RAGHAV SAVJI PADSALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals are preferred from the same judgment dated 13.01.2003 of learned Additional Sessions Judge, Amreli in Sessions Case No. 72 of 2001 wherein the appellants in the first appeal were convicted for the offence punishable under Section 302 read with Section 114 of IPC and sentenced to imprisonment for life, whereas accused No. 3, who is respondent in the second appeal, was acquitted. The appellants in the first appeal are father and son and the respondent in the second appeal is widow of the first appellant and mother of the second appellant in the first appeal. In the appeal from conviction, appellant No. 1, the father, is stated to have passed away pending appeal and his appeal is not pressed. Appellant No. 2, the son, aged 27 at the time of the offence, has undergone imprisonment for nearly seven years. The second appeal is filed by the State to challenge acquittal of the respondent-mother in that appeal. Learned Counsel Mr. Pravin Gondaliya, appearing with learned senior counsel Mr. Y.S. Lakhani, restricted the appeal to urge reduction of the period of sentence on the ground that conviction of the appellant was required to be recorded under Section 304 of IPC, in the peculiar facts and circumstances of the case.

(2.) The case of the prosecution before the trial Court was that, on 16.6.2001 the accused were sowing cotton seeds in their field on the outskirts of village Kerala where the deceased victim was hacked to death at around 2.00 p.m. by repeated blows of agriculture implements like sickle and hoe. At 2.55 p.m., Lathi Police Station received a call from the residence of the deceased about the incident and the FIR (Exh.36) was registered at 3.45 p.m. wherein the brother of the deceased mentioned the names of all the three accused persons. The cause of the quarrel and attack by the accused persons was stated in the complaint to be that the deceased had asked the accused persons to remove thorns lying on the common boundary between the fields of the accused and the deceased.

(3.) The prosecution mainly relied upon the testimony of the complainant, brother of the deceased, who was examined as P.W. No. 5 at Exh.17. Deposing as an eye witness, he stated that the accused went away as soon as he proceeded to save his deceased brother. He admitted that the accused were distant relatives and there was no previous enmity among them. During his cross-examination, he deposed that when he approached the deceased, the main accused, now deceased Raghavbhai, was working in his own field and thereafter Raghavbhai came into his field and attacked the deceased. He stated that accused No. 1 - Raghavbhai was holding a sickle and a hoe and he never attacked the witness. He deposed that when he saw that his brother was dead, he went to his home and the telephone from his residence was made by someone else in his name. He admitted that the deceased was Sarpanch as well as Vice President of Lathi Taluka Panchayat. He further admitted that their field was given away for cultivation by some labourers. He also admitted that the first call was made from his residence to the police station, at his instance, and no name of any of the accused persons was mentioned at that time. It was also admitted that even as the sickle and the hoe alleged to have been used as weapons were left at the scene of the offence, there was a drizzle at that time and he could not remember how may blows were inflicted and by whom. He denied that any scuffle had taken place at the time of the incident.