ARVINDBHAI GORDHANBHAI RATHOD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) IN this appeal the convict questions the judgment and order dated 6.2.2006 passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.12, Anand convicting the appellant for the offences punishable under Section 302 of the Indian Penal Code ( for short " IPC" ) and sentencing him for life imprisonment along with a fine of Rs.5,000/-, and in default sentencing him for a further rigorous imprisonment for six months. The impugned order came to be passed in Sessions Case No.59 of 2002.

(2.) AN FIR came to be lodged by one Bipinbhai Ramanbhai P.W.2 on 02.01.2002 stating that the deceased Rajeshbhai and P.W.2 had started from their respective residences at about 8:15 a.m. Rajesh occupied his cabin and one Shyambhai @ Ghansyambhai P.W.10 was also occupying his cabin, and there were other shops occupied by other occupiers including his uncle Babubhai P.W.3. All these occupants were barbers. All the cabins were situated in their immediate vicinity. It is his case that, while he was present in his cabin and doing his work, he heard cries at about 10:00 a.m., as a result of which, the people started running helter-skelter and his uncle P.W.3 came out of the cabin and saw that there was a commotion in the cabin of his brother Rajeshbhai - the deceased, whereupon, he rushed there and his uncle Babubhai also came there and he saw one inhabitant of his village Arvindbhai Gordhanbhai Rathod ­ accused herein, dealing repeated blows on the head of the deceased by means of an axe, as a result of which Rajeshbhai collapsed in the cabin and despite that, the accused continued to hit him, and on seeing the informant and his uncle i.e. P.W.2 and P.W.3, the accused fled and at this point of time the occupants nearby rushed to the scene of offence, and the informant saw the axe stuck in the skull of the deceased, who was having four other additional injuries and was profusely bleeding. The informant helped the deceased out of the cabin, came on the road where a dairy was situated, hired an auto- rickshaw and helped the deceased accompanied by himself and Babubhai P.W.3 and other persons to a Government hospital where the doctor on duty, on examination, declared him brought dead. The informant has further stated in the complaint that the reason for the incident was a suspicion as to illicit relation of the deceased with the wife of the accused and a complaint in that regard was also filed in past on account of quarrel between the two on this issue.

(3.) BEFORE we appreciate the arguments advanced by both the sides, we may refer to the testimony of P.W.2, P.W.3 and P.W.10. In his testimony at Exh.40, P.W.2 Bipinbhai Ramanbhai corroborates statements made in the FIR. He maintains in his deposition that on 02.01.2002 he had opened his shop between 8:00 and 8:15 a.m, and his elder brother Rajeshbhai - the deceased had also left residence at about 7:45 .am., and had occupied his cabin. That both of the brothers were residing together, and just opposite to the cabin of his brother, a firm known as " Chandrakant Khaman House" was situated, and adjoining to the cabin of the deceased was the cabin of Shyambhai, who was doing his business in the name and style " Shyam Hair Art" . It is his say that all these shop owners used to open their cabins at about 8:00 a.m., and at the time of incident, he was present in his cabin, while he was dressing hairs of son of one dhobi (washerman) at about 10:00 a.m., the people started running helter-skelter and therefore he came out of the cabin and saw the gathering of the people outside the cabin of his brother Rajeshbhai whereupon he and his uncle P.W.3 went inside and he saw the accused Arvind dealing axe blow to the deceased on his head, who collapsed immediately, and with last blow, the axe got stuck into the skull of the deceased, and on seeing P.W.2 and P.W.3, accused Arvind fled and thereafter P.W.2 and P.W.3 took the deceased to the hospital in the auto-rickshaw. He saw that the deceased was unable to speak. It is deposed by him that a pool of blood in the cabin as well as at the entrance, as also its stains on the shirt, pant and other clothes of the deceased could be seen. Hemant and his uncle accompanied him to the hospital.