KHACHAR DIPU @ DILIPBHAI NAKUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Leave granted.

(2.) In these appeals, the appellant, original accused No. 1, has called in question the legal propriety of the judgment of conviction and order of sentence passed by the High Court of Gujarat in Criminal Appeal No. 950 of 2009 whereby the Division Bench has allowed the appeal of the State and converted the conviction under Section 304 Part-I of the Indian Penal Code (for short 'IPC') recorded by the learned trial Judge to that of an offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment and further the defensibility of the decision of dismissal of Criminal Appeal No. 1075 of 2009 wherein the appellant had assailed the judgment and conviction and order of sentence dated 5.3.2009 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions case No. 166 of 1998.

(3.) The factual score which led to the trial of the appellant along with two others is that three days prior to the date of occurrence, i.e., 21.5.1998, accused Nos. 1 and 2, namely, Khachar Dipu alias Dilipbhai Nakubhai and Vahtubhai Nakubhai, had a dispute regarding dumping of manure with the brother of the complainant and there were altercations which led to an inimical relationship between the parties. On the date of occurrence, when the deceased Shambhubhai, the brother of the complainant, was going to his field by cycle about 9.00 p.m. on 20.05.1998, the accused No. 1, with the intention of extinguishing the life spark of the deceased, dashed the motor vehicle No. GJ-7-U-2385 from behind and when the deceased was thrown off from his cycle, the accused No. 1 tied him behind the motor vehicle and dragged him about 10 kilometers and threw the dead body on the Gadhada Road and destroyed the evidence. The other two accused persons abetted with the common intention to assist accused No. 1. On an FIR being lodged, the criminal law was set in motion and after investigation, the accused persons were arrested and, eventually, a charge sheet for offences under Sections 302/201 read with Section 34 of the IPC was laid before the learned Magistrate who, in turn, committed the matter to the Court of Session. The accused persons denied the charges and claimed to be tried.