RAJUBHAI THOBHANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal arises out of the judgment and order dated 31.05.2005, rendered by the learned Additional Sessions Judge, FTC-1, Bhavnagar, in Sessions Case No.85/2004, convicting the present appellant (original accused No.1) for the offence punishable under Section 302 of the Indian Penal Code ["IPC" for short] and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment thereof to undergo further imprisonment for two years. He was also convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced to undergo imprisonment for six months and to pay a fine of Rs.250/- and in default of payment thereof to undergo further imprisonment for one month. Both the sentences were ordered to run concurrently. The original accused Nos.2 & 3 were convicted for the offence punishable under Section 323 read with Section 114 of IPC and sentenced to undergo S.I for three months. They were given the benefit of set off; whereas the said benefit was not given to present appellant (original accused No.1). The amount of fine of Rs.10,000/- was ordered to be paid to victim Vasantben, wife of deceased Dhanjibhai.

(2.) The prosecution case, briefly stated, is that on 10.3.2004 at about 8.30 P.M, at village Ningala, near the house of deceased Dhanji Bachubhai Makwana, a quarrel took place between the accused persons and deceased Dhanjibhai because of often scolding to the appellant (orig. accused No.1) by deceased Dhanjibhai on account of illicit intimacy with Bhavnaben, wife of Pravinbhai, the youngest brother of complainant Bhikhubhai Bachubhai, wherein all the accused persons gave filthy abuses to the deceased and the appellant, who was armed with a chhari, got excited and gave a blow in the abdomen of deceased Dhanji with chhari, as a result of which, the deceased fell down and the appellant gave another blow on his back. It is the further case of the prosecution that when the complainant and his deceased brother's wife Vasantben tried to intervene, all the three accused persons gave fist and kick blows to the complainant and Vasantben, wherein the complainant sustained injuries on his head and body, and Vasantben sustained injury on her right hand finger. It is the further case of the prosecution that there was profuse bleeding from the abdomen of deceased Dhanjibhai and intestines were protruded from the wound. On shouts being raised, other persons gathered and the accused ran away with in the jeep of the appellant. The deceased Dhanjibhai was shifted to Gadhada Government Hospital by the complainant, his uncle Govindbhai Nathubhai and Vasantben in the Jeep of one Dhasharathsinh Gajubha. The doctor on duty in the hospital declared him dead. The complainant, therefore, lodged FIR with Gadhada Police Station.

(3.) The investigating officer registered the F.I.R and started investigation. The I.O recorded the statements of the complainant, other eye witnesses, doctor and other persons, who were found conversant with the facts of the case. The incriminating articles, which were seized during the course of investigation, were sent to F.S.L for analysis. After obtaining Serological Report as well as ascertaining the cause of the death and on completion of the investigation, the appellants were charge sheeted in the Court of learned J.M.F.C. Gadhada, for the offences punishable under Sections 323, 504 & 302 read with Section 114 of IPC and Section 135 of the Bombay Police Act. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Bhavnagar, for trial, where it was registered as Sessions Case No.85/2004.