KANUBHAI SHANABHAI GAMECHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal is at the instance of a convict - accused for the offence of murder and is directed against an order of conviction and sentence dated 21st February 2007 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court No.2, Anand, in Sessions Case No.34 of 2006, by which the Additional Sessions Judge convicted the appellant for the offences punishable under Sections 302 and 364 of the Indian Penal Code. The learned Additional Sessions Judge sentenced the accused - appellant to undergo life imprisonment with fine of Rs.500/- for the offence punishable under Section 302 of the Indian Penal Code, and in default of payment of fine, further rigorous imprisonment of two months. The learned Additional Sessions Judge also sentenced the accused-appellant to undergo rigorous imprisonment for a period of 10 years with fine of Rs.500/- for the offence punishable under Section 364 of the Indian Penal Code, and in default of payment of fine, further simple imprisonment of two months. Case of the Prosecution:

(2.) A First Information Report, (Exh:57) was lodged by one Madhuben alias Puniben Arjunbhai Gamji, the mother of the deceased Nitesh, who, at the time of incident, was around three and a half years of age, at the Vasad Police Station on 21st September 2005, inter alia, alleging that past one year she was residing with Arjun, (PW-5) her husband of second marriage. During the wedlock from the first marriage with one Raman Sama, a son, was born named Nitesh. The first wife of Arjun, namely, Shardaben had committed suicide by consuming poison and, during the wedlock of the first marriage, four children were born to Arjun - two sons and two daughters, namely, Pappu alias Punam, Bhopo alias Ravi, Rekha and Sonam. While Arjun was in jail, at the time when his first wife had committed suicide, all the four children of Arjun, from the first marriage, were residing with his younger brother Kanubhai, the accused, and her mother-in-law. Arjun was running a small tea stall near Viswanath Petrol Pump on the highway and was earning his livelihood out of the same. The deceased Nitesh also used to reside with Arjun and the first informant Madhuben.

(3.) On 17th September 2005, Arjun and his wife Madhuben had gone to pay their homage at a temple, living behind Nitesh in the care of Pappu, the elder son of Arjun from the first marriage. After their return to home, on the next day they enquired with Pappu about Nitesh, and Pappu in turn, informed them that on the previous night, the accused had taken away Nitesh with him on his bicycle. Thereafter, Arjun and Madhuben went to the house of the accused and enquired about the whereabouts of Nitesh with the mother of Arjun. They were informed by the mother that Nitesh had not come alongwith Kanu, the accused, and nobody had any idea as to where Nitesh had gone. Since the whereabouts of Nitesh could not be found out, Madhuben as a mother, thought fit to lodge an FIR on 21st September 2005, which was registered initially for the offence punishable under Section 364 of the India Penal Code i.e. kidnapping for the purpose of committing murder.