JORIYABHAI THATHIYABHAI NAYAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Criminal Appeal is directed against the order dated 20th May, 1989, passed by the learned Additional Sessions Judge, Chhota Udepur, in Sessions Case No. 5 of 1989, whereby the appellant has been convicted for the offence under Sec. 302 of I.P.C. and sentenced to life imprisonment and fine of Rs. 200.00, in default of which, further imprisonment for a period of three months.

(2.) case arises out of the incident dated 1st October, 1989 between 7-00 p.m. and 9-00 p.m. at village Chikhli, Taluka-Chhota Udepur of District Baroda at the outskirts of village Panvad-Qwant. With regard to this incident, one Hegiben - wife of the deceased Manubhai Sendhabhai Rathva reported at outpost Panvad that on the previous evening at the time of sunset at about 6-00 p.m., she alongwith her husband Manu Sendha Rathva and her two sons and two daughters were sitting in their house in the village and at that time one Joriya Thathiya came to her house and asked her husband that "Kothivalu field" had been given to him for cultivation, but there was lot of surplus and waste growth of plants which should have been removed, and why he had not removed the same and therefore, let us go to the said field. Saying so, the accused Joriya Thathiya took Manu Sendha Rathva alongwith him. At about 9-00 p.m. while she was sitting in the house after closing the door, the accused Joriya Thathiya came with phaliu (a small piece of cloth which is wrapped on the head, like turban) and therefore, she asked Joriya Thathiya as to where was her husband and Joriya replied that he was lying in the field of Shaniya Ghughra and ran away. It was further reported that her "devar" Monia Sendha Rathva who lived separately accompanied her to Shaniya Ghughra's field and there they found that her husband was lying dead. Her "devar" looked with the aid of the battery and found that her husband's body was injured on the back of the neck and there was a bleeding on the right hand and the blood was also lying on the ground and therefore, she alongwith her "devar" went to Police Patel Namla. The Police Patel told them to file a complaint at Panvad Police Station. According to her, since it was night time, she could not go to file a complaint and went in the morning of 2nd October 1988 and reported that her husband Manu Sendha Rathva has been killed by Joriya Thathiya Rathva with the use of "Palia" which he was having at the time when he came to call her husband. On the basis of this report (Ex-23), the case was registered against the accused under Sec. 302 of I.P.C. by the police and the investigation was started. PW-10 Somabhai who was in-charge of Police Station, Qwant on 2nd October 1988, has stated that in the morning of 2nd October 1988, the Police Constable-Bhupendrasinh Indrasinh of Panvad Outpost came with Occurrence Report No. 15 of 1988, on the basis of which the case was registered at No. 139 of 1988 at Qwant Police Station under Sec. 302 of I.P.C. He went to Chikhli and visited the site, prepared the inquest report and the dead body was sent for post-mortem to Medical Officer, Panvad. Panchnama of scene of offence was prepared, soil was also collected from the scene of the offence; Paghdi (Phalia) as shown by the wife of the deceased was taken into custody; blood-stained clothes on the dead body were also taken into custody. Inquiries were made from the accused who revealed that he was prepared to produce "Palia" which had been concealed and lying in his house and the said "palia" was recovered at the instance of the accused as it was concealed in the house of the accused. At the time of arrest of the accused, the arrest-memo was prepared and the blood-stained "Lungi" of the accused was also taken into custody. This witness PW-10 has also stated that there were injuries on the left leg, left hand and near left eye of the accused. Blood-stained clothes, blood socked soil and the "Palia" were sent for examination. It was also stated that he had recorded the statements of Mania, Ramtiben, Hasan, Ranchhod, Manji Sendha, Buchia, Kalia, Namla Dalu, Sarapada etc. The accused was sent to judicial custody and the charge-sheet was filed.

(3.) In the trial, charge under Sec. 302 of I.P.C. was framed against the present appellant vide Ex. 3 page 8 on 18th February 1989 and on such charge being denied by him, the trial was conducted, and on the basis of the trial, the appellant has been convicted and sentenced as above by the learned Additional Sessions Judge, Baroda, camp-Chhota Udepur.