FULABHAI HARIBHAI GADHAVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) INSTANT Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure against the judgment and order dated 30th of May, 2003, rendered by learned Special Judge (Atrocity), Third Fast Track Court, Mehsana, in Special (Atrocity) Case No. 135 of 1999. The said appellant was the accused in the said Special Case and was charged with the offences punishable under Sections 302 and 506(2) of the Indian Penal Code and also for Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1985, the Trial Judge acquitted the accused appellant for the offence punishable under Section 3(1)(10) of the Prevention of Atrocities Act, but convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/ - , in default, to undergo imprisonment of 2 months and was also convicted for the offence punishable under Section 506(2) of the Indian Penal Code and was sentenced to undergo simple imprisonment of six months and to pay fine of Rs. 100/ -, in default, to undergo imprisonment of 10 days. Hence, this Appeal by the appellant against his conviction and sentences.

(2.) AS per the brief case of the prosecution, the deceased in this case is Keshaben, wife of Samantbhai Vala. Samantbhai Vala along with his wife Keshaben and three children - two daughters - Asha and Anita and son Hasmukh, were residing at Ahmedabad with their parents. Thereafter, during 1992 -93, Samantbhai, his wife and children came to Kalol and started residing near Badilia Jhapa on rent and nearby their house, one Bhagyodai Wiring factory was situated where accused was serving as Supervisor. Accused, in that period, started coming to the house of the complainant and their relationship became thick. At that time, the complainant was doing the labour work and, therefore, accused induced him to get job in a factory, named, Sijhar India at Rs. 600/ - as monthly salary and thereafter accused started frequently visiting the residence of the complainant, even in absence of the complainant. Thereafter, complainant changed job with the help of the accused and was doing work at Sindhbad Hotel. The visits of the accused at the residence of the complainant was continuing even if the complainant changed residence. Ultimately, before six months of the incident, which occurred on 12th of April, 1995, accused enticed the complainant and he represented before him that one room residence, near Saij, GIDC, adjoining one closed factory, could be obtained for the complainant and also promised that when the nearby closed factory starts functioning, he would also get job for the complainant and, hence, the family of the complainant started residing near Saij, GIDC. The rent of the said one room house was Rs. 125/ - per month. The said factory and the said residential premises belonged to one Labhshankar. The family of the complainant was staying in the said room before last six months of the incident. Accused also gave Rs. 500/ - to the complainant, by which the complainant started pan -beedi shop near the house. Wife of the complainant was doing work of pin sorting in the factory run by one Amrutbhai Mangabhai. During this period, the accused was frequently visiting the house of the complainant even in the absence of the complainant. In the factory in which the wife of the complainant was working, the accused was Supervisor. The wife of the complainant deceased Keshaben was attractive and, therefore, the complainant had suspicion that accused had illicit relationship with his wife. Therefore, he had warned accused not to visit his house, but accused ignored him and threatened that preventive steps on the part of the complainant would result in dire consequences and complainant would be beaten by him. On the day of the incident i.e. on 12th of April, 1995, at about 8.30 a.m., complainant along with his friend Sopanji Nathaji had been to market for purchasing wholesale goods for his pan -beedi shop. His wife deceased Keshaben also wanted to purchase one necklace (mangalsutra) and arrangement was made, therefore that after cooking food for the kids, deceased Keshaben has to join the complainant in the market. Complainant and his friend Sopanji Nathaji both completed purchasing and waited for the wife of the complainant, but she did not turn up and, hence, complainant sent Sopanji Nathaji with the goods to his residence and instructed that the goods which were purchased were to be kept at the residence of the complainant and Sopanji was also requested to send wife of the complainant at the market. Sopanji went to the house of the complainant and returned within 10 minutes on bicycle. He was frightened and asked complainant to go to the house. Immediately on the cycle of Sopanji, complainant came to his house and found that the house was closed from outside, which he opened, and in the house he noticed that his wife was lying in burnt condition and had already been died. His children were sitting near the factory and were crying and, therefore, he asked to the eldest daughter that what had happened. Asha stated that after the complainant left the house, the accused came to their house and had taken the deceased inside the house and started quarreling and thereafter accused burnt their mother and thereafter accused locked the door of the house from outside and ran away from that place. In the meantime, accused was noticed by the complainant and he was confronted and was asked by the complainant about the incident and the accused threatened the complainant that if the complainant uttered a word about the incident to anybody, he would also be done to death and, therefore, the complainant at initial stage filed a report before Kalol Taluka Police Station, on 12.4.1995, at about 19.50 hours, which is at Exhibit -33, wherein he only stated that he had noticed his wife in burnt condition inside the house and thereafter he made arrangements to call his parents from Ahmedabad. This report is placed at Exhibit -33 and was treated as accidental death information. Accident death inquiry was conducted by Dilipbhai Balvantrai Swaminarayan, Police Sub -Inspector of Kalol Police Station, but thereafter the parents of the complainant came to Kalol and at about 0030 hours on 13.4.1995, complainant filed a detailed FIR before Kalol Taluka Police Station which was recorded by PW -8 Markandrai Trambaklal Mehta, PI, Kalol Taluka Police Station, which is placed at Exhibit -28 and from that, crime came to be registered. He recorded the statements of Ashaben - daughter of the deceased, Sopanbhai Marathi and Narayansinh Puwar, etc and since the offence pertains to atrocities, Deputy Superintendent of Police, SC - ST Cell took over the investigation on 13th of April, 1995. After the investigation, he filed the charge sheet in the Court of learned Judicial Magistrate, First Class. The case thereafter was committed to the Special Court i.e. Court of Sessions and made over to the Trial Court.

(3.) THE prosecution therefore examined 9 witnesses as under :