KESHAVJI ARJAN CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant who was original accused in Sessions Case No. 72 of 2000 came to be convicted by Additional Sessions Judge, Fast Track Court, Rajkot on 30.10.2002 for the commission of offence punishable under Section 302 of the Indian Penal Code ('IPC', for short) and was sentenced to undergo life imprisonment and fine of Rs. 1500/ - and in default of payment of fine, S.I for three months for the offence punishable under Section 302 of the IPC.

(2.) ALONG with the appellant, Keshavji Arjanbhai Chauhan, who was original accused No. 1, three accused persons came to be tried by the trial Court for the offences punishable under Section 498A, 302 r/w. Section 34 of the IPC. The original accused No. 2 Arjanbhai Alabhai happens to be the father of appellant No. 1 Keshavji Arjanbhai and original accused No. 3 Tejuben happens to be the mother of the appellant Keshavji. The appellant married deceased Vijuben before about 13 years from the date of the incident. The incident occurred on dated 3.3.2000, between 22 hours to 24 hours in the house of the appellant and two co -accused, namely, Arjanbhai Alabhai and Tejuben Arjanbhai. It is alleged that the deceased Vijuben was ill -treated by the accused persons and she was subjected to physical and mental torture. At the time of the incident, it is alleged that original accused No. 2 Arjanbhai and original accused No. 3 Tejuben caught hold of the deceased Vijuben and the appellant accused No. 1 Keshavji inflicted blows with spade. The deceased succumbed to the injuries. Nagjibhai Chanabhai, brother of the deceased reported the incident to the Padadhari Police Station and the FIR was registered, statements of material witness were recorded, necessary panchnamas were drawn in presence of Panchas, clothes of the deceased and of the appellant and two co -accused persons were seized. After collecting required materials for the purpose of lodgment of chargesheet, chargesheet came to be filed in the court of learned Chief Judicial Magistrate, Rajkot. Since the offence was exclusively triable by the court of sessions, learned Chief Judicial Magistrate committed the case to the Court of Sessions at Rajkot, which was numbered as Sessions Case No. 72 of 2000.

(3.) THE learned trial Judge framed charge against the appellant and two co -accused persons at Exh.1 for the offences punishable under Sections 302, 498A r/w. Section 34 of the IPC, to which they did not plead guilty and claimed to be tried. Thereupon the prosecution examined 13 witnesses and produced necessary documentary evidence. After the prosecution concluded its oral evidence, the learned trial Judge recorded further statements of the accused persons, including the appellant under Section 313 of the Cr.P.C., and they denied generally all the incriminating circumstances put to them by the learned trial Judge and so far as the appellant is concerned, he stated that he has no house in the farm. The house is in the Village itself. At the time of the incident, he was not available in the Village and he had gone out. When he came back to his home, he came to know that his deceased wife Vijuben had gone to answer the nature's call and there she died. After appreciating the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge recorded conviction of the appellant original accused No. 1 Keshavji for the offence punishable under Section 302 of the IPC. However, the appellant No. 1 Keshavji was acquitted of the offence punishable under Section 498A of the IPC. The two co -accused persons, namely, accused No. 2 Arjanbhai and accused No. 3 Tejuben came to be acquitted of all the charges levelled against them. It is submitted that the State has not preferred any appeal challenging the acquittal of original accused No. 2 Arjanbhai and original accused No. 3 Tejuben, nor the acquittal recorded by the trial Court of the appellant accused No. 1 Keshavji for the offence punishable under Section 498A of the IPC came to be challenged by the State by preferring any appeal. Learned advocate Mr. Patel for the appellant at the outset submitted that on the same set of evidence, almost similarly situated two accused persons, namely, accused No. 2 Arjanbhai and accused No. 3 Tejuben came to be acquitted by the trial Court, but, the appellant came to be convicted for the offence of murder. It is submitted that all the relative witnesses, relatives of the deceased Vijuben, including her own minor daughter Shital, in their evidence, did not support the case of the prosecution and they were declared hostile witnesses. The trial Court recorded the conviction of the appellant solely on the basis of the assumptions and presumptions and even in paragraph 16 of the impugned judgment, the trial Court clearly recorded that the appellant was convicted on the basis of presumption.