IN THE HIGH COURT OF JUDICATURE AT
AHMEDABAD IN THE CRIMINAL
APPELLATE
JURISDICTION
CRIMINAL
APPEAL NO 290 OF 2020
IN
SESSION
CASE NO. 123 OF 2020
(IN
AHMEDABAD POLICE STATION C.R. NO. 99 OF 2020)
DIST:
AHMEDABAD
ABC ….Appellant
Versus
State of Gujarat
….Respondent
Index
|
Name |
Page
No. |
|
Appeal |
3 |
|
Annexure
1 |
9 |
|
Annexure
2 |
10 |
|
Annexure
3 |
12 |
Synopsis
|
21.02.2020 |
ABC
and KBC were having Rivalry in Transport Business. On 22nd
February 2020. KBC was found dead in front of ABC’s Farmhouse in his own car
at 2 pm in the afternoon. |
|
21.02.2020 |
FIR
was registered in XYZ Police Station Ahmedabad on 21 February 2020. Police
came name made panchnama and recovered the body. |
|
01.03.2019 |
The
fingerprint of ABC was found on the bottle in the car of KBC. He was arrested
on 01/03/2019. |
|
12.12.2020 |
He
was sentenced to Life Imprisonment on 12/12/2020 by Learned Session Judge A.
Kumar. |
APPEAL AGAINST CONVICTION U/S
374(2)
OF
Cr.P.C ( Punishment for Murder)
IN
THE HIGH COURT OF JUDICATURE AT AHMEDABAD
IN
THE CRIMINAL APPELLATE JURISDICTION
CRIMINAL
APPEAL NO 290 OF 2020
IN
SESSION
CASE NO. 123 OF 2020
(IN
AHMEDABAD POLICE STATION C.R. NO. 99 OF 2020)
DIST:
AHMEDABAD
ABC, 30 yrs
A-12, Basant Vihar Colony, XYZ,
Ahmedabad, 380009
Presently in Judicial Custody-
Ahmedabad Central
Jail ……….Appellant
Versus
State ……….Respondent
IN
THE MATTER OF CRIMINAL APPEAL UNDER
SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE
AND
IN
THE MATTER OR ORDER OF SENTENCE PASSED BY
THE
LEARNED TRAIL JUDGE IN SESSION CASE NO 123
OF
2020, AWARDING LIFE IMPRISONMENT FOR ………
OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
To,
The Honourable Chief Justice
And Other Honourable Companion Justices
Of the High Court of Judicature,
Ahmedabad.
THE
HUMBLE APPEAL OF THE ABOVENAMED APPELLANT UNDER SECTION 374(2)
OF
THE CODE OF CRIMINAL PROCEDURE, 1973
MOST
RESPECTFULLY SHEWETH:
On behalf of the Appellant, it is respectfully
stated and submitted, as under:-
1. That
the Appellant was prosecuted in the court of Sessions, Ahmedabad for the
offence punishable under Section 302 of IPC vide C.R. NO. 99 Of 2020. On
conclusion of the Trial, the appellant was convicted by the Learned Trial Judge
the Appellant was sentenced to suffer life imprisonment. ( Hereto annexed and
marked as Exhibit-A is the copy of Judgement and Order dated 12.12.2020 passed
by the Ld. Session Judge, Arun Kumar in Session case no 123 of 2020.) (Annexure-1)
2. The
story of the prosecution is which is reflected in the Judgement and Order passed
by the Judge is as under:-
There was rivalry between the
deceased and the appellant in the business of transport. Deceased had a
transport business in the same city. The appellant gave a party at his on 22/02/2020 where all the person of
Transport business and other friends were invited. The location of the party
was farmhouse at the outer location of the city. The deceased was also attended
the party, the party was going on up to 2.00 PM. Later on, the deceased was found dead in his
card near the farmhouse of the appellant. . According to one of the Prosecution
Witness who has attended the party gave a statement: “Everyone had left the farmhouse
at 2.00 PM but the deceased and the appellant remained there in the farmhouse.”
The forensic report said that fingerprint of the appellant found on the car of
the accused. The Post-mortem report said that the reason for death is “poison
in the drink”. The deceased was habitual drinker of alcohol. There are two bottles
of alcohol found in the car of the deceased.” The accused was sentenced to Life
Imprisonment on 12/12/2020 by Learned Session Judge Arun Kumar.
3. Being
aggrieved by the aforesaid Judgement and Order dated 02.01.2020, the Appellant
begs to prefer to prefer this Appeal on the following amongst other grounds:-
GROUNDS
a) That
the Judgement and Order is contrary to law and the material on record and ,
therefore , the finding arrived at are vitiated as illegal and bad in law and
therefore the judgement is to be set aside.
b) That
while appreciating the evidence on record the Learned Trail Judge erred in law,
as a result appellant was convicted wrongly under Section 302 of IPC.
c) That
the Learned Judge in the given case ignored the lacunae in evidences presented
by the prosecution. Investigation Officer had not done the investigation
properly as there was many errors in Charge sheet filled by him, the
Panchanama’s of scene were not attested by proper witnesses, the fingerprint of
appellant was not found anywhere on the body of deceased, the car was not
seized at the proper time from the crime scene, hence the Investigation was
improper.(Annexure-2) (Annexure-3)
d) That
the Learned Trail judge he muddammal article produces was not properly sealed
and was not identified by the panchas of panchanama., that were sealed after
recovering from the crime scene.
e) That
the Learned Trial Judge ought to have appreciated the article seized from the
crime scene was not properly sealed and when it was identified by the
(Prosecution Witness 1), he denied for the same and became hostile.
f) That
the Learned Trial Judge ought to have appreciated that the evidence of
(Prosecution Witness 2) Investigation Officer stated in his statement that as
there were no panchas for panchanama Constable was made witness in the
Panchanama therefore panchanama cannot be relied on and it takes away the
credibility of Panchnanama as evidence
g) That
the Learned Trial Judge ought to have appreciated the evidence that the last
person in the party was Appellant and Deceased but ignored the evidence which
proved the presence of Appellant at the office during the whole night, for the
same Defence Witness 1 gave his statement.
h) That
the Learned Trial Judge ought to have appreciated the Investigation Officer in
his statement stated that the car was recovered form road near farmhouse of the
Appellant but the address in panchanama does not collaborate the same, the
credibility of such statement cannot be accepted.
i) That
the Learned Trial Judge ought to have appreciated that the presence of
Appellant at his farmhouse, but it is humanly impossible to be present at two
places at the same place. As there was no eyewitness for the same to prove the
presence of Appellant at the crime scene
j) That
in the absence of cogent, corroborative, reliable, admissible, clear it is not
fair to convict Appellant on the basis of such evidences and interested witness
in the matter.
k) That
the Learned Trial Judge’s Judgement and Order is unsustainable and bad in law
and deserve to be set aside.
4. Appellant submits that there was not any other Appeal has been filed regarding the impugned Judgement and Order, either before this Honourable Court and in Supreme Court regarding this matter.
5. That the Appellant crave leave to refer
and to rely upon the various authorities and submissions made by the appellant
in this matter
6. That the Appellant crave leave to refer
and to rely upon the charge sheet and other exhibited Document in support of
the issue of this matter.
7. That the Applicant craves leave to add,
amend, delete, change, alter, modify any of the foregoing para with the
permission of this Hon’ble Court.
8. That the Appellant submits that the Appeal
was files within the prescribed time limit according to law.
9. That the Appellant was in custody therefore the verification may kindly be dispensing of.
10. Under the facts and circumstances stated above, it is prayed from this Hon'ble Court may graciously be pleased, in terms of justice:.
a) To
call for the records and proceedings of this case and after pursuing the same, to set aside the Judgement and Order dated
12.12.2020 passed by the Learned Trial Judge, A. Kumar in Session Case No 123
Of 2020 and to acquit the Appellant.
b) Considering the facts and circumstances of the
case, to expedite the hearing of this Appeal.
c) Till
this application is pending and final disposal of the Appeal the Appellant be
released on bail, on term and condition as this Honourable Court deem fit and
proper.
d) Pending
the hearing and final disposal of this Appeal, the fine imposed by the Learned
Judge may kindly postponed till disposal of this appeal.
e) To
grant interim relief as prayed in clause (b), (c) and (d).
f) To
pass such further relief , as this Honourable Court deem fit and proper.
And
for this act of kindness the Applicant shall ever pray of
Dated this Day 01 of January at 2021.
Advocate of Appellant
A.K. Singh
ANNEXURE 1
Judgement
and Order
IN THE COURT OF SESSION
AHMEDABAD
SESSION
CASE NO. 123 OF 2020
(IN
AHMEDABAD POLICE STATION C.R. NO. 99 OF 2020)
DIST:
AHMEDABAD
ABC.
…….Appellant
Versus
State of Gujarat …….Respondent
ORDER
Whereas information has been laid before me and on the
consideration thereof, I have reasons
to believe that the accused are alleged for having committed
the offence of
murder of KBC, at the farmhouse in Ahmedabad
Since the offence(s) under Section(s) of Indian Penal Code,
1860, Accused is sentenced to Life imprisonment.
Seal: Affixed Signature of the Magistrate: Sd/-
Date: 22/02/2020 A. Kumar
ANEEXURE 2
Chargesheet
THE FINAL
REPORT OF THE INVESTIGATING OFFICER
1. Details:
a. Dist: Ahmedabad
b. P.S: XYZ
c. Year: 2020
d. FIR No: 99 of 2020
2. Final Report/Charge-Sheet No: 202 of
2020
3. Date: 21 February 2020, 3 PM
4. Act: Indian Penal Code
Section(s): 302
5. Type of final Report: Charge-Sheet
6. If
supplementary or original: original
7. Name
of the I.O.: ZY
Rank: The Inspector, XYZ Police
Station
8. Name of Complainant / Informant: Mr. CD
9. Date of properties / Articles / Documents
recovered / seized during
investigation and relied upon (separate list
can be attached, if necessary).
Bottle of Bear was recovered from – House of
the deceased – 22-02-2020
10. Particulars of accused persons
charge-sheeted:
Accused
(i) Name: ABC
Whether verified: Yes
(ii) Father’s / Husband’s Name: CBA
(iii) Age: 30 DOB: 09/02/1988
(iv) Sex: Male
(v) Nationality: Indian
(vi) Address: 12, Basant Vihar,
Ahmedabad.
Whether verified: Yes
(vii) Offence(s) charged under: Section(s)
302 of Indian Penal Code, 1860
(vii) Status of the Accused: in central
jail, Ahmedabad
Brief facts of the case (Add separate sheet,
if necessary):
Mr. KBC was found dead near
to the Farmhouse of ABC . Fingerprints of ABC was found on the bear bottle in
the car of KBC.
Forwarded by the Station House Officer / Officer
in-charge.
Name: L. Singh
Rank: The Inspector, XYZ Police
Station.
Signature
of the Investigating officer submitting the Final Report: Sd/-
ANNEXURE 3
SCENE OF OFFENCE- PANCHANAMA
Pancha
No. 1: Date: 02/01/2019
S.S.
Singha
Age:
21 years
Residing
at a shed close to Farmhouse, Ahmedabad
2:
Constable:
P.P. Das
Age:
35 years
Residing at a shed close to Ahmedabad.
We, the above mentioned Panchas were called by L. Singh (the
Investigating Officer) to act as Panchas in the present case at about
11:00 AM in the morning on February 22nd, 2020.
We took the police around the farmhouse. We all observed
how everything inside the car. We also that the mobile and wallet of
deceased was recovered.
Except for the above-mentioned item, no other item/ property was
seized by the police in our presence. The panchanama concluded at about 1:55
PM on the same day and it was conducted in an orderly manner. The contents
of the panchanama were read over to us and are correctly recorded.
Rank- Inspector
C.J. Kumari
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