SUSHIL HARIRAM DUBEY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant was accused before Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, ('Atrocities Act' for short), Kutch at Bhuj in Special Case No.67 of 1998. He came to be tried for the offence of murder of Vishnu @ Vishensinh Madanlal allegedly committed by him on 21.1.1997 at about 14.45 hours at Khodiyarnagar Zupadpatti located near FCI colony, Gandhidham in Kutch district. Since the deceased belonged to Scheduled Caste, offence under Atrocities Act also came to be registered. The appellant was charged for offence punishable under Section 302 of Indian Penal Code and Section 3(2)(5) of the Atrocities Act to which he pleaded not guilty and came to be tried. The trial Court concluded that offence under the Atrocities Act was not properly proved by the prosecution and recorded acquittal therefor but convicted the appellant for the offence of murder and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months. Aggrieved by the said judgment and order, original accused has preferred this appeal.

(2.) The facts of the prosecution case in brief are that the deceased was staying with his family in Khodiyarnagar Zupadpatti. One lady Meera was also staying in the said Zupadpatti with her child. Her husband having expired, the appellant was associated with her and used to stay with her place. On the day of incident, the children of the appellant and said Meeraben had some quarrel on petty issue of fetching water. Pursuant thereto, he said that the deceased went to the house of Meeraben to rebuke her and asked her to control her child. It is alleged that at that time, the appellant was in the house of Meeraben resting on a cot. When the deceased started complaining about the behaviour of Meeraben's child, the appellant flared up and asked the deceased to leave or else something more serious may happen. In that, there was some heated exchange of words and the appellant drew out a knife from his waist-wand and inflicted injuries on the deceased. At that time, one Jimmy Bhurabhai, Kishori Harivansh and Shardaben Bhura were also present. After the incident, it is alleged that the appellant went away. The deceased was taken to Rambag hospital at Gandhidham where he was given some treatment and then was referred to GK General Hospital at Bhuj. The deceased was admitted in the hospital where, while under treatment, he expired on 23.1.1997. The appellant was not traceable as per the prosecution and surrendered before the learned Magistrate, after about 16 months. Thereafter, it is alleged that he discovered knife with which he allegedly caused injuries to the deceased. While the appellant was under treatment at Gandhidham hospital, FIR was recorded by police, so also his dying declaration by Executive Magistrate.

(3.) We have heard learned advocate Mr.P.P. Majmudar for Mr.S.P. Majmudar for the appellant and learned APP Mr.Desai for respondent State.