Brijesh Kumar, J. -
(1.)This appeal has been preferred by the appellant from Jail against the judgment and order dated 5th, 7th and 10th July, 2001 passed by the Gujarat High Court upholding his conviction under Section 302 I.P.C. and sentence of death as awarded by the Additional Sessions Judge Sabarkantha, at Himmatnagar. The reference for confirmation of the death sentence was also accepted.
(2.)We have heard the Amicus curiae representing the appellant at length as well as the learned counsel representing the State.
(3.)The facts of the case are in a narrow campass. The appellant and PW-3 Ashaben, were married about 15 years before the incident. They had two sons, Jigarsinh and Vimalsinh aged about 12 and 7 years respectively. They were residing in Village Bhadresar along with the parents of the appellant. The brother of the appellant, namely Dashrathsinh was living separately. The prosecution case is that on 24-8-1998 while the appellant, the complainant PW-3 Ashaben and their two sons were sleeping on cots inside the house, the appellant woke her up early in the morning. She milched the cow and requested her husband to deliver the milk at the dairy. The appellant declined to do so upon which she tried to awake Jigarsinh for delivering the milk but the appellant asked her to go herself for the purpose. She accordingly went to the dairy and reached back home at about 7 a.m. She found her husband assaulting the sleeping boys, namely their sons. She raised alarm and rushed into the room thereupon her husband left the house from the other door. Ratansinh her father-in-law and Dasrathsinh her brother-in-law and others arrived. She told them about the incident. The two sons died as a result of injury received by them. PW-4 Mangusinh Tetsinh, father of the complainant, PW-3 Ashaben on getting information of the incident through Sarpanch of his village went to Village Bhadresar, his daughter narrated the whole story to him. He brought her to his village Mhudi from Bhadresar. According to him on the way they also went to the Police Station, Jadar. According to PW-3 her report was written and lodged at the Police Station. The PSI, Police Station, Jadar, Bhurjibhai, who has been examined as PW-8 stated about the lodging of the FIR and registration of the case at the Police station at 5 p.m. on 24-8-1998. Thereafter PW-9 conducted the investigation into the case interrogating the complainant and other witnesses at the spot and taking into custody the other material exhibits and prepared their respective recovery memos including that of the weapon Dharia. He also took into custody the plain and blood stained earth etc. Inquest reports were also prepared. He arrested the accused on 17-9-1998 at 11.15 A.M. The post-mortem examination on the dead bodies of the two deceased was held by PW-1 Dr. Ganpatsinh Ambadan Charan, on 24-8-1998. He found three external injuries on the deed body of Jigarsinh, which consisted of one sharp cut wound on the left cervical region upto the middle line of neck and two other incised wounds. On internal examination he found fracture of the jaws. So far Vimalsinh is concerned he was found to have one sharp cut wound on the neck from left mandible to right ear lobule. There was fracture of occipital bone as well as that of 1st and 2nd cervical spine. The Doctor opined that the injuries were antemortem and they were caused by sharp edged weapon. On looking to the exhibit article No. 9, Dharia he stated that the said injuries could be caused by the said weapon. He also stated that injuries were sufficient in the ordinary course of nature to cause death. He denied the suggestion made in the cross-examination that the nature of the injuries indicated could be caused only by axe. He also denied the suggestion that the injury Nos. 2 and 3 could not be caused by Dharia. PW-2, Nathosinh is a witness of recovery and the articles and memos prepared thereon. PW-3 is the complainant namely, the mother of the two deceased children and wife of the appellant. She has stated that the appellant right from the beginning had suspicion about her character and in that connection he quite often quarrelled with her. She however, denied a suggestion made on behalf of the defence in her cross-examination that the appellant used to tell her that the two sons Jigar and Vimal were not born of him. PW-4 Mangusinh Tetsinh, is father of the complainant, PW-5 Dineshbhai Paragbhai, who was examined as witness to the recoveries of his clothes etc. made on the arrest of the accused on 17-9-1998, PW-6, is yet an another witness in connection with the same. PW-7 Dalpatsinh is a neighbour, who claims to have reached the house of the appellant on the shouts of PW-3, but had found no one else there. PW-8 Bhurjjibhai Kavjibhai Damor was PSI and was posted at P.S. Jadar and had registered the case at the Police Station. PW-9 Babubhai Kodarbhai Patel is the Investigating Officer.