THAKOR DAYALSING DOHJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two appeals arise out of the judgment and order dated 3rd August, 1994 of the learned Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case no. 4 of 1993 by which the accused nos. 1 and 2 were convicted for the offences under Sec. 302 of the Indian Penal Code and both of them were sentenced to imprisonment for life and fine of Rs.5,000.00, in default to undergo simple imprisonment for a period of three months for the offence under Sec. 302 of the Indian Penal Code. The accused no. 1 was further convicted for the offence under Sec. 326 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of five years and a fine of Rs.2,000.00, in default to undergo simple imprisonment for a further period of one month. The accused no. 3 was convicted for the offence under Sec. 326 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of five years and a fine of Rs.2,000.00, in default to undergo simple imprisonment for a further period of one month.

(2.) Criminal Appeal No. 855 of 1994 has been preferred by all the three accused persons against their convictions while Criminal Appeal No. 1084 of 1994 has been filed by the State against the acquittal of the original accused no. 3 for the offence under Sec. 302 of the Indian Penal Code.

(3.) The prosecution case was that the accused no. 1 Dayalsing and the accused no. 2 Mandansing, who were real brothers, along with the accused no. 3 Balvantsing, who was their cousin brother, had, on 13th July, 1992 in the evening at about 6 o' clock, gone to the field of Fulsing who was their uncle where their cousin Thansing Dungarsing was ploughing the field bearing survey no. 74 and stopped him from ploughing the same. Thansing was asked to plough the field on hire basis by his cousin Ransing, son of Fulsing. At that time, Ransing was also present. All the three accused persons had come armed with swords. On hearing the exchange of words, Thansing's father Dungarsing and brother Champaksing came there from their adjoining field and Dungarsing asked the accused persons not to quarrel with his son Thansing as Thansing had come only at the instance of Ransing to plough the land and it was open for them to cultivate the same. The accused, thereupon, got excited and the accused no. 1 Dayalsing gave a sword blow on the forehead of Dungarsing and the accused no. 2 Mandansing also gave a sword blow on the right shoulder and scapular region of Dungarsing. Thereupon, Champaksing and Ransing intervened to save Dungarsing and, at that time, the accused no. 3 Balvantsing gave a sword blow to Champaksing on his head, as a result of which Champaksing fell down. The accused no. 1 Dayalsing also gave a sword blow to Champaksing on his left ankle. On the cries being raised by the complainant Thansing, his younger brother Vijesing came there and thereafter all the three accused persons ran away towards their village with swords in their hands. The complainant Thansing, thereafter, took his father Dungarsing and brother Champaksing to the hospital in a tractor, where Dungarsing was declared dead while Champaksing was admitted for treatment. Thansing, thereafter, proceeded to file his complaint exh. 13.