BHASKAR BHATTACHARYA - (1.) THIS appeal is at the instance of a convict and is directed against an order of conviction and the consequent sentence dated 16th November 2006 passed by the Additional Sessions Judge, Fast Tract Court No.1, Chottaudepur, Dist. Vadodara, in Sessions Case No. 45 of 2006. By the said order, the learned court below found the appellant guilty for murder under section 302 of the Indian Penal Code and consequently, imposed sentence of rigorous imprisonment for life and a fine of Rs.100/-; in default of payment of fine, the appellant was directed to further undergo rigorous imprisonment for one month. The appellant, however, was declared not guilty for the crime punishable under section 135 of the Bombay Police Act.
(2.) THE case made out by the prosecution may be summed up thus: 2.1 On 26th March 2005, one Idalbhai Maniyabhai lodged a complaint before the PSI, Rangpur Police Station, Camp at Chottaudepur Hospital, to the effect that he was living at Simalkuva, Patel Faliyu, Taluka Chottaudepur, Dist. Vadodara, with his wife and family and he was doing labour work. They were four brothers, Bhurlo being the eldest, then Gallabhai, next Sursing, and the youngest one being the complainant. Gallabhai was living with the complainant and Bhurlo and Sursing were living separately. 2.2 Before about one year, his brother Sursing eloped with one Surti, the sister of one Jandubhai Khumanbhai Dhanuk of his village. Before about a week, his brother Sursing came to the home of his sister Shantiben residing at Timla village. As Jandubhai Khuman, came to know about it, he went to village Timla and brought his sister Surti to his home at Simalkuva. However, Surti ran away from the house of her brother Jandubhai and went back to his brother Sursing, who went to Jambudiya, Talu. Morbi, District- Rajkot for doing labour work. 2.3 On 25th March 2005, the complainant and his wife Sharda were sitting outside their house and at that time, his uncle Kuchariyabhai Bhukhanbhai Dhanuk was coming to his home after collecting toddy from the palm tree which is situated in front of his house. At that time, Jandubhai Khumanbhai Dhanuk came with his bow and arrow and shot the arrow towards Kuchariyabhai Bhukhanbhai Dhanuk which hit on his temple on the left side of the head and he fell down. At that time one Khuman Thuthiyabhai, the accused no. 2 came with a Dingo [stick] in his hands and started abusing and was yelling to kill Kuchariyabhai. On seeing that Kuchariyabhai had been injured by an arrow, the complainant and his wife shouted for help as a result thereof, Gulab Lalu Dhanuk [ brother's son ], Nana Moti Rathwa [uncle], Mukam Ramsing [grand father] and other persons from the street viz. Kaliya Chiman Rathwa, Indrasing Nanaji Rathwa came. Thereupon, Jandubhai Khumanbhai Dhanuk and Khuman Thuthiyabhai ran away. Thereafter, Kuchariyabhai Bhukhanbhai Ghanuk was laid on a cot and the complainant and some other persons of the village, viz. Malsinh Jigda, Kaliya Chiman and Mukam Ramsing etc. lifted the cot and brought it to the road wherefrom the injured Kuchariyabhai Bhukhanbhai Dhanuk was taken to the hospital at Chottaudepur in the jeep of one Chhagganbhai of Khadakvada for treatment where he died during treatment. Upon completion of the investigation, the investigating officer submitted charge sheet before the learned Judicial Magistrate First Class, Chottaudepur and on 2nd July 2005, the learned Judicial Magistrate having found that the case is exclusively triable by the Court of Sessions, committed the case to the Court of Sessions as provided under section 209 of the Code of Criminal Procedure. The learned Sessions Judge framed the charge on 28th December 2006 at Exh.5. The statements of the accused was also recorded on 28th December 2006 and the accused pleaded "not guilty" and claimed for a trial.
(3.) FURTHER statement of the accused was recorded on 2nd May 2007 whereby the accused substantially denied the material evidence produced against him. The prosecution had examined the following witnesses in support of the prosecution case: PW. No. Name of witness Exh No. 1 Kanubhai Malabhai Rathwa The Circle Inspector of Taluka Panchayat Office who prepared the map of the scene of offence. Exh No. 8 2 Dr. Babulal Kalidas Patidar Medical Officer of Referal Hospital, Chotaudepur who initially treated the injured victim and later on conducted post mortem Exh No. 12 3 Idlabhai Maniyabhai Dhanuk Eyewitness to the incident and the person who lodged complaint before the Rangpur Police Station, Camp at Chhotaudepur Hospital. Exh No. 16 4 Shardaben, wife of Idlabhai An eyewitness to the incident Exh No. 18 5 Sukhliya Kidiya Dhanuk Panch witness to inquest panchnama Exh No. 19 6 Indrasinh Nanla Panch witness to inquest panchnama, a witness who turned hostile in respect of statement given by him on 27th March 2005 before the PSI, Rangpur. Exh No. 21 7 Karamsinh Chhotubhai Panch witness to the clothes worn by the deceased. Exh No. 22 8 Bandariya Bhusariya Witness to the panchnama of the place of offence, who turned hostile. Exh No. 24 9 Udhaliya Ramsing Rathwa Witness to the panchnama of the recovery of the weapon [bow], who turned hostile. Exh No. 26 10 Devlabhai Alsinhbhai Dhanuk Witness to the panchnama of the recovery of the bow, arrow, and stick, who turned hostile. Exh No. 28 11 Indrasinh Sataliya Rathwa Witness to the panchnama of the collection of blood stained soil from the scene of offence, who turned hostile. Exh No. 29 12 Mahendrasinh Bahadursinh Solanki, the Investigating Officer Exh No. 30 ;