CHANDRASINH ALIAS CHANDUBHA LALUBHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two appeals arise from the judgement and order dated 17th July 1990 passed by the learned Additional Sessions Judge, Surendranagar in Sessions Case No. 56 of 1987, convicting the original accused No.2 Chandrasinh for the offence under section 302 of the Indian Penal Code and sentencing him to rigorous imprisonment for life and to pay a fine of Rs.2,000=00, in default of which to undergo rigorous imprisonment for six months, and acquitting the original accused No.1 Ajitsinh Andubha and the original accused No.3 Bharatsinh Andubha for the offence under section 302 read with section 34 of the Indian Penal Code. There was Sessions Case No. 73 of 1987, clubbed with Sessions case No. 56 of 1987 in respect of the same incident. The original accused No.4 - Bakubha @ Ashoksinh Lalubha, who is the brother of the original accused No.2 - Chandrasinh was also tried and by the same judgement and order, original accused No.4 Bakubha @ Ashoksinh Lalubha was also acquitted for the offence under section 302 read with section 34 of the Indian Penal Code.

(2.) The prosecution version was that a couple of days before the day of incident, there was some quarrel between Sahdevsinh, who was the younger brother of the deceased Gajubha and the original accused No.4 - Bakubha @ Ashoksinh, who was the younger brother of the original accused No.2 - Chandrasinh Lalubha. In that quarrel, Sahdevsinh was injured by a spade blow given to him by the original accused No.4. However, no complaint was filed in respect of that incident. On 14th May 1987 in the morning, while Abhesinh who was also the younger brother of Gajubha, was cleaning the `utara' (a place of tethering cattle as per the prosecution witnesses) which was near their house, the accused No.4 quarrelled with him and the father of the accused No.4, Andubha caught Abhesinh's hands from the back and the accused No.4 dealt a knife blow to him for which the FIR exh.55 was lodged by Abhesinh at Muli police station. The injured Abhesinh was then sent to the Muli Hospital and thereafter taken to Surendranagar Hospital for treatment by his father Manubha.

(3.) In the Charge exh.3, it was alleged that all the four accused persons, in furtherance of their common intention of causing death of Gajubha and causing injuries to Mayaba, had entered the house of Gajubha and the accused No.2 - Chandrasinh @ Chandubha had inflicted knife blows on the chest and abdomen of Gajubha and the accused Nos. 1 and 3 had given stick blows to him, and thereby, they had intentionally caused his death and that they had committed an offence under section 452, 302 read with section 34 of the Indian Penal Code. All the accused were also charged for the offence under section 323 read with section 34 of the IPC as regards the injuries which were caused to Mayaba. In the alternative, each one of them was separately charged for the offences punishable under sections 452 and 302 of the Indian Penal Code. They were also charged for offence under section 302 read with section 114 of the IPC. Finally, they were charged for the offence under section 135 of the Bombay Police Act for committing breach of the notification prohibiting carrying of arms in public places.