BHARAT VASHRAMBHAI RABARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 20.7.2006 passed by the learned Addl. Sessions Judge, Fast Track Court no. 2, Bharuch in Sessions Case No. 21/2006, whereby, the learned Judge has convicted the appellant no. 1 under sec. 304-II of IPC and sentenced to undergo R/I for five years and to pay a fine of Rs. 1000/-, in default, to undergo further S/I for three months. The appellant no. 2 is also convicted under sec. 304-II of IPC and sentenced to undergo R/I for a period of three years and to pay a fine of Rs 1000/-, in default, to undergo further S/I for three months, which is impugned in this appeal.

(2.) That on 21.10.2005, when the nephew of complainant named Dhaval was cracking fire crackers in front of the house of complainant. The accused no. 1 Bharat Vashrambhai, who is residing near the house of deceased, came and asked Dhaval that why he is cracking the fire crackers and abused him. At that time, the elder brother of the complainant namely Ashwinbhai told that accused no. 1 that due to Diwali festival and therefore, he is cracking the fire crackers, so why are you abusing ? Being aggrieved by the said utterance, the accused no. 1 had been provoked and went in his house and called his father, that is, accused no. 2. He came with knife and assaulted on the deceased Ashwinbhai and stabbed the same on the left side of his chest. At that time, accused no. 1 was armed with stick and had given stick blow on the back side of Ashwinbhai, due to which, he fell down and there was a bleeding. The other family members including the complainant and his sister, brother-in-law and father-mother of Ashwinbhai tried to free the deceased from the accused persons. They had also been beaten by the accused persons. Thereafter, Ashwinbhai became unconscious and both the accused persons went away from the place of offence and then, Ashwinbhai was taken to Government Referral Hospital in a Tempo of one Rafiqbhai, where, he had been declared dead after examined by the Doctor.

(3.) Therefore a complaint came to be filed by the complainant. The panchnama of the scene of offence place was prepared in the presence of panch witness, inquest panchnama was also prepared and statements of witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned JMFC, Zaghadia. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No. 21/2006.