MANUBHAI ATABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Challenge in these appeals is to the judgment of a Division Bench of the Gujarat High Court, disposing of two criminal appeals. The appeal filed by the appellant (for the sake of convenience described as A-2) was dismissed; the appeal filed by the State of Gujarat was allowed altering his conviction for offence punishable under Section 304 Part 1 of the Indian Penal Code (in short the IPC) to Section 302 IPC while maintaining the conviction for offence punishable under Section 135 of the Bombay Police Act, 1951 (in short the Police Act). The learned Additional Sessions Judge, Amerli in Sessions Case No. 104 of 1992 directed acquittal of Atabhai (A1), Kanubhai (A3) and Rambhai (A4) (hereinafter for the sake of convenience described as A1, A3 and A4).

(2.) As noted above, both the State and the present appellant filed appeal. By order dated 18.4.1996 High Court dismissed the States appeal so far as A1, A3 and A4 are concerned.

(3.) Background facts in a nutshell are as under: Complainant Samnatbhai Thobhanbhai stays in Harijan- Vankarvas at Kodinar. He had only one son namely Danabhai and they were staying together. The accused, his father and brothers were the neighbours of the complainant. They had some dispute regarding construction of a wall between their respective properties. Both sides had lodged complaints prior to the incident. The accused had planned to construct a wall and apprehending some civil litigation had also lodged a caveat in the court and had then proceeded with construction of the wall. On June 9, 1992, at about 6.30-7.00 a.m., Atabhai Tabhabhai came to their house and started giving abuses. The complainant, therefore, went out and inquired of Atabhai Tabhabhai the reason for giving abuses. This provoked Atabhai Tabhabhai and he started giving more and more abuses and picked up a quarrel. Around that time, Manubhai Atabhai, the appellant, came to the spot with an open knife, Kanubhai Atabhai came there with an axe and Rambhai Atabhai had an iron pipe in his hand. By the time these developments took place, Danabhai, son of the complainant (hereinafter referred to as the deceased) came out from the house and tried to cool down Atabhai Tabhabhai. However, Atabhai Tabhabhai and his sons Manubhai Atabhai, Kanubhai Atabhai and Rambhai Atabhai got annoyed. Upon provocation of Atabhai Tabhabhai, Manubhai Atabhai gave a knife blow in the stomach of Danabhai the deceased. The complainant intervened and therefore Kanubhai Atabhai gave an axe blow on the head of the complaint and Rambhai Atabhai gave a pipe blow which was received by the complainant Samatbhai Thobhanbhai on his left hand. Atabhai Tabhabhai had caused injury on the left thigh of the complainant with a stone. Wife of Danabhai namely Valiben and Samatbhai Thobhanbbai and Girdharbbai Govindbhai also reached the place of incident soon thereafter and the assailants, therefore, went away. Deceased Danabhai, Samatbhai and the complainant were taken to the hospital where the deceased Danabhai was declared dead. On the basis of the FIR lodged by Samatbhai Thobhanbhai, offence was registered at C.R.No.85/92 at Kodinar Police Station, the case was investigated upon and charge sheet was filed. Accused persons pleaded false implication.