RAJUBHAI SHANKERBHAI WAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is preferred by the appellant convict [original accused] [hereafter to be referred to as "the accused] under Section 374 read with Section 386 of Code of Criminal Procedure challenging the judgment and order of conviction dated 19. 2. 1991 rendered by the Additional Sessions Judge, Nadiad in Sessions Case No. 75 of 1990, whereby the appellant was held guilty of the charge of offences punishable under Section 302 of I. P. C. The learned trial Judge convicted the appellant-accused and sentenced him to life imprisonment and to pay fine of Rs. 5,000/- and in default of payment of fine, sentenced him to undergo simple imprisonment of six months. The judgment is challenged on various grounds mentioned in para-5 of the memo of the appeal. Mr. Nitin Amin, learned counsel appearing on behalf of Ms. Amee Yajnik for the appellant has taken us through various grounds of challenge and has submitted that the order of conviction and sentence is not sustainable, more particularly, in the background of the facts and circumstances emerging from the evidence led by the prosecution, and has submitted that the conviction being unwarranted, the accused deserves acquittal.

(2.) IT would be appropriate to state facts alleged by the prosecution leading to initiation of trial of Sessions Case No. 75 of 1990. According to the prosecution, Jayantibhai, real brother of PW 3 Kanu Parsottambhai was murdered. P. W. 3 Kanu and deceased Jayanti had four more brothers and thus, they were total six brothers. Bachubhai is the eldest. Deceased Jayantibhai was younger to Bachubhai. Ramesh was younger to deceased Jayanti, fourth brother was Kanubhai himself, firth brother was Ashokbhai and the sixth brother was Rohitbhai. Deceased Jayanti and Kanu [p. W. 3 ] were serving with transport businessman Mohammedali, resident of Vaso of District Kheda. They were working as driver and cleaner. Jayanti was driver of truck no. GRG 7305 and Kanu [p. W. 3] was cleaner. One Babusing was another driver in the transport company of Mohammedali. According to prosecution, Kanu [p. W. 3] had married to Minaben, real sister of appellant-accused. One another sister of accused, namely, Kokila was married with Ramesh, elder brother of Kanu [p. W. 3]. It is alleged that on account of a discord, Mina, wife of Ramesh was residing with Kanu [p. W. 3]. So, two sisters, namely, Mina and Kokila were staying with Kanu [p. W. 3] and these relations, as alleged by the prosecution were accepted by both the families including elder brother of Kanu [p. W. 3], wife of Kanu and Ramesh. On the date of the incident, both, i. e. wife of Kanu [p. W. 3] and wife of Ramesh were at Anand at their parental place, i. e. at the residence of the accused. Wife of the accused is originally resident of town Vaso and accused had been to his in-laws' home Vaso three days prior to the incident in question. As per the prosecution, Kanu [p. W. 3] being brother-in-law of accused had told the accused that he and the deceased Jayanti were to go to Jamnagar with a truck and the accused Rajubhai, if wished, could accompany them and may join them. The accused Rajubhai thereafter joined them and accompanied them to Jamnagar on 22nd November, 1989. All of them, i. e. accused Raju, Kanu [p. W. 3], deceased Jayanti and another driver Babusing had come back from Jamnagar after loading Soda Ash in their truck in the early hours at about 5. 00 a. m. in the morning and had taken snacks at Vaso. Initially, truck was to be taken to Nadiad as the same required repairing. It is the case of the prosecution that the truck was to proceed to Dhuliya [maharashtra] and Kanu [p. W. 3] had asked the accused that whether he wanted to join them further or wanted to stay at Vaso at his in laws' home as his wife was there at her parental home. To the query of Kanu [p. W. 3], the accused had told Kanu that he would join them as he wanted to go to Anand so that he can drop down at Anand. Therefore, accused, Kanu [p. W. 3], deceased Jayanti and driver Babusing had left for Nadiad at about 8. 00 a. m. In the morning, they had met Mohammedali, their Sheth [boss] near Dabhan village near Nadiad, where Mohammedali instructed them to take the truck to Nadiad for necessary repairs. The truck was then taken to Nadiad at about 3. 00 p. m. and after getting the truck repaired, they had left for Dhulia. It is alleged that at about 4. 00 p. m. On that very day, i. e. on 22nd November, 1989, the truck reached at Samarkha Chokdi where the deceased Jayanti had stopped the truck. At that time, accused Raju had told the deceased Jayanti to have cigarette smoking. Babusing and Kanu [p. W. 3] had remained with the truck. Deceased Jayanti and accused went to have pleasure of smoking. It is further alleged that after having smoking, they were returning towards the truck and at that time, accused Raju had given knife blows to deceased Jayanti and done him to death. It is also the case of the prosecution that Kanu [p. W. 3] had tried to save his brother, but the accused, with open knife had run after him and therefore, Kanu had run away and after taking a lift on a scooter, had reached Baroda. The scooterist dropped him near Baroda Railway Station, from where Kanu boarded a train for Nadiad. Thereafter, he reached his town Vaso in a truck and informed the family members about the incident.

(3.) THE allegation of the prosecution is that in the meanwhile, Babusing had reached to Mohammedali, his Sheth [boss] and informed him about the incident and they had reached at the place of the incident. Before the arrival of Mohammedali and Babusing on the spot of the incident, Iqbal, brother of Mohammedali had already reached at the place of incident and he had also attempted to inform his brother Mohammedali about the incident. Before Mohammedali, Babusing and others reached at the spot of incident, Police Patel of village Gamdi had seen the dead body of the deceased Jayanti lying some feet away from the National Highway No. 8 at Samarkha Chokdi and he informed the police about the dead body lying there. He also informed that a man was murdered. Therefore, the police recorded a complaint of Police Patel Ramesh Shana at about 18. 15 hrs. The police had started investigation on the strength of the complaint given by Ramesh Shana. When Mohammedali and Babusing reached at the place of incident, police was present there. The police investigated the crime and ultimately found that the accused had killed the deceased Jayanti. It is pleaded by the prosecution that the accused was under a belief that matrimonial life of his two sisters was spoiled by this deceased Jayanti. Therefore, he took the deceased to have pleasure of cigarette smoking and assaulted him with knife and killed him. Learned trial Judge after appreciating the oral as well as documentary evidence led during the course of trial by the prosecution held that the prosecution had satisfactorily established the guilt of the accused beyond doubt and therefore, he was required to be convicted and was accordingly convicted.