BHARATSINH KHEMABHAI MASANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) INSTANT Appeal has been preferred by the accused - appellant under Section 374 of the Code of Criminal Procedure against the judgment and order rendered by additional Sessions Judge, Fast Track court, Ahmedabad (Rural), on 04. 02. 2003, in Sessions Case No. 72 of 2002. Present appellant being accused of the said Sessions case, came to be convicted for the offence punishable under Section 302 of the Indian penal Code and was sentenced to undergo imprisonment of life and to pay fine of Rs. 100/-, in default, to undergo simple imprisonment of 07 days. He was also convicted for the offence punishable under section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of 01 month as well as appellant was also convicted for the offence punishable under Section 504 of the Indian penal Code and was sentenced to undergo rigorous imprisonment of 01 month. Appellant was also convicted for the offence punishable under Section 506 (2) of the indian Penal Code and was sentenced to undergo imprisonment of 03 months as well as he was convicted for the offence punishable under Section 135 of the bombay Police Act, but he was not separately sentenced for this conviction. Learned Trial Judge directed that all the sentences to run concurrently and accused -appellant was given benefit of set off for the period which he had undergone during trial.

(2.) AS per the brief prosecution of the case, on 18th of September, 2001, after 2. 30 p. m. incident occurred and complaint was given by Laxmanbhai Bhikabhai, resident of village Badarkha, Taluka -Dholka, District - Ahmedabad. In this incident, two persons died - i. e. Rajendraisnh, brother of the complainant laxmansinh Bhikabhai as well as sajjanben, mother of the complainant. It is the prosecution case that complainant laxmansinh had illicit relations with the wife of the accused and the accused appellant was having that suspicion and, therefore, though they belonged to one family, they were not in speaking terms amongst them. On the day of the incident, at about 2. 30 p. m. complainant, out of their house in Faliya, along with Udesinh and mahendrasinh was playing carom, at that time, accused came from the side of the bus stand and came near the complainant where he was playing carom and gave one blow of fist from the back of the complainant and stated that complainant was keeping illicit relation with his wife. Complainant stood up and ran from that place to his house because the accused had a knife with him and he tried to extract knife. The complainant came to his house and conveyed to Rajendrasinh - deceased, his brother that fist blow was given by the accused to him. In the meantime, the accused came near the house of the complainant speaking abuses. Rajendrasinh came out of house in Faliya and tried to persuade the accused, but accused stated that. Laxmansinh had illicit relations with his wife and he was to be done to death. Rajendrasinh attempted to prevent the accused. At that time, accused jumped and inflicted a blow of knife on the right side of the chest of Rajendrasinh and one blow was given on the side of the body. While rajendrasinh had fallen on the ground and one knife blow was given by the accused on the wrist of Rajendrasinh. Mother sajjanben, the second deceased in the incident, tried to intervene and the accused inflicted a knife blow in her abdomen. Thereafter, accused was caught hold of by complainant and he started shouting. Therefore, neighbours came down to the scene of offence and accused ran away with the knife. Both the deceased were taken to sushrusha Hospital at Ahmedabad, but during treatment, Rajendrasinh died on the same day at 19. 00 hours while mother sajjanben died on 20. 09. 2001 at about midnight. According to prosecution case, on 18. 09. 2001, from Sushrusha Hospital, navrangpura, Ahmedabad, a Vardhi which is placed at Exhibit-18, was sent to the police Station and one Constable mangalsinh Vaghabhai went to Sushrusha hospital and recorded statement of bhavubhai Prabhatsinh Masani and that statement is on record at Exhibit-18, though bhavubhai has not been examined. Thereafter, Navrangpura Police Station forwarded the papers to Bavla Police station because in the jurisdiction of that police station, the incident had taken place. Investigating Officer - Senior Police Sub-Inspector Udesinh Khatubhai, PW-13, visited Sushrusha Hospital and recorded the complaint of Laxmansinh, which is placed at Exhibit-8. A crime came to be registered and an attempt was also made to record dying declaration of the deceased but that was not possible because Rajendrasinh died at 19. 00 hours while Sajjanben was not in position to offer dying declaration. During investigation, the Investigating Officer recorded the statements of witnesses, postmortem of both dead bodies was conducted, accused was arrested on 19. 09. 2001 at about 16. 00 hours, panchnama of discovery of knife at the instance of the accused in the presence of panchas was drawn, panchnama of scene of offence was also drawn, muddamal was sent to Forensic Science Laboratory and charge sheet was filed. What is required to be noted here is this that though in arrest panchnama it is not noted that injuries were found on the body of the accused, but the accused made a complaint to the investigating Officer that he had also received injuries and was required to be sent to Medical Officer. Not only that, about the same incident, accused preferred a complaint of non-cognizable offence under Section 323 of the Indian Penal Code which was registered by the same investigating officer, which is on record at exhibit-51.

(3.) ON charge sheet being submitted before the learned JMFC, the case was committed to the Court of Sessions and learned Trial Judge framed charges against the accused on 11th of September, 2002, but the accused pleaded not guilty. Therefore, the prosecution examined the following witnesses. <FRM>JUDGEMENT_231_GLH3_2009.htm</FRM>