K.S. Jhaveri, J. - (1.) This appeal is filed against the judgment and order dated 29.06.2006 passed by the learned Presiding Officer, Additional Sessions Judge, 6th Fast Track Court, Gondal, Camp at Jetpur in Sessions Case No. 21 of 2005 whereby the appellant -original accused has been convicted for the offence punishable under Sec. 302 of Indian Penal Code and has been sentenced to undergo imprisonment for life and fine of Rs. 25,000/ - and in default, simple imprisonment for one year, and for the offence punishable under Sec. 37(1) -135 of the Bombay Police Act, he has been sentenced to undergo imprisonment RI for a period of four months and fine of Rs. 500/ - and in default, to undergo simple imprisonment for one month.
(2.) The facts giving rise to this appeal are as under: "2.1 Dr. Gajera from Jetpur Government Hospital informed Jetpur City Police Station over phone at 19.30 hours on 26/12/04 that Satyanbhai Goswami has brought Mansukhbhai Naranbhai Nagar, aged 60 years, resident of Bokhla Darwaja, Jetpur, in unconscious and blood smeared state, to the government hospital and he has suffered blows of sharp edged weapon on the abdomen and chest, and therefore, he has been referred to Rajkot Government Hospital for further treatment after giving him primary treatment. In this regard, P.S.O. on duty in the Jetpur City Police Station made Janva Jog Entry vide No. 488/04 dated 26/12/2004 and N.V. Pandor of Jetpur City Police Station was deputed to make further investigation. In this connection, P.S.I. Mr. Pandor went to Rajkot Government Hospital and complainant Mangalbhai Mansukhbhai Nagar, resident of Jetpur, had declared the facts of complaint in his presence on 27/12/04 that I have been residing with my father and wife Pritiben at the aforesaid place. I and my father Mansukhbhai do business in the shop, namely Yogi Seat Covers, at Kanakiya plot in Jetpur and earn livelihood. My mother's name is Jaswantiben, we are four brothers wherein Jayesh is the eldest brother, Kailashbhai is younger than him. Both brothers reside in Surat for business since last one year. Nileshbhai is younger than him, and I am the youngest one. I have two sisters wherein Alpaben is elder sister, who is now at matrimonial home in Ahmedabad, and Meenaben is younger than her, who is now at matrimonial home in Gondal. My father Mansukhbhai and my mother Jaswantiben were quarreling frequently over family matters and household work about fifteen years back from today. Therefore, my mother Jaswantiben and my brothers Jayesh, Kaushal and Nilesh had been residing downstairs in our house separately for the last fifteen years, and I, my wife Pritiben and my father Mansukhbhai had been residing upstairs separately, and our brothers and father were quarrelling frequently in respect of sharing of property (house) during this period. My two brothers Jayeshbhai and Kaushalbhai have gone to Surat for residing since last one year. As my brother Nilesh and my mother Jaswantiben had been telling my father Mansukhbhai frequently for the last one year, but my father had been denying to divide the house. Therefore, my brother Nilesh was frequently quarrelling with my father. When I and my wife Pritiben were present at my house at 7.00 or 7.15 hours in the evening on 26/12/04, I came to know through hearsay that someone has made deadly attack on my father Mansukhbhai Naranbhai with knife in front of Central Bank, and my father has been taken to Jetpur Government Hospital for treatment. Therefore, I immediately went to the government hospital and saw that my father Mansukhbhai had sustained injury on the abdomen and chest and was bleeding. Therefore, my father was under treatment. At that time, many persons gathered wherein someone said that this fatal injury has been caused to Mansukhbhai by his son Nileshbhai with knife. As I was engaged in the treatment of my father, I did not know as to who said the same. Thereafter, the doctor on duty referred my father to Rajkot for further treatment. At that time, my uncle Narotambhai Naranbhai Nagar and my friend Kiritbhai Durlabhbhai were present and they brought my father to Rajkot Government Hospital by ambulance, and at that time, doctor on duty declared my father Mansukhbhai Naranbhai Nagar dead. The cause of this incident is such that my father, my mother and three brothers got separated due to family disputes about fifteen years back from today, and thereafter, my brother Nileshbhai was frequently quarreling regarding partition of our house. Therefore, my father was denying partition of this house. For all these reasons, as Nileshbhai caused fatal injuries on the abdomen and chest of my father with knife near Central Bank on 26/12/04, and my father Mansukhbhai Naranbhai Nagar, aged 60 years, resident of Jetpur, died during the course of treatment, it is my lawful complaint against my brother Nilesh. 2.2 That the original complainant Mangalbhai Mansukhbhai personally declared the fact of the aforesaid complaint in presence of ASI Mr. N.V. Pandor, he noted the fact of the complaint as he dictated. As it was forwarded to Jetpur City Police station with his report for legal procedure, PSO Head Constable Mr. V.M. Patgir who recorded the complaint and registered an offence under Sec. 302 of the IPC and Section -37(1) -135 of the B.P. Act vide I -C.R. No. 196/04 of Jetpur Police Station. Necessary investigation was carried out and the statements of witnesses were recorded. At the end of investigation, chargesheet was filed against the accused before the trial court. However, being a sessions triable office, the case was committed to Sessions Court and trial was initiated."
(3.) During the trial, the prosecution had examined the following witnesses: JUDGEMENT_124_LAWS(GJH)1_2016.jpg JUDGEMENT_124_LAWS(GJH)1_20161.jpg;