ASHOKKUMAR MAGANBHAI VANKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this appeal the appellant challenges the judgement and order dated 11th December, 1997 passed by the learned Additional Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No.32 of 1996, whereby the appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to life imprisonment and fine of Rs.5000/- and in default to undergo simple imprisonment for a period of one year.

(2.) The case of the prosecution is that the complainant Vidyaben had lodged a complaint that she had acquired a plot at a small distance from the Harijan-vas about four years ago, wherein they had started construction since six months. As the construction was going on it was necessary to sprinkle water on the walls, hence, she and her husband had gone to the plot on 6.12.1995 at about 6:00 p.m. Her husband would fill water in a container from the Harijan-vas and the complainant would meet him half-way on the road and take the container and sprinkle the water on the walls and hand back the empty container to her husband. It was the say of the complainant that her husband had gone to fill an empty container and she had gone to sprinkle water and after sprinkling the water when she returned with the empty container she heard some commotion at the end of the Harijan-vas hence, she went to the narrow lane at the end of the Harijan-vas and found her husband lying in the lane and blood was flowing from his head. At that time, the complainant had seen Ashok Maganbhai Vankar a resident of the Harijan-vas running towards his house with a wooden pestle. She has also seen Pravin Ratnabhai Vankar and others going towards their vas (colony). The complainant went near her husband and found that he was dead, because of which she was frightened and started screaming and went to her house to inform her relatives. After a short while her brothers-in-law, Lavjibhai and Manubhai, carried her husband -s dead body and brought it home. After fetching a rickshaw from the village, her husband was seated in the rickshaw in a horizontal position, and she, accompanied by the leader of the village, one Revabhai Shamalbhai and Manubhai Dhulabhai and Lakhabhai Paragbhai, took her husband to the Idar Civil Hospital for treatment, where the doctor declared him dead. Thereafter, in connection with the death of her husband, the complainant came to know that Pravinbhai Vankar had tried to start the lights from the electric pole at the end of the Vankar-Vas and that a quarrel ensued between him and Ashokbhai Vankar and his mother Dahiben due to which Ashokbhai got hold of a wooden pestle from his house and ran after Pravinbhai. At that time there was a scuffle between the two and the complainant -s husband who had gone to fill water in the container intervened and tried to separate them, whereupon, Ashokbhai gave him one blow on his head with the wooden pestle due to which he fell down and died. The incident occurred at about 7:00 p.m. and the F.I.R. was lodged at about 21:00 hours.

(3.) Shri Jashwantsinh Babbabhai Rana, Idar Police Station, recorded the complaint (Exh.8) and the same was registered as Idar Police Station I C.R. No.171/95 for the offences punishable under section 302 of the Indian Penal Code and section 135 of the Bombay Police Act. The complaint was recorded at serial No.29 in the Station Dairy (Exh.48). He then drew the Inquest Panchnama between 7:00 to 7:30 a.m. at Idar Civil Hospital in the presence of panchas. Thereafter he sent the dead body for post mortem examination along with the inquest panchnama, police yadi and Marnotar Form (Exh.37). He then proceeded to Nana Kotda village for further investigation, where he drew panchnama of scene of offence (Exh.17) in the presence of panchas and collected muddamal articles from the scene of offence and also recorded the statements of Valabhai Khemabhai Vankar and Lavjibhai Khemabhai Vankar. Upon the accused being found, panchnama of physical condition of the accused (Exh.29), as well as panchnama under section 27 of the Evidence Act, whereby the accused voluntarily discovered the weapon namely wooden pestle (Exh.28) were drawn in the presence of panchas. The Investigating Officer thereafter sent the muddamal articles to the Forensic Science Laboratory along with yadi (Exh.49) On receiving the FSL Report (Exh.50), Serological Report (Exh.51), and the Post Mortem Report (Exh.94), the same were kept in the investigation file. Upon completion of investigation, charge sheet was submitted before the learned Judicial Magistrate First Class, Idar, in Criminal Case No.278 of 1996.