THAKORE BALSANGJI KALUJI VARSANGJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal, preferred by the appellant (original accused), namely, Thakore Balsangji Kaluji Varsanji under Section 374 of the Code of Criminal Procedure, 1973 (for short, the Code ), calls in question the judgment of conviction and order of sentence dated 23rd March 2005 passed by the Additional Sessions Judge, 8th Fast Track Court in Sessions Case No.84 of 2004 whereby the learned Additional Sessions Judge found that the appellant herein is guilty of offence punishable under Section 302 of IPC and sentenced the appellant-accused to suffer RI for life and to pay a fine of Rs.1,000 in default of which to further undergo SI for three months. In addition to this, the appellant was also found and held guilty of offence punishable under Section 307 of IPC and sentenced the appellant-accused to suffer RI for 5 years and to pay a fine of Rs.500 in default of which to further undergo SI for one month.

(2.) THE facts leading to the trial of the present appellant-accused are that on 26th December 2003 in the afternoon the complainant Babubhai Keshavlal Gajjar, residing at Devkinandan Society, Taluka and District Mehsana had gone to bazaar for purchasing the medicine. When the complainant was returning back to his home, the appellant accused, who was residing adjoining to his house was coming out of his society having the sword in his hand. As per the say of the complainant, though the complainant did not utter a word, the appellant-accused gave blow on his left hand with the sword and when he was trying to save himself and raised his hand, the appellant inflicted the second blow on the left hand and third blow on his left ear. As per the further prosecution case, because of this incident, the complainant started shouting. At that time, PW No.27, Govindbhai Modi came there and took the complainant to his home and kept there. Thereafter, the appellant-accused ran away and as the complainant was seriously injured, the complainant s son, namely, Maheshbhai - PW No.6 and Nareshbhai PW No.7 took the complainant to the Civil Hospital at Mehsana for medical treatment. It is further the prosecution case that the said incident took place in between 12.20 to 1.00 PM. In pursuance of the vardhi issued by ASI, Gopalbhai PW No.26 vide Exhibit 69 as to the occurrence of the incident of fighting, PW No.25 Ramvishal Pathak, Circle Police Inspector proceeded and recorded the complaint at Doctor House Hospital, Mehsana. The said complaint came to be transmitted to PW No.26 Gopalbhai Patel which came to be registered as I C.R.No.407 of 2003 for the offences punishable under Sections 302 and 307 of IPC and Section 135 of the Bombay Police Act ( BP Act for short). At this stage it requires to be noted that prior to the incident in question it is the case of the prosecution that as the appellant-accused remained unmarried and his younger brother, namely, Keshaji PW No.4 got married an altercation took place between the appellant-accused and his father Kalyanji Varsangji Thakor PW No.11. At that point of time, deceased Chaturben, mother of the appellant-accused intervened and pacified the appellant-accused, but he became angry. The said altercation between the accused-appellant and his father took place in the morning of 26th December 2003. As per the prosecution case on the said date at about 12.30 to 12.45 or thereabouts the appellant-accused being excited due to altercation which took place in the morning gave fatal injuries on the right cheek, right ear, right side of the neck and back with the help of sword due to which Chaturben died. As per the case of the prosecution the complainant got this information when he was under treatment and therefore the complainant formed an impression that as the complainant saw the appellant-accused coming out of his home and further as the appellant-accused might have got an impression that the complainant might have seen while causing murder of his mother, the appellant-accused attacked the complainant by giving blows by sword as recorded hereinabove and that is how the aforesaid offence came to be registered against the present appellant-accused.

(3.) THE prosecution case is also such that the weapon, namely, the sword, which was used by the appellant-accused in causing injuries to Chaturben and the complainant was recovered at the instance of the appellant-accused as per Recovery Panchnama Exhibit 56 and that said weapon namely, sword was having dried bloodstains which are, as per the Serological Report Exhibit 26, of human blood group of A. It is the prosecution case that during the course of investigation, the clothes worn by the deceased Chaturben and clothes worn by the complainant came to be recovered as per the panchnama Exhibit 54 and 45 respectively. All the clothes viz. the clothes worn by the appellant-accused, deceased-Chaturben and the complainant were sent to FSL and as per the Serological Report Exhibit 26 the blood found on the clothes worn by the deceased Chaturben was having blood group of A. It is further the case of the prosecution that during the course of investigation, the concerned Investigating Officer recorded the statements of various witnesses and drawn inquest panchnama and also panchnama of the scene of offence in the presence of panch witnesses. After receipt of sufficient material against the appellant-accused, the investigating agency filed charge-sheet in the court of the learned JMFC, Mehsana. As the said court lacks the jurisdiction to try the offence punishable under Sections 302 and 307 of IPC, it committed the case to the Sessions Court, Mehsana under Section 209 of the Code and accordingly the Sessions Court registered the said case as Sessions Case No.94 of 2004.