VALA MANA VAGHRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Valabhai Malabhai and three others by this appeal have challenged the impugned judgment and order dated 22-7- 1994 rendered in Sessions Case No. 32/94 by the learned Additional Sessions Judge. Bhavnagar, wherein on their coming to be tried for the alleged offences punishable under Section 302 read with Section 34 of IPC at the end of the trial, were ordered to be convicted for the same and sentenced to undergo RI for life and to pay a fine of Rs. 500/- each.

(2.) To briefly narrate the prosecution case, the incident in question, wherein Bhikhu Bijal came to be poisoned to death by Valabhai Malabhai and his three brothers namely Bhankabhai, Rupabhai and Balabhai, took place on 27-11-1993 at about 5-00 p.m. in the Sim of village Dungarni Rajasthali (Palitana). The prosecution case gets unfolded from the evidence of PW-4 Abhram Bijal who happens to be brother of the deceased Bhikhu Bijal. According to him, the appellants-accused were his distant relatives. On the date of the incident, all the accused persons had come to his house alleging that the 'nosering' of Lakhuben was allegedly stolen by Bhikhu Bijal. This was denied and accused were told that Bhikhu was innocent and that he had not committed any theft. Thereafter, the accused persons went away threatening that they will be filing a police case against Bhikhu. Once again at about 1-00 p.m. all the four accused persons came to his house to take Bhikhu with them which was objected to PW-4. At this stage, that accused persons assuring him stated that after all they were relatives and were taking Bhikhu only with a view to pursuade him. Thereafter till 5-00 p.m. Bhikhu did not return home and in the meantime, PW- 4 went to the school in search of the cows. At that time, he saw his brother-Bhikhu coming stumbling from the opposite direction, whereupon he rushed and caught hold of him. On making inquiry as to what had happened to him Bhikhu stated that "Aaropioe Bal-Jabrithi Dava Pivravi Didhi Chhe" meaning thereby the accused persons have forcibly made him drink some medicine. At that time, smell of some medicine was coming out from the mouth of Bhikhu. On making further inquiry as to where the medicine was given to him, Bhikhu could not utter a word further as he started vomitting and became unconscious. Thereafter, PW-4 took Bhikhu to his house and therefrom to Sir Mansinhji Hospital, Palitana, where PW-2 Dr. V. P. Boricha examined him (Bhikhu) at 15-15 hours. According to this Doctor, Bhikhu was brought to him by his family members at 5-15 p.m. and on examining him, he was found to be unconscious smell of poison was coming from his mouth, his pupils were moving round, respiration has decreased, etc. Looking to the serious condition of Bhikhu, he advised the attending relatives to take him to some other hospital for the treatment and simultaneously also informed the police about the incident. This information was taken down by PW-9 Nanu Kalu, Head Constable, Palitana Town Police Station, who entered the same in the Station Diary, which is produced at Ex. 41. The medical certificate in this regard was also issued by the said Doctor. Accordingly, Bhikhu was taken to PW-1 MO Vithalbhai Premjibhai, Sir T. Hospital, Bhavnagar. While on way to it, Bhikhu expired. Thereafter, PW-10 R. B. Zala, Duty Head Constable at Sir T. Hospital recorded the FIR (Ex-32) as given by PW- 4. On the basis of this information, after the investigation was over, the appellant- accused came to be charge-sheeted for the aforesaid alleged offences to stand trial before the Sessions Court at Bhavnagar.

(3.) At trial, the appellants pleaded not guilty and claimed to be tried. The defence of the appellants was that of total denial.