IMPORTANT POINT
Res Gestae witness.

JUDGMENT

Deepak Verma, J. —

1. On account of homicidal death of Jethusing on the intervening night of 2/3.04.1994 at about 2 a.m. Appellant was charged and prosecuted for commission of the offence under Section 302 of the Indian Penal Code (for short ‘IPC’) and under Section 135 (1) of the Bombay Police Act. On appreciation of evidence available on record, Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 137 of 1994, decided on 07.03.1998, found the Appellant guilty for commission of the said offence and awarded him life imprisonment and a fine of Rs. 500/-, and in default to undergo further R.I, for 3 months under Section 302 of the IPC and 4 months simple imprisonment and fine of Rs. 100/- and in default to undergo further imprisonment of 15 days under Section 135 (1) of Bombay Police Act. The sentences were directed to run concurrently.

2. Feeling aggrieved thereof, Appellant filed Criminal Appeal No. 597 of 1998 before the Division Bench of the High Court of Gujarat at Ahmedabad. The High Court, after categorically examining the oral and documentary evidence available on record came to the conclusion that no case for interference was made out, affirmed the judgment and order of Trial Court and thus dismissed the appeal.

3. The Appellant therefore feeling aggrieved by the aforesaid impugned judgment and order of conviction recorded by the Division Bench of the High Court, is before us challenging the same on variety of grounds.

4. Before we proceed to decide the grounds raised at the time of hearing, it is necessary to narrate the facts of the case in nutshell, which stand as under:

5. On 2.4.1994 at about 6 o’ Clock, deceased Jethusing and his agriculture partner Fueo Rabari had gone to cultivate the field of Karshanbhai Patel in their village and returned at about 12 O’ clock midnight, after cultivating the same. Then Jethusing went to sleep in Oshri outside Orda, whereas his wife Pepaben and their son Pintu were also sleeping at the same place but on another cot. Father of the complainant i.e. Paragji and Feuo were sleeping in Verandah whereas, brother of the complainant named Vaghji was sleeping outside verandah and youngest brother of the complainant Deepji was watering castor plants. On the intervening night of 2/3.4.1994, at about 2.00 a.m., Pepaben raised shouts for help. On hearing the same, complainant - Viramji Paragji, his wife and other members of the family were woken up. Complainant and other family members, went to the place where Jethusing, his wife Pepaben and their son were sleeping. On reaching the spot, they found that Pepaben was raising alarm to save her husband Jethusing. Complainant found that Jethusing had received severe injuries on his face and was bleeding profusely. Looking to the gravity and seriousness of the matter, Viramji Paragji and his other brother Surajsing and Fueo placed injured Jethusing in the tractor to take him to Dhanera Hospital.

6. On way to hospital, they met Appellant and one Kanabhai Mulabhai, who also accompanied them to the hospital. The Doctor on duty examined him and declared the deceased brought dead. Thereafter, the complainant went to Dhanera Police Station and lodged his complaint. It is pertinent to mention here that at that time PW -3 Pepaben had not disclosed the name of the Appellant as assailant to anyone including the complainant who had lodged the FIR. To this she has offered an explanation that at that time her uppermost anxiety was to take her injured husband to the hospital for treatment, therefore, the name of the Appellant could not be mentioned in the FIR. Only after Jethusing was taken to the hospital, Pepaben informed PW-5 - Deepji Paragji and PW-6 - Vaghji Paragji, brothers of the deceased that injury was caused on the person of the deceased by Appellant, with the aid of an axe. On hearing this, they informed Pepaben that while entering the field, they had also seen Appellant going away from the field, with an axe in his han