JUDGMENT

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. The present appeal is at the instance of a convict accused for the offence punishable under Section 302 of the Indian Penal Code and is directed against an order of conviction and sentence dated 15th July 2008 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Chhota Udepur, in Sessions Case No.23 of 2008.

2. By the aforesaid order, the learned Additional Sessions found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment with a fine of Rs.10,000/- and in default of payment of fine further rigorous imprisonment for the period of one year.

3. In absence of any evidence to establish the charge of Section 504 of the Indian Penal Code, the accused-appellant was acquitted of the offence punishable under Section 504 of the Indian Penal Code as well as of the one punishable under Section 135 of the Bombay Police Act as the prosecution failed to prove that on the date of the commission of offence there was a notification issued by the District Magistrate prohibiting possession of a knife used in the commission of the offence.

4. CASE OF THE PROSECUTION:-

4.1 On 16th December 2007 at around 3 ‘O’ Clock in the afternoon the deceased and the accused together had gone to the agricultural field for carrying out agricultural operations. In the evening at around 7 O' Clock while both were returning home together there was an altercation between the two. The wife of the deceased namely Lilaben apprehending that the accused might assault her husband intervened and brought the deceased along with her at home. After completing dinner when the deceased and his wife Lilaben were preparing to go to sleep, the accused came shouting at their house and broke opened the door of the house by giving a kick blow. The accused thereafter demanded money from the deceased to consume liquor. The deceased refused to give money to the accused as a result of which the accused pounced on the deceased while the deceased was in a sleeping posture and saying why he refused to give him money, inflicted injuries on the neck of the deceased with a knife leaving the deceased in a pool of blood. The wife of the deceased raised shouts for help and on hearing her shouts the brother of the deceased named Gamarsing residing in the adjoining house came running and saw that the accused was hurling abuses. The accused thereafter went away from the house of the deceased. Immediately after the incident the wife of the deceased went to the Quant Police Station and lodged a First Information Report, Exh.26.

4.2 On the strength of the FIR lodged by the wife of the deceased, the investigation commenced. The inquest panchnama-Exh.15 was drawn in presence of the two panch witnesses. The dead body of the deceased was sent for postmortem examination and the postmortem revealed that the deceased had sustained an oblique incised wound of 4 cm. x 1 cm. x 2.5 cm. on the left side of the throat, near the thyroid cartilage and jugular vessels were found to be cut. The thyroid cartilage and trachea were also found to be cut. The cause of death assigned in the postmortem, Exh.9, was hemorrhagic shock due to injury on the throat. The scene of offence panchnama Exh.18 was drawn in presence of the two panch witnesses. The clothes of the deceased stained with blood were collected and were sent for chemical analysis to the Forensic Science Laboratory.

4.3 On 17th December 2007 the accused was arrested and his arrest panchnama, Exh.20, was drawn in the presence of the two panch witnesses. The clothes worn by the accused at the time of his arrest were collected and were sent to the Forensic Science Laboratory for chemical analysis. The accused, while in police custody after arrest, expressed his willingness to point out the place