STATE OF GUJARAT Vs. KATHI RAMKU ALIGBHAI

JUDGEMENT

(1.) The State by this appeal challenges the acquittal order passed in favour of the respondent for an offence punishable under sec. 302 of the Indian Penal Code rendered by the Additional Sessions Judge Rajkot at Gondal in Sessions Case No. 31 of 1979 on 30 The short facts which gave rise to this appeal may be stated as under:

(2.) 2 One Vashram Meghji had gone to answer the call of nature in the morning on 18-9-1979. He was the resident of village Nani Parbadi which is near Rajkot. While he was returning after answering the call of nature he was attacked by the accused with a knife. There is a motive alleged and the motive alleged is that there was some dispute between the deceased and the accused. According to the prosecution this incident was witnessed by three persons viz. P.W. 2 Vallabhdas exh. 10 P.W. 3 Lakha exh. 11 and P.W. 12 Kalaben exh. 32. According to the prosecution because of the attack by knife ultimately Vashram Meghji fell down somewhere on the road near the house of Bavanji Nanji. From that place he was removed to Dhoraji Hospital where he was examined by Dr. Rayani who found him dead. From hospital message was sent which is recorded by P. S. O. at 7-30 A.M. and the message received was that the dead body of one Vashram Meghji was brought to the hospital who had expired because of injuries during struggle. That information is recorded by P. S. O. at exh. 20. Immediately information was conveyed to Police Sub-Inspector and the P.S.I. Dhananjay Rajnikant exh. 37 proceeded to Dhoraji Hospital and prepared the inquest Panchnama on the dead body of Vashram Meghji and thereafter registered the offence at the Police Station at 9-30 A.M. He thereafter prepared a panchnama of the place of scene of offence and from that place he attached one tin shoes watch and blood-stained earth. The accused was arrested at 3-30 P.M. and thereafter recovery panchnama was prepared and one knife was attached The statements of witnesses were recorded on 19-9-1979 and 20-9-1979 and the clothes of the deceased and the blood-stained earth were sent to Forensic Laboratory for examination and report. Ultimately after completing the investigation charge-sheet was submitted against the accused-persons. In due course the case came to be committed to the Court of Sessions where the prosecution examined 12 witnesses. The accused denied the guilt and he did not lead any defence. The learned Additional Sessions Judge Rajkot at Gondal for the reasons stated in the judgment acquitted the accused. That acquittal is now challenged by the State by filing this appeal.

(3.) 3 The learned Public Prosecutor Shri Bhatt read before us the evidence of P.W. 5 Kaliben exh. 13 and also the evidence of the three eye witnesses and thereafter took us through the evidence of the Medical Officer and the Circle Inspector and the panch witnesses and submitted that the evidence was overwhelming and in itself so complete that no other conclusion was possible. In order to appreciate the above submissions we went through the evidence. and it appears from the evidence that P.W. 5 Kaliben exh. 13 established that on the relevent date her husband had gone in the morning to answer call of nature and thereafter she heard cries raised by her relatives and Vallabh and she found that her husband was lying near the house of Bavanji. Now it may here be stated that one Meghji had three sons Vashram Balu and Lakha. Kaliben is the widow of Vashram who died Vashram has a son by name Kala and Lakha has a son by name Vallabh. Kaliben (P.W. 5) is examined in the trial court only to establish that her husband had gone on the relevant date in the morning to answer call of nature and thereafter she heard cries and when she went she found that her husband was lying near Bavanjis place. Three eye witnesses are Lakha the brother of the deceased Vallabh (P.W.2) son of Lakha and (P.W.10) Kala son of the deceased. In order to appreciate the evidence of these eye witnesses it will be necessary first to refer to the evidence of the Circle Inspector Kiritkumar (P.W.1) exh. 8. Ho prepared the map which is produced at exh. 9. Now it may be stated that to the extreme south on the eastern side there is a house of one Bachu Valera. To the north of that house is house known as old-gate which is in charge of the panchayat. Thereafter there is a house of Lakha Meghji and on one of the parts of the house of Lakha Meghji there is first floor. Thereafter there is a house of Balu Meghji. To the west of these houses there is a road. That road is from south to north. After one crosses the road on the western side just opposite the house of Lakha Meghji and old gate there is a house of Amba Vira. In the same way after crossing the road just opposite the house of Balu Meghji there is a house of the Hirji and one Padma. The road further proceeds to the north but near the house of Balu Meghji one can take the turn to the east and at that place the house of Bavanji Nanji is situated. If one proceeds further to the east arId then goes to the south one would reach the house of the deceased Vashram Meghji. There are two electric poles on the south-north road and according to the Circle Inspector exh. 8 is just on the road near the corner of Lakha Meghjis house and another is just near the place where one has to take turn while going from south to north in eastern direction. The first floor is at height of 20 St. from the ground so far as house of Lakha Meghji is concerned. To the west of that room on the first floor there are two windows and one door and there are three windows on another side and one window on the northern side. Now according to the prosecution case at that place P.W. 10 Kala was sleeping before night of the incident. He is a student studying S. Y. B. Com. and he is studying in the college at Junagadh For the purpose of going to Junagadh from Parbadi he had to go to Chowki Railway Station and the train from Chowki Railway Station leaves for Junagadh at 7-0 A.M every day and he would get up in the morning so as to reach Chowki Railway Station and catch train at 7-0 A.M. and for that purpose he will have to start from his place at about 6 30 A.M. This witness is son of the deceased and he stated that he and Vallabh (P.W.2) were sleeping on the first floor and in the morning at about 6-0 A.M. he heard the cries of his father save...save... According to him he heard the cries from the western direction. He stated that he and Vallabh got up and saw from windows on the western side and they witnessed that the accused Ramku was giving blows to his father by a knife and the blows were being given on the chest and according to this witness this incident happened just opposite the house of Amba Vira. According to him his father ran towards his house and his father was raising the cry save ..save and according to him he and Vallabh got down in the eastern direction and came on the road and at that time saw accused Ramku Alegbhai running with a knife. He stated that he saw him just near his house and he knew him for the last 10-12 years. He went to the place where his father was lying near Bavanjis house and found that his father was lying at the place and on questioning his father stated that Ramku had given a knife blow to him. According to the witness his uncle Lakhabhai Vallabh and his mother was present. Vashram was removed to his house and believing that he was alive a taxi was called for from Dhoraji and Vashram was removed in that taxi to Dhoraji Government Hospital where the Medical Officer examined Vashram and declared him dead. According to the witness the Medical Officer called the Police and after preparing the inquest panchnama his coMplaint was recorded and thereafter Police Officer was shown the place of the offence and the panchnama was prepared. The witness also stated that his father was done to death by Ramku because of old enmity. In cross-examination the witness also stated that he had no personal knowledge regarding the old enmity. He also stated that he had seen the tin lying on the road so also the shoes and a watch. He admitted that he did not tell the police when his complaint was recorded that he had seen the tin the watch and the shoes on the road. According to him he and Vallabh did not raise any cries and he stated that when he reach d the place where his father was lying Lakha reached ahead. He stated that he did not tell his uncle Lakha that he had witnessed the incident from the first floor. According to him his uncle told him that Ramku had given a blow. According to him thereafter he asked his father as to what had happened and he was told as above. He also stated that so soon he reached near Bavanjis deli he hid asked his father and his father had told that Ramku had given him a knife blow. Thereafter denials are taken. The witness stated that the name of the accused is Ram Aleg and is also known as Ramku Aleg and that his father had told him that Ramku had given knife blow According to him he was the only person who had asked. He denied the suggestion that after P.S.I. came to Parbadi the whole thing was concocted. In cross-examination the witness further stated that on the morning of the incident he got up at 5-45 A.M. and was collecting his books and according to him if the incident had not occurred he would have reached his house at 6 A.M. He stated that on the morning of the incident he had got up from bed and he heard the cries. He admitted that in his complaint he stated that on hearing the cries he had woke up. He denied the suggestion that the story that he was sleeping on the first floor was concocted. He also denied the suggestion that the shoes and the tin were planted on the road.