BABURAO VITHAL SURVADE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS is an appeal to challenge the order of conviction and sentence passed by the learned 2nd Extra Additional Sessions Judge. Baroda, in Sessions Case No. 42/71 on 15th May 1971. The learned Judge has convicted the accused-appellant of an offence punishable under Section 304 Part I of the Indian Penal Code and sentenced him to suffer R. I. for seven years. The prosecution story in the above case, was in brief, as under:

(2.) THE houses of the accused and the deceased Nivrutirao are situated near each other at Baroda. On the previous day of the incident i. e. on 7-11-1970 the wife of the accused had assaulted the wife of Nivrutirao, Nivrutirao returned home on that day at about 1 a. m. On the next day in the morning when he sot up. his wife Narmada was lying in a bed due to the injuries caused to her by the wife of the accused. In the morning he went to the house of the accused and told him that, his wife and daughter had beaten his wife Narmada on the previous day. After talking for some time they started abusing and grappling with each other. At one stage, the accused felled the deceased to the ground and mounted on his body. The deceased however got himself extricated from the grip of the accused and sat over his body keeping both his hands on the latter's shoulders. While the accused was lying in that position, he took out penknife from his pocket and gave two blows to the deceased. At this point of the incident some persons intervened and they were separated. The deceased was removed to the hospital where, he was found to be dead. The first information report was given by Eknath, brother of the deceased. The accused was arrested on that very day. After committal proceedings, the accused was tried for the offence punishable under Section 302 of the Indian Penal Code by the learned 2nd Extra Additional Sessions Judge. Baroda.

(3.) ACCORDING to the defence version it was not the accused who had stabbed the deceased and in the alternative, it was pleaded that the accused had caused the injuries which resulted in the death of Nivrutirao in the exercise of the right of private defence. The learned Additional Sessions Judge however did not accept either of the aforesaid two versions and he held the accused guiltv of the offence punishable under Section 304 Part I of the Indian Penal Code.