GULAL ZIMMARIA RATHVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD learned advocate Mr.J.M.Buddhbhatti who is appearing as amicus curiae for the appellant -accused and learned APP Mr.U.R.Bhatt for the opponent -State.

(2.) BY way of filing this appeal under Section 374 of the Cr.PC, the appellant has challenged the judgment and order of conviction and sentence dated 25.6.2004 passed by the learned Addl.Sessions Judge and 4th Fast Track Judge, Fast Track Court, Chhota -udepur, against the appellant for the offence punishable under Section 304(2) of IPC in Criminal Case No.77 of 2003 convicting and sentencing him to undergo rigorous imprisonment of seven years and to pay fine of Rs.1,000/ -, in default, to further undergo rigorous imprisonment of two months. The appellant was however, acquitted for the offences punishable under Sections 302, 323 and 504 of IPC and Section 135 of the Bombay Police Act. He was also given the benefit of set -off under Section 428 of Cr.PC.

(3.) THE case of the prosecution is that, the complainant Lakhiben, now widow of deceased Keslabhai Rathwa was residing at village Chichaba, Taluka Kawant, Dist. Vadodara with her family. According to the prosecution, the incident took place on 23.6.2003 at about 6.30 p.m. when the complainant was at her house. Her husband Keslabhai was standing in the open space nearby the house of the appellant, Gulalbhai Zamariyabhai Rathwa. It is alleged that at that time, Gulalbhai, appellant herein, asked the deceased Keslabhai, husband of the complainant as to why the entire crop of Ladies Finger from his land was collected instead of the crop from the portion of the deceased and the appellant accused to abuse him and the wife of the complainant restrained him from abusing and on saying so by the wife of complainant, the appellant accused got infuriated and went to his house and came with a "Paliya" (Dinga) and inflicted a blow with the blunt portion of the "Paliya" on the head of the deceased. She immediately snatched away the weapon from the appellant -accused and thereafter, along with her husband, she went to Kawant Police Station where she lodged the complaint. On the basis of the said complaint, the offence was registered as Kawant Police Station C.R.No.II -43 of 2003 for the offences punishable under Sections 323 and 504 of IPC and under Section 135 of the Bombay Police Act. On 24.6.2003, the injured died at SSG Hospital during treatment and therefore, Section 302 of IPC was added and the report under Section 157 of Cr.PC was submitted before the Court. During the investigation, statements of witnesses were recorded, Inquest panchnama, panchnama of scene of offence and panchnama of recovery of clothes as well as weapons were drawn; sample of blood from the soil was collected and the muddamal items were sent to the Forensic Science Laboratory (FSL) for analysis. It is the prosecution case that the complaint Exh.36 was also recorded and the offence was registered. The accused was also sent to hospital for treatment. At the end of investigation, the charge sheet was filed as referred to above. Since the court of learned JMFC has no jurisdiction to try the case, it was committed to the Court of Sessions which was numbered as Sessions Case No. 77 of 2003.