SUBHASHBHAI BHAGUBHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973 against the judgement and order dated 24.9.2008 passed by learned Second Additional Sessions Judge, Bharuch whereby he was convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs. 1000/ -, in default, to further undergo rigirous imprisonment for four months.

(2.) THE brief facts of the case are that complainant Kalidas Vasava had in his complaint dated 17.2.2008 alleged that his son i.e. deceased Bharat who was staying with the complainant at his house in Juna Rajvadia village had on 16.2.2008 gone to Tavdi village which is nearby along with two other persons residing in the same area as the complainant, to attend the marriage of Hasuben, daughter of Dahyabhai Vasava. It is alleged that since deceased Bharat did not return even on the next day, the complainant had inquired with the persons who had gone along with Bharat and was told that Bharat had been at the marriage till late night from where he had told them that he is going to his aunty s place to have tea and after that since he did not return in spite of the said persons waiting for him, the said persons had came back. It is further alleged that the complainant had waited for Bharat to return till 5.00 p.m. and since Bharat did not return, he along with his wife and daughter had gone to village Tavdi to inquire about Bharat and on inquiry he had met one Chagganbhai Lakadiabhai Vasava, who had told the complainant that dead body of a male person is lying in his wheat field whereupon the complainant along with his wife and daughter had gone there and seen the dead body of Bharat in a bloody state. The complainant further described the injuries which he had seen upon the dead body of Bharat, at which time one Harising Devji Vasava who happens to be a far of relative of the complainant, had met him and told him that at night of the previous day, deceased Bharat along with one Nitesh who is sone of the said Harising Vasava and Bhupendra had gone to the marriage and had danced there and at around 2.30 to 3.00 a.m. Thereafter, according to Harising all three of them had gone to the house of one Bhagubhai Vasava with whose daughter Saroj, Nitesh was having an affair. All three of them had climbed on terrace of the house of Bhagubhai from where Nitesh as pre -arranged with Saroj, had whistled to call Saroj whereupon Subhash Bhagubhai Vasava, present appellant, brother of Saroj, had heard the said whistle and woken up and had taken an axe from his house and had come to the terrace and had gone to beat these three persons standing on the terrace whereupon all three of them had jumped from the terrace in which fall, Nitesh had injured his leg. From there all three had run towards the house of Nitesh. He further informed the complainant that Nitesh and Bhupendra had both reached the house of said Harising Vasava whereas Bharat was separated from them and had run towards the field of Chagganbhai, whereupon the appellant had gone towards the place where Bharat had run, with axe in his hands speaking bad words. It is further alleged that Harising Vasava, his son Nitesh and Bhupendra had run towards the field of Chagganbhai during which time they had seen Subhash assaulting Bharat on the head with an axe, on sustaining which injury Bharat had fallen down. It is further stated that since there was light during that time on night, they had seen Subhash hitting Bharat whereupon they had started shouting and had started throwing stones at Subhash, whereupon Subhash had run towards them with axe in his hand upon which all three of them being very afraid had run inside their house and had hidden there. It is further stated that since all three of them were afraid of Subhash, they had hidden in the house for the whole day and had not talked to anybody about the said incident. It is further alleged by the complainant that on coming to know about this, the complainant had lodged the complaint with Umalla police station.

(3.) LEARNED counsel for the appellant has contended that the whole case rests on the statements of three witnesses namely Harising Vasava, Nitesh and Bhupendra Vasava. He has submitted that Harising in his statement dated 18.2.2008 stated that on the date of incident at night his son Nitesh and Bhupendra had told him that Subhash, the appellant, is after them with an axe. Thereafter, Harising, Nitesh, Bhupendra and his other son Manoj had opened the door and seen that deceased and the present appellant were abusing each other when deceased Bharat had pushed Subhash whereupon Subhash had fallen and Bharat had started running. It is stated that said deceased Bharat had run from near the house of Harising in a narrow lane during which time Subhash had also started running behind Bharat with axe in his hand. On seeing this Harising, his son Nitesh along with his other son Manoj and Bhupendra had started running behind Subhash keeping a distance during which time Bharat had reached the field of Chagganbhai Lakadiabhai when Subhash had also reached near Bharat and had assaulted Bharat repeatedly with axe and on sustaining injuries, Bharat had fallen down. Harising states that on seeing this, all four of them had gone near the place and started throwing stones at Subhash, whereupon Subhash had rushed with his axe near them. On seeing which all four of them had run and come near the house of Harising. It is further stated that the present appellant had gone upto the place where Bharat had fallen down. Since it was a moonlit night they had clearly seen the present appellant taking out a cloth which he had tied on his neck and tied the said cloth on deceased Bharat s neck and had dragged him in the field of Chagganbhai for around 20 to 25 feet. On seeing this, all four of them had gone near the said place and had thrown stones at Subhash whereupon Subhash had again ran behind them with axe in his hand and had come upto the house of said Harising whereupon all four of them had entered into the house of Harising and locked the door from inside. Subash was standing outside and threatening them that he had already finished of one of them and was waiting outside for any of them to come out so that he could finish all four. Thereafter, all four of them had not come out of the house during which time Nitesh had told Harising that all these had happened due to his love affair with Saroj, sister of Subhash. Harising was informed about Saroj having called Nitesh to meet her at terrace of her house and when Nitesh, Bharat and Bhupendra had gone there, Nitesh having whistled, Subhash having heard the same and had come out with an axe, on seeing whom all three of them had jumped from the opposite side of the house, during which Nitesh had injured his leg. All three of them had run towards the house of Nitesh. Nitesh and Bhupendra had managed to come inside the house whereas Subhash the present appellant had caught Bharat near Bhatiji Mandir, located near the house of Harising and had started abusing Bharat about the love affair between Nitesh and the appellant s sister Saroj. Nitesh had further informed him that Subhash and hit Bharat and had dragged Bharat with his lungi keeping in mind the grudge against Nitesh. It is further stated that next day in the early morning Bhupendra had left for his house whereas wife and daughter of Harising had gone out to do some work but since Subhash was moving around near their house, Harising and his son did not come out and later on they had learnt from wife and daughter of Harising that Bharat had died in the field of Chagganbhai. Later when father of the deceased Kalidas original complainant reached the spot where dead body of Bharat was lying and had started inquiring and when he had come to the house of Harising to inquire, Harising, Nitesh, Manoj and his wife had informed the original complainant of the said incident and later on since it was dark, Bhupendra had also somehow come to their house and told the complainant about the incident. It is stated in the complaint that since the present appellant was against the affair between Nitesh and his sister Saroj this incident had happened and earlier also the appellant had falsely implicated Nitesh and his brother Majoj in a police case alleging that they had destroyed the field of Subhash. It is alleged that Subhash had murdered Bharat since he could not get hold of Nitesh or Bhupendra and that Harising had witnessed the whole incident.