KOLI NATHABHAI HARIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Before we deal with, discuss and decide the merits of this appeal, it may be stated first that this appeal was earlier heard by this Court and came to be dismissed at the threshold (coram: N.J. Pandya and S.M. Soni, JJ.) on 25.7.1991 which was questioned before the Honourable Apex Court by filing Criminal Appeal No. 322 of 1996 which was allowed and the order impugned before the Honourable Apex Court dated 25.7.1991 was set aside and the matter was remitted for fresh disposal by its order dated 10.9.1997. That is how, this matter came to be readmitted in its original number and we were called upon to decide and adjudicate upon, on merits in light of the directions issued by the Honourable Apex Court.

(2.) . The main theme of this appeal is the macabre complicity on the part of the appellant-accused Nathabhai in causing murder not only in unusual way but in very cruel way of his own daughter who was just three years old and that too by throwing her in deep well, snatching away from the mother of the child, which is held proved by the learned Sessions Judge Bhavnagar in Sessions Case No. 109 of 1989 holding the accused guilty for the offence punishable under Sec. 302 of the IPC, which is assailed by the accused by filing this appeal before us under Sec. 374 of the Code of Criminal Procedure, 1973 ('the Code')

(3.) . Shortly stated, the facts of the prosecution case are that the accused Nathabhai Haribhai who was not on good terms with his wife Jombai, got a baby girl out of the wed-lock who, unfortunately, was physically handicapped. On 7.7.1989, the accused took his wife Jombai saying that he wanted to take her to village Borvav. Therefore, wife Jombai along with baby girl Bharti started from village Fachra for going to Borvav. They went to Palitana in a tempo. The accused thereafter told his wife that he would like to visit the i'ielcl of his maternal uncle situated in the outskirts (sim) of Palitana. Therefore, the accused, his wife and Baby Bharti went to the Sim of Palitane town. The marriage between the accused and Jombai was customary second marriage which was also broken owing to bad blood between them. Baby Bharti was with the mother after going to the Sim area. The accused asked his wife to hand over Baby Bharti to him to which his wife strongly countenanced and refused to deliver her. The accused desired to run away to Surat and his wife was not willing to go with him. During the course of (heir stay in the Sim, one Vashram Rambhai had met them who took them to his residence and as usually it happens in case of rural villager, offered tea at his residence.