BAI CHATURBEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The accused-appellant in Criminal Appeal No 944/83 has been convicted for the offence under section 304 Part I (of the Indian Penal Code and sentenced to undergo R.I. for five years by the learned AddI. Sessions Judge, Nadiad, in Sessions Case No. 80/83 by his order dated 19-8-1983. The Cri. Appeal No. 1003/83 has been filed by the State under the provisions of section 378 of the Criminal Procedure Code on the submission that the accused Appellant has been wrongly convicted under section 304 Part II instead of section 302 I.P.C.

(2.) Mr. B.C. Patel, the learned Advocate, who has been appointed for the accused-appellant Chaturben and Mr. K J. Vaidya, AddI. P.P. have appeared in these appeals.

(3.) The short facts of the case are that the incident has taken place on 12-3-1983 at the house of accused-appellant at about 2.00 p.m. (noon) in village Modaj of Kheda District. It is alleged that the accused had killed her husband Abhesing. It is the prosecution case that the accused was leaving her house without her husbands consent and that often there were quarrels between the two. On the day previous to the incident the accused had similarly left her house. It is the prosecution case that at the time of the incident two sons of the accused and the deceased were playing outside near the shop. It is also the prosecution case that two sons of the accused and the deceased namely, Kantibhai, aged 7 years and Babu, aged 9 years have seen the incident and that immediately after the incident their daughter bali, who was working in the field was informed and that she came to the place of incident. It is also the prosecution case that immediately after the incident the accused was running with the blood-stained axe through the field of Surajben who stopped the accused, gave her water, pacified her and the axe from her was taken and given to Kalabhai, son of Khodabhai. Prabhat and Kalabhai, who had followed the accused had come there, Khodabhai filed the complaint at Ex 8. Said Kalabhai and produced the axe with the Panchnama at Exh. 16. It is the case of the prosecution that the accused has given injuries to her husband with the said axe by using blunt portion of the axe. The blows were given on the head as well as on the chest of the deceased. Dr Naishadkumar (Exh. 5) bad performed the post-mortem examination of deceased Abhesing on 12th March 1983 at6 00 p.m. and that he found the following external injuries on his body: (