HIRABHAI BHANABHAI AHIR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the impugned judgment and order dated 5th July, 1989, rendered by the learned Additional Sessions Judge, Surat, in the Sessions Case No.221 of 1988. The learned additional Sessions Judge has convicted the present appellant (hereinafter referred to as "Accused")for the offences punishable under sections 302 and 201 of the Indian Penal code and has sentenced him to undergo imprisonment for life for the first offence and rigorous imprisonment for a period of three years for the other offence and to pay fine of Rs.500.00, in default of payment of fine, ordered to suffer rigorous imprisonment for one month. He however acquitted the Accused Nos.2-3 of the said offences, read with section 114 of the IPC, giving them benefit of doubt.

(2.) Briefly stated the prosecution case is that on 28th day of July,1988, at around 1O.OO hours in the morning, one Ramdas, the brother of the complainant Bhikhubhai Ravjibhai had gone to his field in the outskirt of village Sarsana, for the purpose of tethering his cattle. At that point of time, two witnesses, namely, Dilipbhai Namlabhai and Gopalbhai Babubhai Patel had also gone to their respective fields. It is the prosecution case that the cattle of the accused trespassed upon the field of Ramdas, who had driven out the cattle from his field, resulting into the Accused persons reaching there, and the Accused No.1, asking Ramdas as to why he had driven out his cattle from the field. Ramdas retorted saying that the Accused had formed habit of seeing that his cattle trespassed upon the field, and therefore, they were driven out. The Accused No.1, therefore, got enraged and ran to beat Ramdas. Ramdas, therefore, ran to escape, the accused chased him and caught him. The Accused Nos.2-3 caught hold of Ramdas, and the Accused No.1 gave a stick blow on the head of Ramdas. Ramdas fell down and at that time, both the abovenamed witnesses shouted (for not beating Ramdas), but, the Accused threatened them that they would have to suffer if they did not go away. Both the witnesses therefore left the place. It is the prosecution case that thereafter the Accused persons lifted Ramdas who was lying on the ground and took him to the nearby khadi (creek) and threw him into the waters of the khadi. As the cattle returned home without Ramdas, the complainant started inquiring into the whereabouts of Ramdas, but, he could not trace him out. He, therefore, lodged a complaint with Umra Police Station about missing of Ramdas. The inquiry was continued on the next day when the dead body of Ramdas was found in the khadi near new road in the outskirt of Sarsana village. It was sent for post mortem in the New Civil Hospital, and thereafter, was handed over for the cremation ceremony thereof. At the time of cremation of the dead body, the witnesses Dilipbhai alias Dipakbhai Namlabhai and Gopalbhai Babubhai talked to the complainant about the incident. It is the prosecution case that since the witnesses were threatened by the accused, they could not immediately inform about the incident and Dipakbhai had to go to purchase necessary articles since his wife was pregnant and Gopalbhai had gone to his parents in law's house, as his wife was sick. However, they had the occasion to go to the place of cremation where cremation ceremony of the dead body of Ramdas was in progress and on that occasion they informed the complainant and other persons of the village about the incident in question. Since it was raining and the night set in, the complaint was given at 11.45 A.M. on the next day i.e. 30/7/1988.

(3.) With regard to what transpired in the proceeding before the police it has been alleged that head constable Balkrishna Pandurang was on duty as the P.S.O. on 28/7/1988 when the complainant disclosed the facts about his missing brother Ramdas. He recorded statement of one Motibhai. P.S.I. Mr. Shukla started investigation. Dead body of the deceased was sent for post mortem after making inquest thereon. The medical officer was questioned to find out the cause of death. On receipt of complaint on 30/7/1988 as stated above, investigation was entrusted to the senior P.S.I. Mr. Bense who recorded statements of the witnesses, made panchnamas of the person and clothes of accused no. 1 and arrested him at 4.30 P.M. (16.30 hours). Since he was ready to show muddamal stick, the same was accordingly discovered. Further statement of the complainant and statements of other witnesses were recorded. On 31/7/1988 he made panchnama of the person and the clothes of accused nos. 2 and 3 who were arrested at 10.30 a.m. Muddamal articles were sent for forensic examination and upon receipt of the F.S.L. report charge-sheet was presented. The case was committed for trial before the Sessions Court.