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CR.A/226/1996 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 226 of 1996
With
CRIMINAL
APPEAL No. 425 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
JAYRAJSINH
GUMANSINH JADEJA - Appellant(s)
Versus
STATE OF
GUJARAT - Opponent(s)
Criminal Appeal No. 226
of 1996
Appearance
:
Mr. P.M. Thakkar, ld. sr. counsel for M/S
THAKKAR ASSOC. for
Appellant(s) : 1 - 2.
Ms. Hansa Punani, APP, for Opponent(s) : 1,
Criminal
Appeal No. 425 of 1996
Ms. Hansa
Punani, APP, for the appellant
Mr. P.M.
Thakkar, ld. Sr. counsel for M/s. Thakkar Associates for the
respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 13/10/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
Criminal
Appeal No. 226 of 1996 has been filed by the appellants – original
accused Nos. 1 and 2 against the judgement and order dated 25.1.1996
passed by the learned Additional Sessions Judge, Jamnagar in
Sessions Case No.87 of 1993. The State has also filed Criminal Appeal
No. 425 of 1996 against the said judgement challenging acquittal of
original accused Nos. 3, 4, 5 and 6.
2. The
learned Additional Sessions Judge convicted the appellants of
Criminal Appeal No.226 of 1996 for offence punishable under Section
302 of Indian Penal Code and sentenced them to R.I. for life and
imposed fine of Rs.10,000/- and, in default, to suffer S.I. for six
months. The Trial Court also convicted the appellant Nos. 1 and 2 for
offence punishable under Section 323 of IPC and sentenced them for
S.I. for one month and to pay fine of Rs.100/-, and, in default
thereof, to undergo S.I. for 7 days. The appellants No.1 and 2 also
were convicted for offence punishable under Section 135 of Bombay
Police Act and were ordered to suffer imprisonment for one month and
to pay fine of Rs.500/-, and, in default thereof, to undergo S.I. for
7 days.
3. The
appellants were initially arrested on 1.3.1993 and have been in jail
throughout during pendency of trial.
4. The
case of the prosecution in brief is that on 28.02.1993, at 8 O’clock
or thereabout, the accused No.1 and complainant Jiten Dineshbhai
Bansali had a quarrel which resulted into accused NO.1 slapping
complainant Jiten, i.e. son of the deceased Dinesh Bansali. As a
result thereof, the deceased Dineshbhai Bansali, complainant Jiten
and some friends of Jiten went to meet accused No.1 for the purpose
of settlement at around 9.30, at the house of accused No.3, who is
father of accused No.1. It is further the prosecution case that at
that time, accused No.1 and 2 gave blows with knife to the deceased
and accused No.3 Ghumansinh caught hold of the deceased whereas
Mohabatsinh caused injury to witness Jiten, and Vipul Soni, original
accused No.6, was instigating the other accused.
5. The
prosecution examined various witnesses in support of its case. Dr.
Nilesh Galaiya, PW 3, Exh.31 is the Doctor who was the Medical
Officer at Irwin Group of Hospitals in the casualty OPD on the date
of the incident and had the occasion to examine the deceased when he
was first brought to the hospital’s casualty ward. He deposed that
on examination of the deceased Dinesh Bachubhai he found two
injuries on the person- one on the left hand side of the chest which
was an incise wound of 1 cm x 1 cm, with a cavity, and the second
was a incise wound on the elbow to the left hand which was of 1 cm
x 1 cm. Having been given some treatment, the deceased died while in
the casualty OPD. Dr. Satish Kalele, PW 3, Exh.25, is the Doctor
who performed postmortem of the deceased. He has deposed that in
all, there were nine external injuries which were cumulatively
sufficient to cause death. The witness further deposed that injury
No.1 was individually also sufficient to cause death.
6. Prosecution
also examined complainant Jiten Dineshbhai, who is PW 3 Exh.2, who,
along with witness Kirti Chottubhai Charola, PW 5, Exh.35, supported
the prosecution case.
7. The
Trial Court, after appreciation of evidence led by the prosecution,
came to the conclusion that appellants- original accused Nos. 1 and 2
were guilty for commission of offence punishable under Section 302 of
IPC as well as Section 323 of IPC read with Section 135 of Bombay
Police Act and sentenced them to suffer R.I. for life. The Trial
Court acquitted rest of the accused for want of evidence.
8. It
is in this background that the aforesaid two appeals, one by the
convicted appellant Nos. 1 and 2 (original accused Nos.1 and 2) and
the other by the State against acquittal of rest of the accused
(original accused Nos. 3,4,5 and 6) have been filed.
9.
Learned counsel for the appellants urged that it is a case where
appellant No. 2 Ravirajsinh Gumansinh Jadeja has an injury in his
leg. The persons are aged 19 and 20 years. Fight was sudden.
Therefore, it cannot be said that the offence as alleged by the
prosecution and held proved by the trial Court is correct position of
law. Learned counsel for the appellant further urged that the
interested witness testimony was the only testimony available on
record and there was something which was talked about in between the
parties about the compromise. The incident took on the spur of the
moment. Hence the offence as alleged is not made out.
10. Per
contra ? learned A.P.P. submitted that the case has been made out
by the prosecution. There was sufficient evidence available on
record. There was severe knife blow given by the accused on the
deceased and multiple injuries are available. Both accused persons,
namely accused Nos. 1 and 2 had caused knife injuries on vulnerable
part that this related to death and therefore the findings of the
trial Court cannot be faulted. As regards narration of accused Nos. 1
and 2 is concerned, learned A.P.P. further urged that there is an
appeal challenging the acquittal of accused Nos. 3, 4, 5 and 6 and
their acquittal cannot be said to be one which is in accordance with
evidence and therefore their acquittal be set aside. Arguing the
appeal, learned counsel submitted that the assault on the deceased
was made by accused appellant Nos. 1 and 2. Therefore, it cannot be
said that there was cumulative interest with the accused. In that
background the finding of the trial Court cannot be faulted with.
Learned counsel further submitted that cumulative intention is not
seen because the acquitted accused did not cause any injury to the
deceased. In that view of the matter, the finding of the trial Court
acquitting accused Nos. 3 to 6 cannot be said to be perverse.
11. We
have considered the rival submissions and we are of the considered
opinion that as regards accused Nos. 3,4,5 and 6, the appeal filed by
the State against their acquittal deserves no consideration because
the finding recorded by the trial Court cannot in any way be said to
be perverse. In that background, no exception can be made of the
findings recorded by the trial Court. Therefore, the State appeal
deserves dismissal.
12. As
regards accused ? appellant Nos. 1 and 2, there is overwhelming
evidence against them that they have given severe knife blows on the
deceased. There is no material on record to give their case for
lesser offence. They have used their power and knowledge to cause
injuries without any reason. They have been held to be guilty of
offence under Section 302 of the IPC and we do not see any reason to
take a different view. If they were of the younger age that cannot be
said to be given licence to commit heinous crime. They were not
juvenile. In that background, the conviction as recorded by the trial
Court is not found to be suffering from any infirmity. Their
conviction and sentence are confirmed.
13. In
the result, the appeal filed by appellant-accused Nos. 1 and 2
is dismissed. The findings as recorded by the trial Court are not
found to be suffering from any infirmity. The conviction and sentence
of accused Nos. 1 and 2 is confirmed. They are to serve out their
sentence.
14. Appeal
No. 425 of 1996 filed by the State against acquittal of original
accused Nos. 3, 4, 5 and 6 is dismissed.
(BHAGWATI
PRASAD, J) (BANKIM N. MEHTA, J)
(pkn)
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