The prosecution bears the burden to prove guilt beyond reasonable doubt; reliance solely on Section 106 of the Evidence Act is insufficient without foundational facts.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. The appellant accused Bhavsing Rathwa, has questioned the legality and correctness of the judgment of his conviction and order of sentence by preferring this appeal.

2. The appellant accused Bhavsing Rathwa, was prosecuted for the offence of murder of his wife under Section 302 IPC and offence of causing disappearance of evidence under Section 201 of Indian Penal Code. Vide judgment dated 03.08.2017, the Additional Sessions Court, at Chhota Udepur, passed in Sessions Case No. 6 of 2016, the appellant Bhavsing Rathwa has been convicted and sentenced for the offences as referred hereinabove and directed the accused to undergo life imprisonment for the offence of murder punishable under Section 302 and also sentenced to undergo 3 years for the offence under Section 201 of the Indian Penal Code.

3. Facts and circumstances leading to file this conviction appeal are as follows:

3.1 The appellant accused Bhavsing Rathwa and his wife deceased Akuben Bhavsinh being farmer, lived together at village: Bhilpur, Dist.: Chhota Udepur. The relation of the husband and wife were no cordial. The deceased wife made a complaint to the accused and raised the issue about selling of buffaloes, as a result, on 28.05.2015, at about 1-00 pm, the dispute arose between the husband and wife. The appellant herein in a sudden quarrel in the heat of passion, hit the head of the deceased wife by axe, as a result, due to sustaining of serious injuries, deceased succumbed to her injuries. According to case of the prosecution, the neighbouring persons and relatives after hearing the hue and cry, rushed to the place of incident, where they saw the deceased lying in a pool of blood. The appellant accused after the incident, run away and put his mobile phone on switched off mode. The nephew of the accused Ashok was nearby the place of incident also came at the place and after knowing the facts of the incident, he informed PW- 5 Ramsing Rathwa, who happened to be the brother of the accused. The FIR came to be lodged by PW-5 before the Chhota Udepur Police Station, which came to be registered as CR No. 69 of 2015 for the offences punishable under Section 302 Indian Penal Code. The investigation of the case was handed over to PW-19 Rajesh Baria. The investigation officer took visit the place of incident and collected necessary samples for forensic science analysis and also sent the dead body for postmortem. The IO during the investigation, recorded the statement of the witnesses, arrested the accused – appellant, recovered the weapon axe at the instance of accused herein, collected the necessary blood samples, seized the clothes of the deceased as well as accused and after due investigation, the chargesheet was filed against the appellant. The charge had been framed by the Additional Sessions Judge, Chhota Udepur against the accused.

4. The prosecution in order to prove the charge, adduced the following oral evidence :