Point of Law: No dispute about the correctness of IEMI of mobile instrument belonged to the present appellant and it was subsequently used by another hostile witness, who used the said mobile instrument by different sim card, who has not supported the case of the prosecution

JUDGMENT :

A. J. DESAI, J.

1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973, the appellant – accused has challenged the judgment and order of conviction dated 12.5.2014 passed by learned 9th (Adhoc) Additional Sessions Judge, Rajkot (hereinafter referred to as ‘the learned Trial Court’) in Sessions Case No.124 of 2009 by which the learned Trial Court has convicted the appellant for the offence punishable under Section 302 of Indian Penal Code and ordered to undergo life imprisonment and directed to pay fine of Rs.5000/- and in default of payment of fine, further simple imprisonment of six months. The appellant was also convicted for the offence punishable under Section 450 of the Indian Penal Code and ordered to undergo simple imprisonment for a period of five years and fine of Rs.2,000/- and in default of payment of fine, further simple imprisonment for a period of two months. The appellant was also convicted for the offence punishable under Section 188 of the Indian Penal Code and ordered to undergo simple imprisonment for a period of fifteen days and fine of Rs.100/- and in default of payment of fine, further simple imprisonment for a period of one day. The appellant was also convicted for the offence punishable under Section 201 of the Indian Penal Code and ordered to undergo simple imprisonment for a period of three years and fine of Rs.1,000/- and in default of payment of fine, further simple imprisonment for a period of one month. All the sentences were ordered to run concurrently.

2. The appeal came to be admitted by oral order dated 18.11.2014. The Records and Proceedings along with Paper-book is sent by the learned Trial Court.

3. An application for suspension of sentence being Criminal Misc. Application No.1 of 2021 came to be filed at the instance of the appellant for suspending the sentence mainly on the ground that the applicant is behind bar since more than 11 years. The said application was disposed of by this Court vide order dated 29.1.2021 directing the Registry to list the appeal for final hearing. Accordingly the present appeal is listed for hearing.

4. We have heard Mr. J. V. Japee, learned advocate appearing for the appellant, Mr. Mitesh Amin, learned Public Prosecutor appearing for the respondent – State, Mr. Y. S. Lakhani, learned Senior Counsel assisted by Mr. Tushar M. Gokani and Mr. Pratik Jasani for the original complainant.

5. The short facts arise from the record are as under :-

5.1 That one Dayabhai Kotecha, who is a Businessman in construction having his office at First Floor, Star Plaza in Phulchhab Chowk at Rajkot was attacked in the said office on 25.3.2009 at around 19.30 hours with a knife by the appellant in presence of several staff members of Dayabhai including the complainant. The said Dayabhai was initially shifted to Wockhardt Hospital in 108 Ambulance. However, subsequently, he was shifted to Rajkot Civil Hospital where he was declared dead.

5.2 One of the employees, namely, Dipak Chunibhai Bhayani who happened to be driver of deceased Dayabhai, lodged an FIR on the same day i.e. 25.3.2009 at around 21.35 hours near Post Mortem Room, Civil Hospital, Rajkot wherein he declared that when he was sitting outside the chamber of deceased Dayabhai, the other staff member, namely, Arunbhai, Bakulbhai and office boy Sunny were sitting there. At that time, one broker, namely, Bakul Udani went in the chamber of Dayabhai and was sitting inside. Thereafter, at around 19.45 to 20.00 hours, the appellant, resident of village Anandpar, Tal. Kalavad came in the office and inquired with him about Dayabhai. The appellant was told that one person is there and, therefore, he was asked to sit outside the chamber of Dayabhai. He waited there for five to ten minutes and thereafter on his own, he went inside the chamber of Dayabhai. Thereafter, the said Bakulbhai Udani came out of the Chamber of Dayabhai and when he was coming out, Dayabhai was screaming for help and when he