KALPESH @ TINO JAYANTIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application under Section 439 of the Code of Criminal Procedure, 1973 is filed by the applicants, who are the accused of offences punishable under Sections 302, 504 and 114 of the Indian Penal Code, 1860 read with Section 135 of the Bombay Police Act, registered against them vide C.R. No I-36 of 2007 with Kothamba Police Station on 18th April, 2007, before even the report under Section 173 (2) of Cr.PC is filed by the Investigating Agency.

(2.) The case of the prosecution is that Mrs. Niruben, wife of the deceased Gordhanbhai Kantibhai Patel, residing at village Chapatiya with her husband and two children, lodged the above F.I.R. on 18th April, 2007 at about 11-45 a.m. for the incident alleged to have taken place on 13th April, 2007 early in the morning at about 5-30 a.m. As per the informant, on 13th April, 2007, at about 5-00 a.m., she had gone to milk dairy for supplying milk and while she was returning from the dairy, Kalpesh @ Tino Jayantibhai Patel-applicant No.1 herein, whose house is situated opposite to the informant, abused her and told that why she was passing through the land owned by the applicants. The above facts were narrated by the informant to her husband Gordhanbhai, and therefore, her husband questioned said Kalpesh-applicant No.1 herein that why he abused his wife and on saying so, the applicant No.1 took out a wooden log of a cart and inflicted first blow on the left side of the abdomen, second blow was inflicted on the right hand and third blow was inflicted on the back side of the ear of the deceased Gordhanbhai. Along with the applicants, one other person named Jayantibhai Mathurbhai Patel was also present, who instigated the applicants to kill the husband of the informant. The applicant No.2 also inflicted kick and fist blows on the deceased. Thereafter, due to intervention of the elder brother-in-law of the complainant and his two sons, husband of the informant was brought to the residence and as the husband of the informant made a complaint of severe pain, he was taken to the hospital in nearby town Lunawada and thereafter, he was taken for treatment at V.S. Hospital, Ahmedabad, where after the treatment, the husband of the informant expired.

(3.) It is stated by the informant that initially the cause of the death was not disclosed to the doctor and the complaint was not lodged on very same day in view of the fact that the applicants-accused are her neighbours and belong to the same caste and to avoid harassment by the applicants, but thereafter, it was decided to file the complaint with correct facts.