Circumstantial evidence and prior acts of domestic violence established guilt for murder, while lack of evidence led to the acquittal of charge for concealing the body.

JUDGEMENT

(PER : HONOURABLE MR.JUSTICE K.J.THAKER)

1. The appellant-ori. Accused has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure , against the judgment and order of conviction and sentence dated 30.3.2007 passed by the learned Addl. Sessions Judge, 2nd Fast Track Court, Deesa, Banaskantha in Sessions Case No.

19/2003, whereby, the learned trial Judge has convicted the appellant for the offence under sec. 302 of IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default, to further undergo S/I for two months.

The appellant is also convicted for the offence under section 201 of IPC and sentenced to undergo S/I for ten years and to pay a fine of Rs. 500/-, in default, to undergo further S/I for one month, which is impugned in this appeal.

2.1 The case of the prosecution is that on 23.11.2002, the complainant was at his field known as “Lavarawala” with his father and younger brother. At that time, Jesungbhai Bhemabhai Patel of village Vinchhivadi, who is also cousin brother of accused, had came there on tractor and told the complainant and his father that his sister Parvatiben had died due to burns injuries in the field. Therefore, the complainant, his father and other family members went to Vinchhivadi village where they saw dead-body of Parvatiben lying in the field, and therefore, the aforesaid complaint was lodged against the accused-present appellant.

2.2 The appellants accused came to be arraigned for committing murder.

On the basis of the FIR given by the complainant – brother of the deceased immediately after the incident. The prosecution was put into motion and the charge- sheet was laid under section 302 along with sec.

201 of IPC. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, and thereafter the same was made over to the learned Addl. Sessions Judge, having his camp at Deesa, which was given number as Sessions Case No. 19/2003. The learned Addl. Sessions Judge, at Deesa, on 31.3.2004 was requested to reframe the charge as per the order dated 3.3.2004 passed by this Court in Criminal Revision Application No. 438 of 2003, and that is how, the charge dated 2.4.2004 came to be framed by the learned Addl. Sessions Judge, Deesa. The learned Addl. Sessions Judge, Deesa after passing the order below Ex. 33 framed the charge, but the same was challenged, as discussed earlier, and therefore, the learned Addl. Sessions Judge, Deesa, reframed the charge below Exh. 58 and added the provisions of Sec. 498A and sec. 306 of IPC.

2.3 Thereafter, the Sessions Court framed the charge as aforesaid against the appellant for commission of the offence under section 302, 201, 498A and under sec. 306 of IPC. The appellant- accused has pleaded not guilty and claimed to be tried.

2.4 To prove the case against the present appellant, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellant:

1. PW-1 Ishwarbhai Hamirabhai Patel Ex. 73

2. PW-2 Shamalabhai Vahtabhai Patel Ex. 77

3. PW-3 Sonaben w/o Hamirbhai Patel

4. PW-4 Hamirabhai Trikmabhai Patel Ex. 79

5. PW-5 Mahadanji Chamnaji Gadhavi Ex. 81

6. PW-6 Dr. Shitalben Sudhirbhai Shah Ex. 84

7. PW-7 Chandandan Sujaji Gadhavi Ex. 92

8. PW-8 Kasamkhan Fatuji Chauhan Ex. 95

9. PW-9 Vishnubhai Ishwarbhai Patel Ex. 100

2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused.

1. Complaint Ex. 74

2. Map of scene of of