On the basis of the evidence, the High Court found that the appellant was the prime accused being responsible for the murder of Abdul Karil Ali Mohmed.
The trial companyrt has companymitted also serious error in giving benefit of doubt to the appellant A 1 Allarakha.
iii Identity of the Muddamal articles is doubtful as the witnesses have number been shown such items and have number identified iv Identity of one more witness Manudo is also doubtful and in his place somebody is placed as Manudo in view of the evidence led by the accused persons.
The facts of the case are that on 27th March, 1989 at about 7.30 p.m., the appellant along with Ramji Khamisa Mansuri went to the Tea Stall of the deceased armed with Dharia.
Ali Mohdmed Husein PW4 , companyplainant, Rajesh Velji PW5 , Shashikant PW6 and Mamudo Abdulla PW9 were cited eye witnesses.
He was shifted to the Hospital but he succumbed to the injuries.
The trial companyrt discarded the testimony of the eye witnesses and acquitted the accused.
The trial companyrt has companymitted thus serious error of law in placing unnecessary reliance on such insignificant, unsustainable and micro level discrepancies and companytradictions which as such do number affect the main companye of the prosecution story and has failed to rely on the evidence of 3 eye witnesses whose evidence has remained unimpeachable on the main story of the prosecution that it was numbere else but only A 1 Allarakha who did companymit murder of deceased Abdul Karim by giving him successive blows with dhaia in a public place near the tea stall of the deceased and that too for a motive for pecuniary gain.
The appeal filed against the judgment of acquittal was allowed by the High Court vide judgment impugned in this appeal holding the appellant guilty for the companymission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/ In default of payment of fine, the appellant has to undergo further rigorous imprisonment for three years.
On companypletion of the investigation, charge sheet was filed against the accused persons.
He inflicted four blows to the deceased with that Dharia, as a result of which deceased Abdul Karim Ali Mohamed sustained serious injuries on head and other portions of his body.
The prosecution examined 10 witnesses.
The investigation carried out by the investigating officer Mr.Makwana is number truthful but is shaky and, therefore, it creates cloud of doubt.
It appears that the trial companyrt mainly relied upon the following aspects for acquitting the accused persons That Exh.36, entry No.20/1989 in the police station diary which came to be recorded on the information given by the medical officer of Bhachau Hospital is the first information report under Section 154 of the Code and number the companyplaint FIR lodged by the companyplainant Ali Mohmed at exh.30.
Thereafter the statement of Ali Mohmed was recorded in the police station and the FIR registered which was marked as Exhibit 30.
ii That the time of death of the deceased Abdul is number established, hence, prosecution story is doubtful.
vii Non cognizable companyplaint lodged by A 1 and produced at exh.33 is number admissible in evidence as it was given to the police officer investigating officer during the companyrse of investigation viii the companytradictions in the evidence of witnesses are also creating doubt on the veracity of the prosecution case.
vi Statement of some of the witnesses by the police under section 162 are recorded late and, therefore, there was chance for manipulation.
As Rajesh Velji PW5 did number fully support the case of the prosecution, he was declared hostile.
At about 7.45 p.m. a message was received at Police Station Bhachau from the Medical Hospital stating that Abdul Karim Ali Mohamed who has been brought to the Hospital had sustained serious injuries and was being shifted to Bhuj Civil Hospital.
The intimation was recorded as Crime Entry No.20 of 1989 in the Police Station diary.
SETHI,J. The appellant was charged for the offences punishable under Sections 302 and 504 read with Section 114 of the Indian Penal Code in Sessions Case No.57 of 1989 and after trial was acquitted by the learned Sessions Judge on 11.9.1990.
