KHODABHAI MANGALBHAI CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellants under Section 374 of the Criminal Procedure Code, against the judgment and order dated 18.09.1997 passed by the learned Additional Sessions Judge, Kheda at Nadiad, in Sessions Case No.223 of 1996, whereby appellant no.2 was convicted for the offences punishable under Sections 304 (II) and 323 of Indian Penal Code (herein after referred to as "IPC" for short), while accused no.1 was convicted for the offences punishable under Sections 323 and 304 (II) read with Section 34 of the IPC.

(2.) THE case of the prosecution in short is that the offence in question took place on 27th February 1996 at about 19.00 hours, at Village -Vasna Khurd, situated within the territorial jurisdiction of Mahemdavad Taluka, Dist -Kheda. It is alleged that accused no.1 Khodabhai Mangalbhai Chauhan and Dhaniben Khodabhai Chauhan, are related to the deceased Fulabhai. The accused No.1 is brother of the deceased Fulabhai and the accused No.2 is the sister -in -law (Bhabhi). The dispute between the deceased Fulabhai Mangalbhai Chauhan and Khodabhai started about the division of the agriculture land which was inherited by them from their father Mangalbhai Chauhan. It is the case of the prosecution that the deceased Fulabhai inherited ancestral property from his father Mangalbhai measuring 4 vighas. This land was partitioned and one vigha land was given to Budhabhai, who is brother of the deceased Fulabhai, 1 vigha land came to the share of the accused Khodabhai, and the deceased Fulabhai was having possession of one vigha of land. Remaining land in possession of the father of deceased was mortgaged, loan raised against the land was repaid by the deceased Fulabhai, and thereafter, he was having possession of the disputed land. It is further case of the prosecution that since the deceased Fulabhai was having possession over the dispute land, it was not liked by the accused Khodabhai and Dhaniben, and therefore, their relations were strained and the accused were asking for their share.

(3.) IT is submitted by Mr.B.S.Patel, learned advocate for the appellants that the learned Additional Sessions Judge, Kheda at Nadiad has erred in law in convicting the appellants for offence, as aforesaid. He submitted that the learned Additional Sessions Judge has failed to appreciate and consider that a false case was filed against the appellants herein on account of the fact that there was a feeling of disharmony between the complainant side and the accused. He also submitted that learned trial Judge has failed to appreciate and consider that there were material variances in the evidence of Revaben and other witnesses, whose evidences are inconsistence with the prosecution case. He also submitted that the learned trial Judge has erred in coming to the conclusion that the death of deceased Fulabhai is homicidal death. He also submitted that it cannot be said the deceased died due to the injuries caused to him, as medical case papers reveal that there was no fracture of skull. He also submitted that the learned trial Judge has not even considered the history of the case given at Vijapur Hospital. He also submitted that Revaben has not named accused no.1 in the FIR and therefore her evidence could not have been relied by the learned trial Judge. He also submitted that even the deceased had not named the appellants, though they were related and known to him.