STATE OF GUJARAT Vs. HATHISINH A PARMAR

JUDGEMENT

(1.) THE instant appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, against the judgment and order delivered by learned Additional Sessions Judge, Panchmahal at Godhra on 11th December, 1985 in Sessions Case No. 78 of 1985, whereby the present opponent-Hathisinh Andarsinh Parmar, being accused of the said Sessions Case, came to be acquitted by learned Additional Sessions Judge, Panchmahal at Godhra for the charge levelled against the accused under Section 302 of the Indian Penal Code. Division Bench of this Court was pleased to admit this appeal on 28th August, 1986 and bailable warrant was issued against the respondent-accused. Now, respondent-accused is represented in this appeal by learned Advocate Mr. Virendra Baheti, who is Advocate appointed to represent the accused.

(2.) AS per the brief case of prosecution, the incident occurred at Village Gollav, situated in Panchmahal District, on 13th April, 1985 at about 22:00 hours. Deceased in this case is Fatehsinh Andarsinh Parmar. FIR report has been lodged by Ganpatsinh Andarsinh Parmar, who is brother of the deceased and the brother of the accused as well. Deceased and accused were stepbrothers. Complainant were four brothers and staying separately. Though out of four, three were staying in adjoining houses; while fourth was staying at little distance. Complainant-Ganpatsinh is brother of Fatehsinh-deceased in this case and third brother " Raghunathsinh are brothers from same mother; while accused-Hathisinh happens to be stepbrother by separate mother of the complainant and his real other three brothers. According to prosecution case, all the four brothers had separate agricultural land and as such their names were entered separately in separate lands. On the day of incident i. e. on 13th April, 1985 at about 22:00 hours while complainant-Ganpatsinh after taking his meal at night, was sleeping in his courtyard, accused and his wife " Amrutben started quarreling with other brothers, who were staying nearby about the land which they were cultivating. Complainant-Ganpatsinh advised them to take rest and sleep and let others also take rest. Even thereafter also, accused-Hathisinh and his wife-Amruta, continued quarreling with other brothers. At that time, deceased-Fatehsinh-brother of the complainant was sitting with Prabhatsinh Sardarsinh at the residence of Prabhatsinh. He came out of the house of Prabhatsinh and requested the accused " Hathisinh that disputes could be settled on next day and at late of night there was no meaning of quarrel and to disturb the peace and sleep of all other neighbours. At that time, accused came out from his house and inflicted two blows of knife on the body of the deceased. Deceased started shouting and accused ran away with knife. Neighbours including Ganpatsinh Andarsinh, brother of the deceased-Kalusinh, Natvarsinh Fatehsinh, both sons of the deceased and other person witnessed this incident and it was found that knife blows were given by the accused on the chest of deceased. They were preparing to call doctor as deceased was lying in seriously injured condition, but within short time, Fatehsinh died and therefore all his relatives waited for the night and on the second day i. e. on 14th April, 1985 in the morning at 9:30 a. m. , Ganpatsinh Andarsinh gave complaint before Devgadh Baria Police Station, which was registered as C. R. No. I-36 of 1985. Though on the same day, within half and hour of the incident, the Police Patel of the village was contacted, but due to non-availability of any means of transport, complaint could not be filed by the complainant on the same day and was filed on the next day. The cause of dispute as per the prosecution case was the enmity in respect of the land because accused had grievance that though they were cultivating land which came to their share, but was not entered in their name in revenue record. Investigation was handed over to the then PSI, Devgadh Baria Police Station, Chandrakant Lallubhai Vora, Prosecution Witness No. 8. After recording the statement of concerned witnesses, he arranged to forward the dead body for postmortem. Prosecution Witness No. 4-Dattatray Radhakisan conducted postmortem of dead body. Investigating Officer thereafter prepared Panchnama of scene of offence and while he was leaving for Devgadh Baria for investigation at Village Gollav, accused appeared in Police Station. He had injury and was arrested noting injuries on his body. Thereafter, the accused volunteered to show weapon used in the crime and Investigating Officer draw discovery Panchnama by which from one ravine of culvert of the road, the accused took out knife which was seized as muddamal. Blood sample of the deceased and the clothes of the deceased as well as clothes of the accused upon which there were blood stains were seized as muddamal and were forwarded to Forensic Science Laboratory for analysis. Accused was also referred hospital for his injuries. Ultimately, after investigation was over, a charge-sheet came to be filed against the accused before the learned Judicial Magistrate First Class at Devgadh Baria. The offence was triable by the Court of Sessions and learned Magistrate committed the case to the Court of Sessions at Panchmahal at Godhra which was registered as Sessions Case No. 78 of 1985 and the case was made over to learned Additional Sessions Judge for trial.

(3.) VIDE Exh. 4 learned Additional Sessions Judge framed charges against the accused on 21st October, 1985 stating that on 13th April, 1985 at about 10:00 p. m. , at Village Gollav at Devgadh Baria Taluka, in the courtyard of the deceased which was situated just opposite the house of the accused, accused with the knowledge and intention inflicted blows with knife on the chest of the deceased and since those injuries were sufficient in ordinary course of nature to cause death and thereby deceased " Fateshsinh Andarsinh Parmar died. The accused was liable for the offence punishable under Section 302 of the Indian Penal Code. Accused pleaded not guilty and hence prosecution examined as many as eight witnesses as under: <FRM>JUDGEMENT_2190_TLGJ0_2008Html1.htm</FRM>