Judgment

MISRA, J. :- The present appeal is directed against the judgment and order of the High Court of Gujarat, dated 15th of July, 1975, allowing the appeal filed by the State of Gujarat and setting aside the order of acquittal passed by the Sessions Judge, and convicting the appellant under Section 302 I. P. C. and sentencing him to suffer rigorous imprisonment for life.

2. The appellant and the deceased Manorbhai Veribhai had a common ancestor and they were cousins at fourth degree. They lived in the same neighbourhood. The western wall of the house of the deceased touched the eastern wall of the house of the appellant. Beyond the house of the appellant lies the wada land belonging to the deceased which is used for storing firewood and cow-dung cakes. There was some bad blood between the appellant and the deceased inasmuch as the brother of the appellant was murdered and Magan, the son of the deceased, was prosecuted in that connection. But eventually he was acquitted. The deceased had also received a fracture injury on his arm in that incident and in that connection the appellant along with others was also prosecuted. The said case, however, was compromised between the parties. Sometime thereafter the appellant had inflicted dharia blows on Magan, son of the deceased and that gave rise to another prosecution against the appellant, but that was also compromised at a later stage. The fact, however, remains that eversince the murder of the brother of the appellant, the relations between the two families had been strained.

3. The prosecution case as unfolded in the first information report and the evidence on the record is that on 25th of Feb., 1973, filthy water was thrown in the wada land of the deceased. The deceased suspected that this had been done by the appellant. He therefore, rebuked him. The appellant on the other hand denied the throwing of filthy water in the wada land of the deceased and threatened to teach him a lesson for his wrong accusation. The deceased returned to his house from his wada land and sat near Navania (bathing place) in front of the oari of his house and was smoking hubble bubble, when the appellant returned with a spear. He gave a kick to the deceased on his back. As a result of the kick the deceased fell down and the appellant gave two or three spear blows on the chest of the deceased.

4. According to the prosecution this incident was seen by three persons (1) Bai Dhuliben, P. W. 4, widow of the deceased, (2) Savita, P. W. 3, grand-daughter of the deceased, and (3) Babubhai Mangalbhai, P. W. 8, a neighbour of the deceased. Some other persons residing in the neighbourhood also came to the scene of the occurrence on hearing the cries of Dhuliben. The appellant, thereafter, decamped with his spear. The deceased died instantaneously on the spot. Bai Dhuliben asked one Chimanbhai Ranchhodbhai, P. W. 9, to send a telegram to her sons who were posted at Ahmedabad informing them that their father has been murdered by the appellant. She also proceeded to the house of Police Patel but he was not available at his home. She, however contacted Ranchhodbhai Bhavsing, P. W. 11 and Somabhai Bhaijibhai, both of whom were employed as village police at village Dedarda at the material time. Somabhai thereafter went to the house of the deceased and sat near the deadbody. Ranchhodhbai accompanied Bai Dhuliben to the Police Station at Borsad who lodged the first information report at about 9.30 p. in. giving details of the occurrence, N. J. Jadhav, P. W. 15, Police Sub-Inspector, proceeded to village Dedarda, after recording the first information report and reached there at about 11 p.m. He immediately made a search of the house of the appellant but he was not to be found there. After the necessary formalities of Panchnama and the preparation of the inquest report, he sent the dead body to the Municipal Hospital at Borsad. Dr. M. D. Desai, P. W. 2, performed the post mortem examination of the dead body. After investiga