SARDARBHAI KANTILAL MAVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant has, by filing this Criminal Appeal under Section 374(2) of the Criminal Procedure Code, 1973 (for short the "Cr.P.C.) challenged the correctness, legality and validity of the judgment Ex.59 dated 20.04.1995 rendered by the learned Additional Sessions Judge, Panchmahals, at Godhra, Camp at Dahod (who will be referred to hereinafter as the "learned Judge of the trial Court") in Sessions Case No.30 of 1994, by which the appellant has been convicted for the offences punishable under Sections 302 and 324 of Indian Penal Code, 1860 (for short the "I.P.C.) and is sentenced to undergo life imprisonment and to pay a fine of Rs.500/-and in default of payment of fine, to undergo further simple imprisonment (S.I.) for 10 days for an offence punishable under Section 302 of I.P.C. and no separate sentence has been inflicted for an offence punishable under Section 324 of I.P.C. The appellant has been acquitted for an offence punishable under Section 135 of the Bombay Police Act, 1951 (for short the "B.P.Act"), for which the State Government has not filed any acquittal appeal against the present appellant (accused).

(2.) The facts leading to this present criminal appeal can be summarized in a nutshell as follows. The complainant, P.W.3 Kasamben d/o. Somabhai Desingbhai Pasaya, is resident of village Gumali in Limkheda Taluka. As per the complaint, she is residing with her parents at village Gumali in Limkheda Taluka and studying in Standard 12th in Higher Secondary School at village Kanjeta. The complainant Kasamben has five brothers and one sister and amongst them; eldest is Laxman, second is Maniben, who is married with Sardarbhai Kantibhai Mavi (appellant/accused) of village Kanjeta, third is brother Maganbhai, fourth is Himmatbhai (victim deceased), fifth is P.W.3 Kasamben herself, sixth is Parvatbhai and seventh youngest is Kanubhai. Himmatbhai (deceased) was also studying in the School at village Kanjeta. On or about 11.10.1993 in the morning at about 8.00 A.M. Kasamben in company of Himmtbhai, P.W.10 Tejaliben and other 6 to 7 students, by travelling in a Bus, had gone to Kanjeta to appear at the examination in the Higher Secondary School at Kanjeta. They reached the school at Kanjeta at about 9.30 A.M. Maniben, who is sister of the complainant and Himmtbhai (deceased) is serving as an employee to fetch water for the school. The said Maniben is the wife of the present appellant. Before 09.10.1993, the appellant had sent one letter (chit) Ex.41 to the complainant in which abuses were stated. In reply to that letter, complainant had written one letter, Ex.40 dated 09.10.1993 addressed to the accused. The complainant handed over that letter Ex.40, which she had addressed to the appellant, to her sister Maniben asking her to give that letter to the appellant. Thereafter, the complainant and the Himmtbhai (deceased) and other students went inside the examination hall for appearing at the examination. After appearing at the examination, Kasamben in company of Himmtbhai (deceased) other students P.W.8 Sumitraben, P.W.10 Tejaliben, P.W.9 Shankarbhai, and P.W.6 Navalsingbhai proceeded on foot to reach Bus-Stand for their return journey to village Gumali. It is the case of the prosecution that when they were going on foot and reached near the Police Thana, suddenly, the appellant, who is husband of the sister of the complainant came there on the way and asked the complainant as to what she had written in the letter sent to him. Thereupon, she replied in question form to the appellant as to what she had written in the letter. Thereupon, the appellant got excited and inflicted a knife blow at the back portion near the waist of the complainant. Meanwhile, Himmtbhai (deceased) brother of the complainant intervened and asked the appellant as to why he was beating his sister. Thereupon, the appellant inflicted a knife blow on the chest of Himmtbhai (deceased) and that knife blow was landed on the left portion of the chest, and Himmtbhai (deceased) started to suffer from giddiness and then he fell down on the road. The complainant shouted addressing her brother "Himmat Himmat", but Himmat could not speak. Thereafter, complainant went to one shop of Samadbhai situated nearby the place and brought water and Himmtbhai (deceased) was made to drink the water. The Himmtbhai (deceased) drank a little water and caused some voice "ARRR" from within his throat and died at the place. Thereafter, complainant went running to Police Thana for informing about the incident. Meanwhile, the appellant ran away towards his house. One police man Pravinsinh took complainant on his scooter and brought her to Dhanpur Police Station. After reaching Dhanpur, as she was injured, P.W.11 P.S.I. Rathod sent her to Primary Health Centre of Dhanpur for treatment. After coming back from Primary Health Centre to Dhanpur Police Station, she lodged her complaint against the appellant at 16.15 hours on 11.10.1993. That complaint came to be registered as C.R.No.I-136/93 for the offences punishable under Sections 302 and 324 of I.P.C. and also under Section 135 of B.P.Act. P.W.11 P.S.I. Udesinh Ratansinh Rathod, took down the complaint of P.W.3 Kasamben and, thereafter, crime was registered. He took over the investigation of the case. First he went to the place of the incident and in the presence of panch witnesses, he held inquest of the deceased Himmatbhai Somabhai Pasaya for which he drew an inquest panchnama. Thereafter, he along with his report, a copy of inquest panchnama and death report sent deadbody of the deceased Himmtbhai, to Primary Health Centre at Dhanpur for autopsy. Thereafter, he went to the place of the incident and drew a panchnama of the scene of an offence, which was shown by witness Somabhai Desingbhai (father of the deceased Himmtbhai). From that place, he attached and seized a sample of control earth, blood stained earth for the purpose of examination and analysis under a panchnama. Thereafter, on 11/10/1993, the accused was arrested under an arrest panchnama. While arresting the accused, one knife and one letter (chit) were found from the left pocket of his pantaloon. These articles were also attached and seized by P.S.I. Rathod. Thereafter, on 12.10.1993, police constable Kalichadan Gisuram, brought articles like ; wrist watch, S.T.Bus pass, question paper, pair of slippers, haircomb etc., which were found from the deadbody of the deceased Himmtbhai, and that articles were attached and seized under a panchnama. He recorded the police statements of witnesses who were conversant with the facts of the present case. On 13.10.1993, P.W.11 P.S.I. Rathod went to Government Hospital at Devgadh-Baria, where complainant was admitted as an indoor patient and he recorded her further statement. A panchnama with regard to physical condition of Kasamben was drawn. At the time of drawing panchnama of physical condition of Kasamben, P.S.I. Rathod attached and seized clothes worn by her and one chit in pieces found from the pocket of her skirt. Thereafter, P.S.I. Rathod under a forwarding letter sent all incriminating articles, clothes of the accused and clothes of Kasamben to Forensic Science Laboratory, Surat (for short the "F.S.L.) for examination and analysis. Thereafter, on receipt of injury certificate and post-mortem notes and on completion of investigation, P.S.I. Rathod filed a charge-sheet against the accused in the Court of the learned J.M.F.C., Devgadh-Baria, Camp at Limkheda on 04.01.1994. That charge-sheet came to be registered as Criminal Case No.1 of 1994. As one of the offences viz. an offence punishable under Sections 302 of I.P.C. is exclusively triable by the Court of Sessions, the learned J.M.F.C., Devgadh-Baria, Camp at Limkheda, by passing a committal order under Section 209 of Cr.P.C. committed the said case to the Court of Sessions, Panchmahals at Godhra. On receipt of the case papers, that case came to be registered as Sessions Case No.30 of 1994 in the Court of Sessions, Panchmahals at Godhra.

(3.) The said Sessions Case No.30 of 1994 was assigned to the learned Judge of the trial Court, who conducted the trial, at Dahod. On the basis of material on record, the learned Judge of the trial Court framed a charge Ex.2 on 14.10.1994. That charge was read over and explained to the accused. On recording his plea, he pleaded not guilty to the charge and claimed to be tried.