JIVABHAI HIMMATBHAI TADVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal under Sec.374(1) of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for short) has been filed by the appellant -original accused(hereinafter referred to as 'the accused' for short) being aggrieved and dissatisfied by the judgment and order dated 6th May, 2010 passed in Sessions Case No.88 of 2008 by the learned Additional Sessions Judge, F.T.C.No.7, Vadodara, Camp at Chhota Udepur, whereby the accused has been convicted for the offence punishable under Secs.302 of IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.500/ -, in default, to suffer further rigorous imprisonment for fifteen days. Though the accused was convicted for the offence punishable under Section 135 of Bombay Police Act, no separate sentence was awarded. The accused has been acquitted of the offence punishable under Section 504 of IPC. He was given set off for the period he was in custody, if in case the State decides specific period to undergo life imprisonment under section 433 of the Code.

(2.) THE case of the prosecution in short is that a complaint was filed by complainant -Shivabhai Chhitabhai Tadvi, on 16 -7 -2008 alleging inter alia that he was doing labour work and residing with his wife, three children and widow mother. On 15 -7 -2008, he returned home after his labour work and went for prayer at Hanuman Temple. When he returned home at about 9.30 p.m., his neighbour Jivabhai Himmatbhai, the accused herein, was quarrelling with his wife by using abusive language. When the wife of the complainant asked him not to use abusive language as guests were coming to their house, the accused became furious and by asking as to who is she to intervene in their matter, gave blows with the armed knife on the left side of her chest causing her grievous injuries. The complainant and his uncle Chaturbhai called 108 Ambulance for taking her to the hospital. However, she died on the way to the hospital. The said complaint was registered with the Rangpur Police Station being I.C.R.No.21 of 2008 for the offences punishable under Sections 302 and 504 of Indian Penal Code and Section 135 of Bombay Police Act and investigation started. During the course of investigation, the Investigating Officer recorded statements of various witnesses, drew panchnama of scene of offence, sent the dead body for post mortem and arrested the accused. At the end of investigation, charge sheet was filed against the accused before the learned J.M.F.C., Chhota Udepur. As the learned J.M.F.C., Chhota Udepur did not have jurisdiction to try the case, the case was committed to the Court of Sessions at Vadodara where it was numbered as Sessions Case No.88 of 2008. The learned Sessions Judge framed charge against the accused which was read over and explained to the accused. The accused pleaded not guilty to the said charge and claimed to be tried.

(3.) HEARD learned advocate, Ms.Sadhana Sagar for the appellant -accused and learned APP, Ms.Krina Calla, for the respondent -State. Ms.Sadhana Sagar, learned advocate for the accused, submitted that though the incident in question happened in front of the house of complainant at about 9.30 p.m. in the presence of other persons in the society and guests, no statement of any of them has been recorded by the investigating agency and the persons, whose statements were recorded, have not seen the incident and they are interested witnesses and, therefore, their statements cannot be relied upon for basing conviction. Taking us through the evidence of the complainant at Exh.22 and Dr.Satishkumar Jagdishprasad at Exh.46, who examined the victim and produced case papers vide Exh.47, she submitted that there are contradictions appearing in the version given in the complaint and the evidence of doctor as well as other witnesses which are fatal to the case of the prosecution. Drawing our attention towards the map at Exh.27 and evidence of the person at Exh.26, deposition of Satish Kumar Shah, who prepared the map, she submitted that this witness has deposed that he did not see any mark/sign at the place of offence and therefore, no actual but approximate measurement was taken by him. Further, knife allegedly used in the commission of offence has been sent to FSL for analysis but there was no blood found on the knife creating a doubt about the case of the prosecution. She further submitted that there was no intention or motive on the part of the accused to cause death of the deceased. As case against the accused has not been proved by the prosecution beyond reasonable doubt, she submitted that conviction of the accused was improper and illegal. She, therefore, requested to allow this appeal by quashing and setting aside the impugned judgment and order.