VAGHARI VIRJI HANUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment and order with regard to the conviction and sentence awarded to the present appellants by the Addl. Sessions Judge, Junagadh in Sessions Case No. 103 of 1988 on 5-4- 1989 whereby the two appellants have been convicted for the offences punishable under Sec. 302 read with Sec. 34 of the I.P.C. and sentenced to life imprisonment and fine of Rs. 5,000.00 each. In case of failure to deposit fine, two years' further R. I. with the further order that out of the amount of fine of Rs. 10,000.00, Rs. 9,000.00 shall be paid to the complainant and her children.

(2.) The case arises out of an incident dated 2-5-1988 which happened at about 11-00 a.m. in respect of which the F.I.R. lodged on the same date at 4-30 p.m. with the Police Station, Una, District Junagadh. One Shantaben, wife of Lakhman Nanji Vaghri lodged the F.I.R. alleging that about four months back the farming of watermelon was undertaken in partnership with one Manji Shiva in the Vadi of Rambhai Garasia at the outskirts of village Sankhda. When the watermelon were ready there was a dispute with Manji Shiva. Rambhai Garasia, owner of the Vadi, removed the accused Manji Shiva and sacked him out. Manji Shiva was under a mistaken belief that he had been removed by Rambhai Garasia on the briefing and at the instance of the complainant and on this issue he had quarrelled with the complainant more than once. On 2-5-1988 at about 7-00 a.m. she and her husband went to cut and prepare the tooth brushes at the outskirts of village Khatrivada. At about 11-00 a.m., while she and her husband were preparing the tooth brushes, Manji Shiva Vaghri and one another Vaghri from Bhal side, who had been coming with him for last two three months, came from the side of village Gangda. The Vaghri, who was coming from Bhal side, was having a Kulhadi with small handle and Manji Shiva was having a knife (Chhuri). Both these persons suddenly came near the complainant and her husband and attacked her husband, namely, Lakhman Nanji with the said Kulhadi and knife and caused injuries on his person. Shantaben's husband started profusely bleeding and fell down. She raised an alarm and called for the help and for that purpose she also ran to the nearest Vadi calling to save her husband. It is also stated in the complaint that three persons came alongwith her but by that time Manji Shiva and the Vaghri, who was in his company, ran away with the arms and when she saw her husband, it was found that his intestine had come out and there was blood all over his body. When she wanted to talk with her husband, he could not speak anything and she found that he was dead. Therefore, she went to the Police for filing the complaint and gone to Sankhda. From Sankhda she took a rickshaw for going to the Police Station at Una. The Police registered the case and started investigation. The Inquest report Exh. 10 was prepared and the body was sent for post mortem and, thereafter, Panchnama of the scene of the occurrence Exh. 11 was prepared. P.W. No. 13, i.e., Apabhai Amra - Head Constable recorded the statements of Rambhai Bhikhabhai, Ramsingh Dadabhai and the complainant as also her daughter and son. The other accused Vaghri Virji Hanubhai was arrested on 9- 6-1988 and Manji Shiva was arrested on 17-6-1988. The charge-sheet was filed and the Judicial Magistrate, First Class, Una committed the accused persons to Sessions Court, Junagadh and the matter came up for trial before the Addl. Sessions Judge, Junagadh. On 30-12-1988 the charge was framed against the appellants for the offences under Sec. 302 read with Sec. 34 of the I.P.C., as also under Sec. 135 of the Bombay Police Act.

(3.) The prosecution has examined Dr. Jashubhai as P.W. No. 1 (Exh. 14). P.W. No. 2 is the sole eye-witness Shantaben, widow of Lakhman Nanji. P.W. No. 3 is Bhikhubhai, who prepared the map of the scene of the occurrence and P.W. No. 4 is Shri Jagannath Damodar Pandya, the Executive Magistrate before whom the identification parade was conducted. P.W. No. 5 Shantiben and P.W. No. 7 Punjo Rajabhai are the witnesses who had corroborated the version of the eye-witness Shantaben and P.W. No. 7 is Ram Bhikha who proved the motive. P.W. Nos. 8, 9 and 10 are the Panch witnesses and P.W. Nos. 12, 13 and 14 are the police employees. Exh. 12 is the Panchnama relating to the clothes which were taken into custody from the dead body of the deceased Lakhman Nanji. Exh. 13 is the Panchanama relating to the arrest of Vaghri Virji and post-mortem note is at Exh. 15. Map of the scene of the occurrence is at Exh. 18 and Exh. 19 is the letter through which the muddamal etc., were sent to the Forensic Science Laboratory. Exh. 22 is the Panchnama of the identification parade. Exh. 34 is the recovery memo of the Kulhadi recovered under Sec. 27 of the Evidence Act from accused No. 1 and Exh. 30 is the recovery Memo of the knife (Chhuri) under Sec. 27 of the Evidence Act from accused No. 2. The original complaint is at Exh. 36.