- (1.) PRESENT appeal arises out of judgment and order passed in Sessions Case No. 69 of 2004 by learned Additional Sessions Judge, Jamnagar, dated 31.3.2005 convicting and sentencing the Appellant accused for offence under Section 302 for life imprisonment and fine of Rs. 500/ - and in default to undergo further imprisonment for three months.
(2.) IT is the case of the prosecution that the Appellant accused was staying with a lady named Shardaben, PW -3, along with four children of Shardaben at Paddhari in Jamnagar District. It is the case of the prosecution that both the Appellants and the PW -3, Shardaben earn their livelihood by begging and they were staying in hut. It is the case of the prosecution that on 10.3.2004 at about 18 hours, while Shardaben and her elder son, Lalo, PW -2 and other two sons had gone out, the deceased daughter of Shardaben named Roshani aged three and a half years and youngest son of Shardaben aged about one and a half month were in the hut. It is further the case of the prosecution that the Appellant accused inserted cloth in the mouth of the deceased Roshani and pressed it inside because of which she died. It is clear case of the prosecution that when PW -2, Lalo, the eldest son of Shardaben and brother of deceased Roshani, returned back to the hut, he found the youngest brother aged about one and a half month was crying outside the hut and he found the Appellant accused inserting something in the mouth of deceased Roshani. It is the case of the prosecution that on inquiring Lalo was informed that deceased Roshani had swallowed something and, therefore, PW -2, Lalo lifted her and took her to hospital. It is the case of the prosecution that the Appellant accused also accompanied PW -2, Lalo to the hospital. In examination it was found that Roshani had succumbed to injuries and was dead.
(3.) FIRST Information Report came to be lodged by PW -2, Lalo, with Dhrol Police Station. The investigating agency investigated the offence, recorded statements of witnesses and filed charge -sheet against the present Appellant -accused for offence punishable under Section 302 of the Indian Penal Code before the Court of learned JMFC, Dhrol. As the said offence was exclusively triable by Sessions Court, learned Magistrate committed the case to the Sessions Court, Jamnagar, and the same came to be registered as Sessions Case No. 69 of 2004. Charge was framed at Exh.4. The same was read over to the accused to which he pleaded not guilty and claimed to be tried. Learned Sessions Judge after recording of evidence and after examining totality of the facts and evidence on record came to the conclusion that the prosecution has been able to prove the charges leveled against the Appellant -accused and passed the order of conviction under Section 302 and sentenced the Appellant accused for life imprisonment and imposed fine of Rs. 500/ -. Being aggrieved by said judgment, present appeal is filed by the Appellant.;