BHARATKUMAR ALIAS BHOPO KALIDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellant - accused Bharat @ Bhopo Kalidas has challenged in this Appeal the impugned judgment and order of conviction and sentence dated 16.2.96 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur, in Session Case No. 54 of 1995.

(2.) It is the prosecution case that on 11.12.94, at 10.30 a.m. near staircase of Vir Vijay Flats at Deesa, accused - appellant Bharat @ Bhopo Kalidas, gave threat to deceased Mahesh and other witnesses to kill and committed murder of deceased Mahesh by giving knife blows and thereby committed offences punishable under Sections 504, 506(2), 302 of the IPC and also under Section 135 of the Bombay Police Act. The learned Additional Sessions Judge found the appellant - accused guilty for the offence under Sections 302 IPC and sentenced to suffer life imprisonment and to pay fine of Rs.200.00, in default to further undergo one year rigorous imprisonment. He has also convicted the appellant - accused for the offence under Section 506(2) of the IPC and sentenced to suffer one year rigorous imprisonment. He has also convicted the accused - appellant for the offence under Section 135 of the Bombay Police Act and sentenced to suffer rigorous imprisonment for four months and fine of Rs.100/- and in default to undergo simple imprisonment of one month. All the substantive sentences were ordered to run concurrently. The impugned judgment and order of conviction and sentence dated 16.12.96 passed by the learned Additional Sessions Judge is challenged by the appellant - accused by way of this Appeal filed through jail. He has prayed for free legal aid, therefore, Ms. Sadana Sagar is appointed to defend his case in this Appeal.

(3.) Dharmendra V. Khatri, PW-3 Exh.14, lodged an FIR on 11.12.94 at 12.00 noon before the Police in Government Hospital about the incident in question. He is brother of deceased Mahesh. He has stated in his FIR Exh.41 that on 11.12.94 at about 9.00 a.m. he opened his Video Cassette Shop. At that time, his servants, namely, Atul Natverlal Thakkar, PW-7 Exh. 28 and Dilipkumar Kantilal, PW-4 Exh.16 also came. He told this brother deceased Mahesh to go to Vir Vijay Flats where there was a fault and come back after repairing the same. Thereupon, at about 10'O clock in the morning, all the three i.e. his brother Mahesh and his two servants Atul Natverlal and Dilipkumar Kantilal had left. Within one hour i.e. at 10.30 a.m. his servant Atul came to him and told him that accused Bharatkumar @ Bhopo Kalidas had given knife blows on the chest and waist of Mahesh, who was lying on the ground floor near the staircase of Vir Vijay Flats. Dilip was with him (Mahesh). Atul also told him that when they had gone for repairing of disc connection, accused Bharat @ Bhopo Kalidas, was cutting wires, therefore, Mahesh asked him why he was cutting wires? Thereupon, the accused Bharatkukar gave abuses to Mahesh and told him that he will not allow him to go alive, and by giving threatening, he took out knife from his pocket and gave blows to Mahesh on his chest and waist. Thereupon, he (complainant) immediately went to Vir Vijay Flats. There he came to know that his brother was removed to the hospital, therefore, he immediately reached to the hospital, where he found his brother dead. This is the sum and substance of the complaint lodged by complainant Dharmendra Khatri in his FIR at Exh. 41. Before the Court, he has narrated the same story in his evidence-in-chief. In his cross-examination, he has stated that he came to know fault in Vir Vijay Flats on Saturday evening. Ganapatji Kapurji Mali informed about the fault. There are about 15 families are staying in the said Vir Vijay Flats. Out of which, 10 families are having disc connection. Bharat - accused is also staying in Vir Vijay Flats. Except Ganapatji, nobody else made complaint about the fault. He had not seen the incident. For fault repairing, Atul, Dilip and Mahesh had gone there. Out of three, only Dilip and Atul had knowledge of repairing, but Mahesh had no knowledge. He had only gone for their help. For fault repairing, no instrument was needed.