BECHARSINH GULABSINH MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this appeal filed under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), the appellant accused has challenged the judgment and order of conviction dated 15.10.2011, passed by learned Additional Sessions Judge, 3rd Additional District Court, Himmatnagar (hereinafter referred to as the "trial court"), rendered in Sessions Case No.68 of 2010, whereby the trial court convicted the appellant accused under section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") and is sentenced to undergo imprisonment for life and a fine of Rs.500/ and in default, 15 (fifteen) days simple imprisonment.

(2.) It is the case of the prosecution that the complainant namely Kanchanba w/o. Kalusinh Vikramsinh Zala, residing at Dadrada, Tauka Talod, Dist. Sabarkantha is the daughter of the deceased Ushaba. It is further the case of the prosecution that on 13.03.2010, the complainant received a phone call on the mobile of his brotherinlaw Champaksinh Vikramsinh Zala when they were in their Village Dadrada from her uncle Dilipsinh Gulabsinh, who resides at Village Pashina Muvada, informing them to come to Pashina Muvada Village immediately as her mother deceased Ushaba is ill. Upon hearing the news of illness of her mother, the complainant, her husband, brotherinlaw Champaksinh Vikramsinh Zala, his wife Gitaben Champaksinh, Ajitsinh Jugatsinh and Dhulsin Motisinh left for the parental house of the complainant by a rickshaw. When they reached the house of the complainant's parents they saw the deadbody of the deceased Ushaba lying in the kitchen of the house of the appellantaccused in bleeding condition. At that point of time, the father of the complainant the appellantaccused was not present in the house. Upon asking by the complainant to her younger brother Anopsinh about the murder of their mother, she was informed that around 08.00 hours at night, all three sons i.e. Anopsinh, Pintusinh and Jitendrasinh as well as their parents i.e. the deceased Ushaba and the appellantaccused were present in the house. When the deceased was in the kitchen, the accused got annoyed due to the delay in cooking the food; started quarreling with the deceased, strangulated her by her sari, and when she became unconscious due to suffocation, the appellant inflicted blows of axe on her face and head. Upon screaming their sons, the accused fled away from the house leaving the axe on the spot. Therefore, a complaint was lodged by the complainant daughter against his father appellantaccused for the offence punishable under section 302 of the IPC before the Talod Police Station, which was registered being I.C.R.No.15/10.

(3.) Upon registering the offences under section 302 of the IPC against the accused, the investigating officer has carried out the investigation and after following the due procedure of law, a chargesheet came to be filed before the learned Judicial Magistrate, First Class, Talod. Since, the case was exclusively triable by the court of Sessions, after providing papers under section 207 of the Code to the accused, the same was committed to the Sessions Court under section 209 of the Code. The same was registered as Sessions Case No.68 of 2010. The charges vide Exh.25 under sections 320 of the IPC was framed. The charge was read over to the accused appellant toto, who pleaded not guilty to the charges and claimed to be tried.