AMARSINH BHIMSINH GHARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The four appellants have directed this criminal appeal questioning the correctness and validity of the impugned judgment rendered in criminal Appeal No. 322 of 1983 on the file of the High court of gujarat at Ahmedabad. The brief facts of the case which have led to the filing of this appeal can be stated thus:

(2.) According to the prosecution on 2/07/1982 at about 3.15 p. m. the occurrence in question took place. On that day the deceased wanted to o to village Natrang and started proceeding to bus stop after informing his brother Bharat Singh, Public Witness 2. Soon after, the deceased left his house, Public Witness 2 found the four appellants following the deceased. Appellant 1 was armed with a gun, appellant 2 with a dharia, the third with a stick and appellant 4 with an axe/farsa. Public Witness 2 suspecting foul play informed the Police Patel Khumansinh who was residing in the same street staling that the tour appellants were following the deceased Dolat sinh and that he was going after the appellants. It is stated that Public Witness 2 had informed his wife Public Witness 6 also about this matter. The deceased who was going ahead of the appellant turned hack and saw the appellants following him. Evidently fearing for his life he attempted to flee away from the spot but all the appellants chased him to some distance and surrounded and ruthlessly attacked the deceased. On receipt of the injuries, the deceased died on the spot. In respect of this incident, Public Witness 2 made a complaint Ex. 21 at about 4.45 p. m. at Bhalod Police Station. The Investigating Officer after registering the case, and completing the investigation after observing all the formalities, laid the charge-sheet against the four appellants. The trial court for the reasons assigned in its judgment convicted all the appellants under Section 326 read with Section 34 Indian Penal Code, but not under Section 302 read with 34 Indian Penal Code as charged, and sentenced appellants 1 and 2 to undergo rigorous imprisonment for a period of 3 years and the appellants 3 and 4 to two years' rigorous imprisonment.

(3.) On being aggrieved by the judgment of the trial court, the four appellants have preferred Criminal Appeal No. 722 of 1983. The State on being dissatisfied with the judgment of the trial court filed Criminal appeal No. 322 of 1983 on the ground that the evidence adduced by the prosecution has clearly made out a case under Section 302 read with 34indian Penal Code. The High court for the discussions made in its judgment, discarded the reasons given by the trial court for holding that the offence was one punishable under Section 326 read with 34 Indian Penal Code and convicted them under Section 302 read with 34 Indian Penal Code and sentenced each of them to undergo imprisonment for life. While doing so, the High court dismissed the criminal appeal filed by the appellants in Criminal Appeal No. 722 of 1983. Hence, the present appeal by all the appellants.