ALSING HIRLABHAI RATHVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant, original accused, has challenged the judgement and order of conviction and sentence dated 24.11.2005 passed by learned Presiding Officer & Additional Sessions Judge, Fast Track Court No. 3, Chhotaudepur, in Sessions Case No. 45 of 2003 whereby learned Judge convicted the appellant under Section 302 read with Section 114 of the Indian Penal Code and sentenced him to undergo life imprisonment with fine of Rs. 200/- and in default of payment of fine, to further undergo rigorous imprisonment for one month. The appellant was also convicted and sentenced under Section 135(1) of the Bombay Police Act and ordered to undergo rigorous imprisonment for four months and to pay fine of Rs. 100/-, in default of payment of fine of Rs. 100/-, to further suffer rigorous imprisonment for three months.

(2.) THE case of the prosecution is that on 12.3.2003 complainant Kanjaliben and her husband Udhalabhai had gone shopping and visited Bhangoliya fair. They came to village Rangpur for shopping after enjoying the fair and returned around 5 o'clock in the evening to their village Gunata with other people who were going to their home. The complainant along with her husband Udhalabhai left for their residence. At that time, Rajubhai Naykabhai Rathva and Shankarbhai also left for their residence. While the complainant and her husband Udhalabhai were going through the backyard of Ramlabhai Amariyabhai, Alsingbhai Hirlabhai (accused), brother-in-law of Kanjaliben (jeth) and nephew Raisingbhai Alsing came towards them. Alsingbhai Hirlabhai and nephew Raisingbhai had caught Udhalabhai and Raisingbhai gave him a blow with a sharp weapon Palia (scythe) on his neck. On shouting by the complainant, her son Malsing and father-in-law came out of their house. The husband of the complainant, on receiving one blow with a sharp weapon, fell down on the ground. Thereafter, Alsingbbhai Hirlabhai ran after Kanjaliben to beat her. However, she had hidden herself at her home. After some time she came out and tried to reach the place where her husband Udhalabhai was lying. At that time, Alsingbhai Hirlabhai, brother-in-law (Jeth) was inflicting stick blows on the stomach of Udhalabhai. After Alsinghbhai Hirlabhai and nephew Raising Alsing Rathva left the place, Kanjaliben rushed to her husband where she found him dead.

(3.) LEARNED counsel for the appellant has submitted that the prosecution has miserably failed to prove the case against the present appellant. Therefore, the order of conviction and sentence of the appellant is required to be set aside.