VINUBHAI TEJABHAI KALASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant came to be tried by Sessions Court, Panchmahals at Godhra in Sessions Case No.90 of 1999 for the offence of murder of Chhaganbhai Nathabhai Kalasava allegedly committed by him on 30th November, 1998 at about 10.00 p.m. in the house of the deceased by strangulation. The Trial Court, by judgment and order dated 7th July, 1999, accepted the prosecution case and convicted the appellant accused for the offence of murder and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/ -, in default, to undergo further imprisonment for a period of six months. Aggrieved by the said judgment and order, the original accused has preferred this appeal.

(2.) THE prosecution facts, in nutshell, are that the appellant and the deceased Chhaganbhai Nathabhai are interrelated and they stay at village Bhugedi of Santrampur Taluka of District Panchmahals. The deceased happened to be nephew of the appellant. The case of the prosecution is that the deceased had earlier molested the wife of the appellant and aqain on 2nd occasion also about 15 days prior to the incident, he molested the appellant's wife. The appellant, therefore, had a grievance against him and on the day of the incident, the appellant went to the house of the deceased and caused his death by strangulation. When the deceased was attacked by the appellant, he raised cries for help and as a result, Tihabhai Tejabhai, his wife Jetiben and Kalubhai Tejabhai rushed to the house of the deceased and found the appellant strangulating the deceased in a mounted position over the deceased. When they tried to intervene, it is alleged that the appellant turned on them and, therefore, they escaped. Later on, they went to the place to find that the victim had expired. They waited for the whole night and later on sent messengers to call the parents of the deceased who arrived in the evening of the next day. Thereafter, the F.I.R. was lodged by Tihabhai Tejabhai. On the basis of F.I.R., offence was registered by Fatepura Police and investigation started. The police, having collected evidence against the appellant, filed chargesheet in the Court of J.M.F.C., Santrampur who, in turn, committed the case to the Court of Sessions and Sessions Case No.90 of 1999 came to be registered.

(3.) LEARNED advocate Mr. Buddhbhatti appearing for the appellant submitted that the prosecution case depends mainly on evidence of two witnesses who claimed to be eye -witnesses. Mr. Buddhbhatti submitted that witness Tihabhai Tejabhai in his first version, as emerging from the F.I.R., has indicated that there was a quarrel between the appellant and the accused just before the incident. They saw both of them in a scuffle, grappling with each other and thereafter, the appellant pushed the victim to the floor, mounted over him and strangulated him and thereafter, the accused went away. Mr. Buddhbhatti, therefore, submitted that here is a case which would attract Exception 4 to Section 300 of I.P.C. Mr. Buddhbhatti, in all fairness, does not plead for a clean acquittal but he says that the case would fall under Exception 4 to Section 300 and, therefore, the conviction may be altered from one for murder to culpable homicide not amounting to murder, punishable under Section 304 of I.P.C.