GURJI MANIYA RATHVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant original accused was convicted for offence punishable under Section 304 Part -II as well as Section 323 of the Indian Penal Code. He was sentenced to five years simple imprisonment for offence punishable under Section 304 Part -II. For offence punishable under Section 323 of the Indian Penal Code, no separate sentence was imposed. It is this judgement and order dated 17.12.1993 rendered by learned Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 2/91 that the appellant had challenged before this Court.

(2.) BROADLY stated, the case of the prosecution was that wife of appellant No.1 Hemliben had illicit relations with deceased Jivan Revla and the appellant's wife had in fact left him and stayed with deceased Jivan Revla sometime before the incident. On 30.11.1989 on account of enmity the appellant gave several stick blows to the deceased and caused such injuries which he had knowledge that it was likely to cause death. He was therefore, charged with offence punishable under Section 302 of the Indian Penal Code. As per prosecution case, the deceased was tied to a pole outside the house of father of the appellant's wife. It was further alleged that the appellant had also caused simple injuries to his wife by giving stick blows and was thereby charged for offence punishable under Section 323 of the Indian Penal Code.

(3.) PROSECUTION examined the complainant Hemliben Dipsing -PW3 at exh.18. She is wife of the accused. In her deposition, she stated that she had married to the accused about 10 years back. She knew deceased Jivan since he also was from the same village. She and her husband were doing labour work in Vadodara at the relevant time. When the incident took place she had come to her father's house at village Chatarvadivav. She and accused both had come there on the occasion of Diwali. After celebrating Diwali when she was going to Vadodara alone, she met the deceased on the way. Deceased took her along with him to his house and kept there for about 10 days under lock. Deceased thereafter, took her to Shivrajpur for buying clothes. While returning from there, she ran away. Deceased was heavily drunk. She stated that deceased died because he had consumed too much liquor. At this stage, the witness was declared hostile and permitted to be cross examined by the APP. Apparently, she did not support the prosecution though she had stated before the police that the accused had beaten up the deceased Jivan with the help of a stick and had tied him to a pole near the house of her father.