STATE OF GUJARAT Vs. RAMVILASSINH VASANTSINH PANDIT

JUDGEMENT

(1.) THIS appeal is filed by the State challenging the judgment of the Sessions Court, Surat dated 13.4.2007 insofar as the learned Judge did not convict the respondent -accused for offence under section 302 of the Indian Penal Code, but instead convicted him for offence under section 304 Part II and sentenced him to rigourous imprisonment for two years. Brief facts are as under:

(2.) AS per charge Ex.5, it was alleged that the respondent accused on 7/8.12.2005, between 23.30 and 4.30, had a fight with deceased Surendrasing Mathur in the office of the Manager of one Jitendra Synthetics Pvt. Ltd upon the deceased making a demand for unnatural sex. The accused thereupon banged the head of Surendrasing against a wall and a wooden bench causing his death. In order to establish the charge, the prosecution examined various witnesses. Mukesh Trivedi, PW -3, Ex.19 was working as an operator in the factory of said Jitendra Synthetics Pvt. Ltd. He was residing in a room in the said premises. He deposed that on 7.12.2005, he went to his room for dinner and came back later to the factory. His co -worker Vijay to drink water tried to open the office of the Manager. The door did not open easily. He peeped through the glass window and saw the watchman lying on the floor. Vijay got scared and came back to the witness. He saw that next to the watchman, his friend was also lying. His body was covered with a bed sheet. Watchman Surendrasing was bleeding from his head. They both awoke operator Harish and Rammahal. They thereafter called the Manager on his phone who came at the factory. They saw that Surendrasing was dead but his friend was still alive. They found that he was not wearing anything. They then dressed him and sent him to the hospital. From now on, the witness turned hostile and was so declared. In the cross -examination by the prosecution, he denied that in his police statement, he has disclosed that late at night he had heard heated exchange of words between the said two persons and that he and Harish saw that they were fighting and the accused had banged the head of the deceased on the wooden bench in the office.

(3.) SIMILAR was the version of Harishsinh Gadhia, PW -4, Ex.20. He also supported the prosecution to some extent pointing out that Surendrasing was found dead in the office of the Manager and Ramvilassing was found injured. They had called the Manager. Ramvilassing was not wearing any clothes and he was then dressed. This witness was also declared hostile and denied having disclosed that he had seen the accused and the deceasing fighting in the office of the Manager.