the offence under Section 302 of the I.P.C. and on hearing on the point of sentence had imposed capital punishment to the accused and as per the provisions of Section 366(1) of the Cr.P.C. the order of the learned trial Judge came for confirmation and accordingly the Confirmation Case No.2 of 2003 was received by the Registry of this court and as per the order passed by the Division Bench earlier on 18.11.2003, the Division Bench has issued notice to the District Magistrate, Bharuch for preparation of requisite paper book and including the Appeal Memo in respect of the Appeal filed by the accused being Criminal Appeal No.1167 of 2003 and thereafter the Confirmation Case was fixed in view of the order passed on 4.3.2004. The learned trial Judge had also convicted the accused for the offence under Section 307 of the I.P.C. and the accused was ordered to suffer R.I. for life. The convict accused had also filed Appeal being Criminal Appeal No.1167 of 2003 challenging the order of conviction and sentence in respect of the offence punishable under Section 302 as well as for the offence under Section 307 of the I.P.C.

(2.) We have heard Mr.K.J.Shethna, learned senior advocate, who appeared for the accused in the Confirmation Case as well as in Appeal filed by the appellant accused challenging the order of conviction and sentence passed by the learned trail Judge who in turn had taken us through the paper book consisting of oral and documentary evidence and the judgment under challenge. Mr.K.P.Raval, learned Addl.P.P., who appeared on behalf of the State, has in turn also during arguments taken us through the relevant evidence led by the prosecution and the judgment under challenge.

(3.) Mr.Shethna, the learned counsel appearing for the appellant accused, has vehemently urged that looking to the order passed by the learned trial Judge relying upon the evidence led by the prosecution according to him that the learned trial Judge has misread the evidence, which resulted into miscarriage of justice. He has also commented upon while taking us through the evidence of the prosecution witnesses in the form of evidence led, who had witnessed the incident as well as the witnesses who supported the prosecution case and the evidence in the form of medical evidence led by the prosecution as according to him that the reliance placed by the learned trial Judge by accepting the prosecution case by recording finding that the appellant accused is responsible for the murder of Harishbhai Pitambarbhai Chaudhari and Maheshbhai Ramanbhai Desai by holding that the prosecution has established that it is only because of the successive firing from the service rifle allotted to the accused and with motive and with knowledge had caused death of Maheshbhai Ramanbhai Desai as well as of Harishbhai Pitambarbhai Chaudhari and thereby accused has committed murder of Maheshbhai Ramanbhai Desai as well as of Harishbhai Pitambarbhai Chaudhari. Such finding recorded by the learned trial Judge on the basis of the evidence adduced by the prosecution according to Mr.Shethna has resulted into miscarriage of justice. Similarly it is also his contention that the learned trial Judge has also committed error by holding that accused had with knowledge and with intention to cause death fired from the service rifle at the place knowing that it will cause death as well as by causing such injury that will cause death and further that because of such firing from the service rifle the accused had with knowledge and intention caused bullet injury on Madhuben Himatbhai Thakore and thereby accused had caused injury to Madhuben and thereby intended to commit murder of Madhuben. Mr.Shethna has also placed reliance upon various decisions of the Apex Court, which we will refer to later on and according to him that in light of the decisions of the Apex Court, the learned trial Judge was not right in imposing capital punishment and this case not being a rarest of rare case for which the trial Court was required to impose capital punishment. He contended before us that the order of conviction of the accused for the offence under Section 302 as well as for the offence under Section 307 of the I.P.C. deserves to be set aside. However, alternatively it is his submission that if this court on appreciating the evidence finds that there is a case of murder of Maheshbhai Ramanbhai Desai, however so far as the finding recorded by the learned trial Judge in respect of murder of advocate Harishbhai Pitambarbhai Chaudhari is concerned as well as injury caused to Madhuben, the learned trial Judge was not justified in convicting the accused for the offence under Section 302 as well as for the offence under Section 307 of the I.P.C. and the capital punishment imposed by relying upon that the accused had also committed murder by using fire arm i.e. from his service rifle by causing injury to Advocate Shri Chaudhari, this is not a case in which the capital punishment is required and at the most it is a case in which the death penalty is to be commuted by sending the accused for R.I. for life. So far as the conviction and sentence imposed for the offence punishable under Section 307 of the I.P.C. in respect of the injury caused to injured Madbhuben is concerned, according to Mr.Shethna that as found from the evidence it is very clear that the accused cannot be convicted for the offence under Section 307 of the I.P.C. and in light of the evidence, at the most one can say that Madhuben had sustained bullet injury and that can be attributed to the appellant by committing that it is only an offence one can say that it is an offence under Section 304A of the I.P.C. and the conviction of the accused under Section 307 of I.P.C. as well as the sentence imposed by the learned trial Judge on that count deserves to be set aside and deserves to be altered for lesser offence.