Decided on January 11,2016

Umeshbhai Premabhai Ahir Appellant


HARSHA DEVANI - (1.) By this appeal under section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the appellant convict has challenged the judgment and order of conviction dated 19.4.2011 passed by the learned Third Additional District Judge and Additional Sessions Judge, Surat in Special Atrocity Case No.30 of 2009, whereby the appellant has been convicted of the offence punishable under section 302 of the Indian Penal Code and has been sentenced to life imprisonment as well as a fine of Rs.25,000/ - and in default of payment of such fine, to undergo simple imprisonment for a period of six months.
(2.) The prosecution case is that one Chhanabhai Bhulabhai Rathod lodged a first information report before the Kamrej Police Station on 18.10.2009 alleging that he was residing at Valthan Halpativas, Taluka Kamrej with his family and was doing casual labour work. His wife's name was Revaben and he had in all four children. The eldest was a daughter by the name of Savitaben who was married and was living at her matrimonial home. The second was also a daughter by the name of Madhuben, who was married to one Prahladji Prabhuji Thakore and along with her family was residing next to them. The third was a son Santosh, who was married to one Ramila and was residing at Valthan Naher Colony with his family, and the fourth was a son Ashokbhai, who was married to Hinaben and was residing with the first informant and his family. One Umeshbhai Premabhai Ahir was residing opposite his house in Halpati Mohalla since several years. People of different castes like Bhaliya, Ahir and Halpati Rathod were residing at Halpati Mohalla, due to which, people belonging to all the castes knew each other well. His family belonged to the Halpati caste and they were well acquainted with Umeshbhai Premabhai Ahir, who was residing opposite their house. That in the morning of 18.10.2009, he was present at home, at which point of time, at around 8 o'clock, his younger son Ashokbhai left for Kadodra for the purpose of purchasing clothes on account of the festival of Diwali and he (the first informant) was present at home. At about 11 o'clock in the morning, after having lunch, he had gone to sit at the corner of the Mohalla at Bhathiji Dada's temple and Sureshbhai Naginbhai Chaudhari, a resident of Naher colony of their village was also sitting with him and they were discussing and talking with each other. In the meanwhile, at around 1:30 in the afternoon, he had seen his son Ashokbhai passing near the temple and going towards their house after purchasing clothes. After a little while, people of the mohalla had gathered opposite their house in the mohalla and were shouting and hence, he and Sureshbhai Chaudhari at around 2 o'clock went to his house where people had gathered and found that his son Ashokbhai was lying on the ground and was bleeding from the head and at that point of time, out of the persons gathered there, he was informed by his daughter Madhu's son Jivan Prahladbhai Thakore and his daugther Madhuben and son -in -law Prahladbhai that Umesh Premabhai Ahir's mother Chimkiben had come in the morning to borrow money and upon refusing to do so, Umeshbhai Premabhai Ahir had picked up a quarrel with his daughter Madhuben and was arguing with her, whereupon Ashokbhai had come and intervened and Umeshbhai Premabhai Ahir suddenly got incited and picked up an iron pipe lying nearby and struck the same on Ashokbhai's head, causing him to bleed and fled from the scene. Thereafter, the 108 ambulance mobile had come to the mohalla and the ambulance doctor had examined his son Ashokbhai and declared him to be dead. Hence, they had brought the dead body in a private vehicle to the Kamrej Government Hospital. It was, accordingly, alleged that Umesh Premabhai Ahir who was residing opposite their house in the Mohalla, had despite the fact that he knew that they belong to the Halpati Rathod caste, upon not lending money to his mother, nursed a grudge and quarrelled with his daughter Madhuben and upon his son Ashok intervening had suddenly got incited and picked up a pipe lying nearby and inflicted a blow on his son Ashok and caused grievous injury resulting in his death.
(3.) The first information report came to be registered as Kamrej Police Station I -CR No.153 of 2009 for the offences punishable under section 302 of the Indian Penal Code and section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act , 1989.;

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