MANGUBHAI RANGALABHAI GHANAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) INSTANT appeal is preferred under Section 374 of the Criminal Procedure Code, 1973 against the judgment and order dated 15th November, 2003 rendered by learned 5th Joint District & Sessions Judge, Fast Track Court, Chhotaudepur in Sessions Case No.33 of 2002 whereby the present appellant - accused came to be convicted by the trial Court for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to undergo rigorous imprisonment of one month. The appellant - accused was also charged for the offence punishable under Section 504 of the Indian Penal Code. The trial Judge acquitted the appellant - accused for the aforesaid offence and there is no appeal against the said acquittal.

(2.) AS per the brief facts of the prosecution case, the brother of the accused who is deceased in the incident named as Bachubhai Rangalabhai was residing along with his wife Ditaliben and children at Village : Malaja, Taluka : Chhotaudepur. Accused was also staying at Village : Malaja and were doing labour work for their maintenance. On 26th March, 2001, it was informed to deceased and the accused that their maternal uncle one Toyabhai had died at Village : Lagami and, therefore, accused - Mangubhai and deceased Bachubhai both went to Village : Lagami from Village : Malaja. According to the customs in the caste, the relatives were required to gift a cloth to deceased Toyabhai, but the deceased Bachubhai had no financial source to gift such cloth. While accused gifted cloth to deceased maternal uncle Toyabhai. After the cremation ceremony, accused as well as deceased returned to Village : Malaja at 6.00 p.m. The deceased, after taking meal at night at 7.00 p.m. to 7.30 p.m., was sleeping in a cot in courtyard of their house, at that time accused came there and started abusing deceased Bachubhai. The accused was alleging that why deceased Bachubhai did not gift a cloth to their maternal uncle who had died. The deceased, thereupon, replied that he had no wherewithal to gift a cloth to deceased maternal uncle. On that, accused became angry, he ran towards his house, which was nearby, took arrow and bow from his house and pelted the arrow on the body of the deceased. The arrow was hit and penetrated on left side around belly button of the deceased and, therefore, the deceased had fallen down on the ground. On hearing the commotion, Nathubhai Chhagalabhai, Mathurbhai Chhagalabhai and Gagubhai Chhagalabhai ran to the scene of offence and in the meantime, thereafter, accused ran away from the spot. The deceased was taken to Community Health Centre at Chhotaudepur where he was treated by PW-6 Dr.Kailashchandra Ramlalji Devada. In the meantime, Ditaliben wife of the deceased went to Chhotaudepur Police Station and gave her complaint in respect of the incident to P.S.I. Mahimakumar Narendrabhai Pandya at 23.45 hours. The crime came to be registered, the investigation started. The deceased was required surgery and, therefore, he was transferred to Surgical Ward. It appears before that in pursuance of the police yadi, Executive Magistrate Bharatbhai Udesinh Rathva recorded dying declaration of the deceased on the same day which is placed at Ex.13 and accordingly, the accused pelted the arrow upon the deceased which became fatal. It appears that after surgery, during the treatment deceased Bachubhai died on 1st April, 2001 and PW-6 Dr.Kailashchandra Ramlalji Devda performed postmortem and postmortem note is placed on record vide Ex.33. The cause of death reported to be septicemia due to penetrating wound in the abdomen. On crime being registered and deceased Bachubhai died during the treatment, Investigating Officer prepared inquest panchnama, panchnama of scene of offence and from the scene of offence, front part of arrow was recovered and was sent to F.S.L. Initially, the offence came to be registered under Section 326 of the Indian Penal Code and, thereafter, it was converted under Section 302 of the Indian Penal Code. A charge-sheet came to be submitted against the accused - appellant in the Court of Judicial Magistrate, First Class at Chhotaudepur, who in turn committed the case to the Court of Sessions and the case was committed to the trial Court being Sessions Case No.33 of 2002.

(3.) THE prosecution has also tendered the following documentary evidence.