ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA)

1. This appeal has been filed by the appellant-

original accused against the judgment and order of conviction dated 8-9-1997 passed by the learned Addl. Sessions Judge, Baroda, in Sessions Case No.120 of 1995 sentencing the appellant to undergo imprisonment for life and to pay fine of Rs.3,000/- in default, to suffer imprisonment for one year under Sec.302 of IPC.

2. The case of the prosecution in short is that the complainant Ahsanbhai Nomanbhai Jinvala and deceased Kanubhai Chimanlal Parikh were partners of Roopan Cinema situated at Harni Road, Baroda. On 1-7-1995 at about 10.00 a.m., the deceased was sitting in his office of Roopam Cinema and the Booking Clerk Abdul Mahmad Shaikh was sitting outside his office. When said Abdul Mahmad entered into the office of deceased Kanubhai Chimanlal Parikh, he found him in injured condition having upper portion of his body lying on the table. As said Abdul Mahmad was frightened, he left the cabin and went to the ground floor and informed Ahsanbhai, the partner of said Kanubhai and Sharadbhai Narayanrav Ahir, another Booking Clerk about the same and, therefore, they went to the office from where they took him to the hospital in an autorickshaw. While they were travelling in the rickshaw, as the injured was not able to speak, he informed them by sign about the assailant and, therefore, Ahsanbhai lodged the complaint before the police at hospital. The complaint was registered for the offences punishable under Secs.452, 392, 197, 307 of IPC. During the course of investigation, as the victim succumbed to the injuries, Sec.302 of IPC was added. As there was allegation regarding robbery of Rs.9,500/-, Secs.392 and 397 of IPC were also added. The investigating officer investigated the matter, drew panchnama of scene of offence, recorded statements of various witnesses, collected evidence and sent it to FSL for analysis. As the victim succumbed to the injuries, inquest panchnama was drawn and also made arrangements for sending the body for post mortem. On arrival of post mortem report and FSL report, same were kept with the investigation papers. The accused was arrested and at the end of investigation, charge sheet was filed into the court below.

3. As the case against the accused was triable exclusively by the Sessions Court, court below committed the case into the Court of Sessions at Baroda where it was numbered as Sessions Case No.120 of 1995. The learned Sessions Judge framed charge against the accused. The accused appeared before the Court and pleaded not guilty to charge and prayed for trial.

4. To prove the guilt against the accused, prosecution examined Abdulbhai @ Karimbhai @

Mahmadbhai Shaikh, P.W.No.1 at Ex.10, the person serving in the Roopam Cinema as Booking Clerk and claimed to be the first person who went into the cabin of the victim and whom the deceased informed regarding the assailant by way of sign due to severe injury on his throat; Sharadbhai Narayanrav Ahir, P.W.No.2 Ex.11, another person serving in the said Talkies as Booking Clerk; Mahmoodmiya Allarakha Shaikh, P.W.No.3 Ex.12, who claimed to be an eye witness but did not support the say of prosecution and has been declared as hostile; Mahmadmiya Hussainmiya Jamadar P.W.No.4 Ex.13, who also claimed to be an eye witness having met the deceased after the incident but did not support the say of the prosecution and has been declared as hostile; B.K.Garasiya, P.W.No.5 Ex.14, duty Police Constable, who received vardi from Nandubhai Alambhai from the Government Hospital over phone and same was registered at Ex.15; Dushyantbhai Manilal Solanki, P.W.No.6 Ex.16, who did not support the case of the prosecution and has been declared as hostile; Vikrambhai Somabhai Solanki, P.W.No.7 Ex.17, an employee of the Talkies who did not support the case of the prosecution and has been declared as hostile; Bachubhai Jatanbhai Rathwa, P.W.No.8 Ex.18, who was serving as Writer to PSI Shri Pa