KESHA GANGA HARIJAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By judgment and order dated 24.05.2006 in Sessions Case No. 28 of 2005, the learned Additional Sessions Judge, Fourth Fast Track Court, Gandhidham-Kachchh, convicted one Kesha Ganga Harijan, the appellant herein, for the offence under Section 302 of the Indian Penal Code, 1860, and sentenced him to life imprisonment and fine of Rs.1,000/- in default simple imprisonment for one year. He was also convicted for the offence of breach of Section 37(1) of the Bombay Police Act, 1951, and was sentenced under Section 135 of the Act to simple imprisonment for one year and fine of Rs.250/- and to further undergo two months' imprisonment on default of payment of fine. Both the sentences were directed to be undergone concurrently. The present Appeal under Section 374 of the Code of Criminal Procedure, 1973 ( 'the Code') is directed against the conviction and sentence recorded in the aforesaid judgment.

(2.) The victim was one Bhima Jivan Harijan, who, according to the prosecution case, died because of the stick blows given by the appellant at around 6.00 a.m. in the morning of 30.03.2005. The prosecution case as revealed from the complaint (Exh.9) filed by one Ramji Jivan, real brother of the victim, was that when he was brushing his teeth in the morning, he saw the accused giving blow after blow of a curved stick to the victim who was sleeping on a cot. At that time, one Vasa Punja Harijan arrived and asked the accused as to why he was beating the sleeping person. The accused excitedly stated that Bhima (the victim) had played role in breaking his betrothal. It was stated in the complaint that earlier altercation had taken place between the victim and mother of the accused regarding engagement of the accused, who acted in reprisal. The victim was taken to Rapar Civil Hospital, where he was declared to be dead. The prosecution examined 14 witnesses and proved 13 documents evidences at the trial.

(3.) Learned advocate for the appellant Mr. Pratik Barot took the Court through the evidence on record and submitted that the trial court had seriously erred in convicting the appellant. He highlighted inconsistencies and contradictions in the evidence of two eye witnesses (PW-1 and PW-3). It was submitted that medical evidence and the kind of injuries suffered by the deceased and absence of blood marks on the cot dislodged the entire prosecution case. According to learned advocate, recovery of the weapon was not duly proved and there was no evidence of motive for the accused to commit the crime, and if anyone had any motive, it was one Hari Bhala, uncle of the deceased, who had reason to kill the victim.