BHEMJIBHAI MOTIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal calls into question the judgment and order dated 17. 06. 1999 passed by the learned Additional Sessions Judge, Banaskantha-Palanpur in Sessions Case No. 23 of 1999 convicting the appellant for offence punishable under Section 302 of the Indian Penal Code ["ipc" for short] and sentencing him to suffer imprisonment for life and pay fine of Rs. 500=00, in default to suffer S. I. for one month.

(2.) THE case of the prosecution as unfolded before the trial Court is as follows: one Motibhai had two sons namely, Premjibhai (deceased) and Bhemjibhai (accused ). Said Motibhai passed away about four years prior to the incident. Before his death, he had divided his 6 vighas of lands in equal parts and had given about 3 vighas each to both his sons. Deceased Premjibhai was a believer of Radhaswami Sect and would often visit Beas (Punjab ). Therefore, instead of cultivating his land personally, he would give out his land for cultivation to other persons of the village in return of a lump sum amount. This had remained a bone of contention between the two brothers; Bhemjibhai wanting to have his brother gave the land to him for cultivation. On his insistence, deceased Premjibhai gave his share of the land to his brother Bhemjibhai for cultivation against a lump sum amount of Rs. 1500=00 in year 1998. It is the case of the prosecution that out of this amount, Rs. 300=00 had remained outstanding and for recovery of the said amount, Premjibhai often used to visit Bhemjibhai and ask for the money. On 22. 03. 1998 at about 8. 00 O' clock in the evening, Premjibhai had gone to the house of Bhemjibhai for getting back his outstanding amount. At that time, Vaghjibhai Virsangbhai-complainant (P. W.-7), Sardarbhai Nathuhai (P. W.-8), Bhagwanbhai Dalsangbhai (P. W.-9) and Manjibhai Virsangbhai (P. W.-10) were also present. It is further the case of the prosecution that a quarrel took place between deceased Premjibhai and appellant Bhemjibhai over repayment of money and Bhemjibhai gave a threat to Premjibhai to kill him at night. Thereafter, deceased Premjibhai went to his house. Next morning, when Vaghjibhai Virsangbhai returned from his farm, he was informed about the death of his cousin Premjibhai. Therefore, Vaghjibhai lodged a complaint with the Police. After the investigation, charge-sheet came to be filed against accused Bhemjibhai for the offence under Section 302 IPC. As the offence was exclusively triable by Court of Sessions, it was committed to Sessions Court where it was numbered as Sessions Case No. 23 of 1999. The learned Additional Sessions Judge, Banaskantha at Palanpur, framed charge at Exhibit 4 for the aforesaid offence. The charge was read over and explained to the accused, who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution led the evidence. After recording of evidence was over, the learned trial Judge explained to the accused incriminating circumstances appearing against him in the evidence of prosecution and recorded his further statement under Section 313 of the Code of Criminal Procedure, 1973. In his further statement, the accused denied the case of the prosecution.

(3.) ON appreciation of the evidence, the trial Court relying upon the evidence of complainant Vaghjibhai Virsangbhai (P. W.-7), Investigating Officer-Ramjibhai Laljibhai Patel (P. W.-12) and the evidence of recovery of weapon of offence at the instance of the accused, found the charge against the accused as proved and convicted him for the offence punishable under Section 302 IPC and imposed the sentence as stated above. Being aggrieved by the said decision, the appellant-convict has preferred this appeal.