J.B.PARDIWALA,J. - (1.)The present appeal is directed against judgment and order dated August 6, 2005 passed by the Presiding Officer, Third Fast Track Court, Porbandar in Sessions Case No. 17 of 2004, convicting the accused -appellant for the offence of murder punishable under Section 302 of IPC and for the offence of robbery with attempt to cause death or grievous hurt, punishable under Section 397 of IPC and thereby sentencing the accused -appellant to undergo imprisonment for life. While convicting the accused -appellant for offence under Section 302 of IPC and imposing life imprisonment, the trial Court also ordered payment of fine of Rs. 500 and in event of default of payment of such fine, further simple imprisonment of 2 months was ordered. In the same manner, while convicting the accused -appellant for the offence punishable under Section 397 of IPC and while imposing sentence of 7 years rigorous imprisonment, fine of Rs. 1,000/ - came to be imposed and in event of default of payment of fine, further simple imprisonment of two months was ordered.
(2.)The case of the prosecution in a nutshell be summed up thus :
2.1 Deceased Amarmuni Bapuji was a Mahant (Pujari) of Mojeshwar Hanuman Temple situated at village Roghada of District Porbandar. At the time of incident, deceased was aged about 90. On 3rd of February, 2004, P.W 1 Bharatbhai lodged a First Information Report at Kutiyana Police Station, stating that the deceased who was a pujari of Mojeshwar Hanuman Temple used to frequently visit their village and used to even visit the house of the first informant. On 31st of January, 2004, the deceased had come to the house of the first informant at around 7 O Clock in the evening and also had food at the house of the first informant. After having food the first informant asked his elder brother Ashok Rambhai to go and drop the deceased at the temple. Accordingly, the elder brother of the first informant named Ashok accompanied the deceased and dropped him at the temple. On the next day which was a Sunday, Ashok went to the temple with the tiffin for the deceased and on reaching the temple he found that the room in which the deceased was residing was locked and therefore, Ashok returned home with the tiffin. When Ashok had come to the temple on the previous night of Saturday to drop the deceased, at that point of time the accused -appellant who was serving as one of the employees of Gram Rakshak Dal was present with other employee named Hamir Karna. Another person named Mahesh was also present at the temple and up to earlier morning of the next day the deceased was very much present at the temple. This was conveyed by the accused to the first informant. On the next day i.e. on Sunday as the door of the part of the temple where the deceased was residing was found locked, the first informant thought that the deceased must have gone somewhere and therefore, did not inquire much in this regard. On Monday the first informant tried to inquire by calling upon at the temple on telephone but there was no reply. The first informant thought that since deceased was not keeping well, he must have gone to a doctor. Even thereafter for two days the whereabouts of deceased was not known and therefore, the father of the first informant asked the accused -appellant to inquire about the whereabouts of the deceased. The accused -appellant is said to have come to the temple and took out keys which were placed beneath a pillow and on opening the door, found that the deceased was lying in a dead condition on his bed. The accused -appellant is said to have rushed to the agricultural field of the first informant and informed about the same. On learning this from the accused appellant, the first informant in Company of the accused appellant herein, one Kana Bhima and Dinesh Bikha reached at the temple and saw that the deceased was lying dead in his room and had sustained injuries which appeared to have been inflicted by a hard and blunt object. They found blood on the bed. Thereafter, Police was informed about the incident. In the FIR it was stated that Amarmuni Bapu, the deceased has been done to death by some unknown person by inflicting blows on the head with a hard and blunt object any time between 1st of February, 2004 and 3rd of February, 2004. The first informant did not express any doubt on any particular person at the time when he gave his first information report. The first information report which is at Exh.10 was registered at Kutiyana Police Station at 11 hours on 3rd February, 2004.

2.2 On the strength of the FIR which was lodged by the first informant, Police started investigation and upon completion of the investigation, found that the accused -appellant who was serving as one of the employees of the Gram Rakshak Dal and who was posted at the temple to lookafter the deceased, caused the death of the deceased by inflicting blows on the head and other parts of the body with an axe with the sole intention of committing robbery of the valuables possessed by the deceased.

2.3 The Investigating Officer filed chargesheet against the accused -appellant in the Court of learned Judicial Magistrate First Class, Kutiyana, who in turn committed the case to the Court of Sessions under the provisions of Section 209 of the Criminal Procedure Code, as all the offences with which the accused appellant was charged were exclusively triable by the Sessions Court.

2.4 On case being committed to the Court of Sessions at Porbandar, the trial Judge framed charge against the accused appellant vide Exh.3 dated 11th June, 2004.

2.5 During the course of trial, prosecution examined the following witnesses :

1. PW 1 Bharatbhai Rambhai Jadav vide Exh.9 (original first informant);

2. PW 2 Rambhai Bhurabhai Jadav vide Exh. 12 (father of the first informant);

3. PW 3 Dineshbhai Bikhabhai Mehta vide Exh. 14 (witness);

4. PW 4 Ashokbhai Rambhai Jadav vide Exh. 16 (brother of the first informant);

5. PW 5 Jinabhai Punjabhai vide Exh. 18 (witness);

6. PW 6 Kanabhai Bhimabhai Jalu vide Exh.20 (panch of the scene of offence panchnama);

7. PW 7 Bikhabhai Hirabhai Mehta vide Exh. 22 (panch witness of the discovery panchnama of weapon);

8. PW 8 Aalabhai Rambhai Mehta vide Exh.25 (panch witness of the discovery panchnama of weapon);

9. PW 9 Rameshbhai Lilabhai Odedhara vide Exh.26 (panch witness);

10. PW 10 Desabhai Burabhai vide Exh. 31 (panch witness of the discovery panchnama of robbed valuables);

11. PW 11 Batukdas Ranchhoddas vide Exh. 33 (panch witness of the discovery panchnama of robbed valuables);

12. PW 12 Dr. Prakash Berumal Trilokani vide Exh. 70 (Medical Officer);

13. PW 13 Hamirbhai Karabhai vide Exh. 72 (witness)

14. PW 14 Tapubhai Pithabhai vide Exh. 74 (Police Constable);

15. PW 15 Vikrambhai Jayantbhai Vyas vide Exh. 76 (one of the Investigating Officers);

16. PW 16 Indrasinh Natwarsinh Jadeja vide Exh. 77 (second Investigating Officer).

2.6 The prosecution also relied upon documentary evidence, the details of which are not referred to in this judgment as the same can be looked into from the judgment and order of the trial Court as contained in paragraph 7.

2.7 Upon appreciation of evidence led by the prosecution as well as by the defence, trial Court came to the conclusion that prosecution has been able to prove the case against the accused -appellant beyond reasonable doubt and accordingly held the accused -appellant guilty of the offence of murder punishable under Section 302 of IPC as well as for the offence under Section 397 of IPC. The accused -appellant came to be sentenced to imprisonment for life and hence, this appeal.

(3.)Record reveals that the accused -appellant was not able to engage an Advocate to defend himself and had requested the trial Court to provide him with legal aid and accordingly, one learned Advocate Shri D.H. Modhwadiya was appointed to defend the accused -appellant.