RAMANBHAI CHIMANBHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the appellant/original accused against the judgement and order of conviction dated 29.10.2010 passed by learned Sessions Judge Fast Track Court, Bharuch Camp at Ankleshwar in Sessions Case No. 64 of 2010 convicting the accused appellant under Section 302 of Indian Penal Code whereby he is sentenced imprisonment for life and fine of Rs. 5,000/ - in default to undergo S.I. For 3 months.

(2.) THE case of the prosecution in brief is that the complainant is the daughter of the appellant and deceased Ramilaben is the mother and on 5.2.2010, the complaint was lodged before the police. The complainant with her husband and two sons are residing at Bhimpur and her mother also started to reside with her as she had a dispute with her father. A day before the incident i.e. on 3.2.2010, the appellant had gone to bring back his wife, now deceased, at her house and thereafter the appellant and deceased stayed together at their daughter's house. On 5.2.2010, when the husband of the complainant had gone for a job in a factory at Rajpardi, the appellant father and mother (deceased) went to the forest with an axe under the guise of cutting woods around 1300 hours and after half an hour, the appellant returned to the house of the complainant daughter with axe having blood stains and uttered "I have killed your mother by giving a blow of axe on head" and the above axe with blood stains was snatched away by the complainant from the appellant father and it was hidden in the house. After some time mother of the complainant reached at her house in a bleeding condition and said to her that appellant had given blow of axe and immediately mother of the complainant fell down. The complainant had called her husband who was on the job at factory who reached around 15:30 hours on bicycle and thereafter called the ambulance 108 and complainant, her husband and neighbour took the mother of the complainant at Umlla Government Hospital and was shifted later on to hospital at Bharuch where she died and accordingly, a case was registered with Zagadiya Police Station for the offence punishable under Section 302 of Indian Penal Code and on completion of investigation and following the procedure for committal, it was committed to learned Additional Sessions Judge Fast Track Court, Bharuch and registered as Sessions Case No. 64 of 2010.

(3.) MR . Mridul Barot, learned advocate, for the appellant/convict would contend that complainant in this case has turned hostile along with her husband, Kamlaben elder sister -in -law and other neighbours and therefore, relying on other evidence by learned trial Judge has resulted into miscarriage of justice and order of conviction and sentence deserves to be quashed and set aside. It is submitted that there is denial in toto by above witnesses who have not supported the case of the prosecution and simply because injuries were found on body of the person, carrying out postmortem, sending muddamal articles for FSL and report received thereon along with serological report are not sufficient to lead to the guilt of appellant. It is further submitted that even police witnesses have also tried to improve upon their version from what they have stated earlier and inflicting of blows of axe by the appellant on his wife was admittedly not seen by any one and vital link in forming chain of events of circumstances is missing it cannot be said that circumstances are established by the prosecution forming nexus with each other leading to the guilt of the accused. In a case of circumstantial evidence, unless the Court appreciating such evidence comes to conclusion not only about guilt of the accused but also it is against his innocence. In this case, the complainant has though admitted to have lodged complaint but contents therein are denied fully. That axe allegedly used for commission of crime was produced by the complainant which also creates doubt about case of the prosecution. Alternatively, it is submitted that the appellant has given blow of axe but he had no intention to kill his wife, otherwise opportunity was available to the appellant to inflict more blows and therefore, it cannot be said that the appellant has acted in a cruel or unusual manner. Therefore, the appellant is entitled for exception 4 of Section 300 of Indian Penal Code as the culpable homicide would not amount murder and case of the prosecution at the most fall under Part -I of Section 304 of Indian Penal Code and conviction and sentence can be altered. It is submitted that the appellant hails from tribal area and unaware about consequences of the crime, for which, he had no intention. The appeal deserves to be allowed accordingly.