HIMATSINGH BADHARSING Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant Himatsingh Badharsingh a Rajput was tried for the murder of a Bhil girl Jivi on 16th of April 1962 and was convicted and sentenced to suffer imprisonment for life by the Sessions Judge at Broach in Sessions Case No. 35 of 1962. He was also convicted for having committed the offence under section 19 (e) of the Indian Arms Act and sentenced to suffer rigorous imprisonment for one year. Both the sentences were ordered to run concurr ently.

(2.) The prosecution case may be briefly stated. The appellant was a resident of village Rampara in Taluka Rajpipla of Broach District. He was employed as a teacher in the primary school at village Nava Vaghpara which was also known as Jitpara. Between these two villages there was a village of Sengpura in which lived deceased Jivi with her parents Shaikhji Raysang and mother Uji. The appellant used to frequently visit the house of Shaikhji Raysang on his way back from school and even occasionally stayed at night with them. He had developed criminal intimacy with Bai Jivi. The appellant was married but still as he was infatuated by the girl Bai Jivi he had expressed a desire to marry her. It appears that even Jivi was at one stage prepared to accede to his desire. But she was already betrothed to a Bhil boy of village Vadiaone Bhikha Kuber and her parents therefore were not inclined to break their promise to marry her to that boy and allow her to be married to the appellant. On April 14 1962, which was a Saturday, the appellant after leaving his school came to the house of Jivi. At that time he told Shaikhji that he was going to Baroda on that day and would be returning on the next day evening and his meals may be kept ready. On the 15th evening he did return from Baroda and came to the house of Shaikhji. That day he again repeated his demand to marry Bai Jivi to him. But Shaikhji again answered the same way saying that as she was betrothed he would get her married to that Bhil boy and after that marriage if her husband showed the desire according to custom he can give dava to that Bhil and take her away. Nothing further seems to have happened between the father of Jivi and the appellant. That night the appellant slept in the Parsal on a cot and Jivi also slept in the Parsal but on the floor. she was in menses at that time. The other members of the family slept inside the house. Early next morning Shaikhji heard Velki wife of Khalpa Rama residing in the neighbouring Vada shouting that the accused was running away after firing a gun at Bai Jivi and that she was lying dead in her Vada. Shaikhji went to the spot and found his daughter Jivi lying dead on the ground. He also noticed gun shot wounds in her chest. Velki informed him that whilst she was on her way to answer the call of nature she had seen the accused running away towards the Khadi after firing a gun.... ... ... ... ... ... ... ... As the appellant was not to be found the P. S. I. directed a police constable to keep a watch and trace out the accused. On the 19th of April 1962 the police constable Sitaram who was entrusted with that work got information that the appellant was found concealing himself in the Sim of village Gambhirpura and so he in company with one Chhota Chamadia went to that part of the Kotar. He noticed the appellant sitting at the khadi. According to Sitaram the accused fired a shot from his Tamancha, which he believed was meant for him whereupon he proceeded to P. S. I. Shri Patil and requested him to come with police force. When the P. S. I. arrived at that place in company with Deputy Superintendent of Police he found the appellant lying unconscious on the ground with pellet injuries in his chest and a Tamancha and an empty cartridge lying by his side. It was noticed that at that time he had put on a long pajama a bush-coat and an under-waist as well as an under-pant. On a search being made in the presence of panchas from the pocket of the bush-coat of the appellant certain articles were found and amongst these articles there was one letter article 39, which was subsequently exhibited as Exhibit 65/A. The said letter was addressed to the District Superintendent of Police and therein the appellant had made a narration of the whole incident. We shall turn to this letter and its contents again a little later on.......... ...

(3.) The appellant in his statement before the Court admitted most part of the prosecution story and only controverted the allegation that he had murdered Jivi or that he had run away after murdering her and that Velki had seen him so running away. About the death of Jivi his case was that as Jivi was also inclined to marry him and as Jivis parents were not agreeable to allow her to marry him both of them had decided to commit suicide. Therefore on the 16th of April 1962 early in the morning at about 3-30 A M. both of them had got up and started to go to the Khadi but on the way he had a sensation to answer the call of nature and therefore he gave the Tamancha that he was carrying with him to Jivi and asked her to wait till he returned. But after he left her he heard a gun report. He thereupon rushed back to the place where Jivi was left by him and he found Jivi lying dead on the ground having shot herself with the Tamancha, which was lying by her side. It was his case that on seeing this sight he got confused became nervous and ran away with the Tamancha crossed the Khadi putting off his clothes on the bank of the Khadi and then he concealed himself in the Kotar of Gambhirpura Sim for about four days. Then ultimately he attempted to commit suicide by firing a Tamancha at himself and became unconscious. He recovered his consciousness in the hospital where he was removed. As regards the letter article 39 he had a different story to give. He denied that that article was written and kept in his pocket and that it was recovered by the police from his bush-coat while he was lying unconscious in the Sim of Gambhirpura. According to him the P. S. I. had come to the Civil Hospital on the 20th of April 1962 to record his statement and at that time he had expressed a desire to the P. S. I. to say something to him. But the P. S. I. had told him to put in writing whatever he wanted to tell him. He was afraid at that time that the police will try to get his confession somehow and therefore he stated in that letter that he had murdered Bai Jivi. About the attempt on his own life his story was that as he was disappointed in love affairs he had tried to take his own life.