KHODA AVSAR CHUMERIA KOLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these appeals arise out of the common judgment and order of conviction and sentence rendered in Sessions Case No.151 of 1998 and Sessions Case No.12 of 2003 by the learned Additional Sessions Judge, (2nd Fast Track Judge), Dhrangadhra on 06/04/2004, whereby the appellants herein have been convicted for the offences punishable under Sections 302 r/w Section 34 and Section 324 r/w Section 34 of the Indian Penal Code (for short IPC) and sentenced to undergo imprisonment for life with fine of Rs.1,000/, in default, to undergo six months SI; and sentenced to undergo one year RI with fine of Rs.250/, in default, to undergo one month RI respectively.

(2.) BRIEFLY stated, the facts of the case are that the complainant ­ PW No.1, being a sole eye witness, an injured, lodged a complaint against the appellants alleging the offence under Sections 302 and 324 of the IPC for they having caused homicidal death of his brother­Sudhir Ratilal. As per prosecution case, deceased ­ Sudhir was a resident of Tal. Dhragandhra and the complainant and accused were resident of Village Rajpar situated near Dhragandhra. The complainant had been to Dhragandhra for purchasing various articles required by him to run his Pan Shop situated at Rajpar and it is the case of prosecution that while the complainant and his brother were near the State Bank in the market at Dhragandhra, accused ­ Khoda Avsar Koli and Natubhai Laghrabhai Koli came there on motorcycle and accused Husen started giving knife stabs on the person of the deceased viz., on chest, as also to the complainant. Accused ­ Khoda Avsar attributed with a wooden log and accused ­ Natu Koli is attributed with iron pipe and it was alleged that accused ­ Khoda also took part in the offence by inflicting the blows by wooden log on the person of the deceased. Accused ­ Umer Husen absconded for a period of five years after the offence and, therefore, subsequently, upon his arrest, Sessions Case No.12 of 2003 was lodged against him. Both the Sessions Cases were tried together; various witnesses were examined by the prosecution including PW No.1Rajesh Ratilal brother of deceased at Exh.23, who is the sole eye witness and injured and, ultimately at the end of trial the learned Court below has recorded the conviction and sentence as stated herein above.

(3.) LEARNED Counsel Mr.Jayant M Panchal appearing for A1 and A2 submitted that, even if the evidence adduced by the prosecution is taken at face value, no case against the said accused persons with the help of Section 34 and 114 of the IPC, is made out, inasmuch as, there are no injuries worth the name either caused by wooden log or iron pipe; nor there is an evidence of preconcert, which is a sine qua non for applicability of Section 34 of the IPC. In his submission, incident had admittedly started suddenly and these accused did not have even know the possession of deadly weapon with accusedUmer and, therefore, could not have shared the common intention to kill the deceased. Relying upon the decisions in case of Vithal Tukaram More & Ors., Vs. State of Maharashtra [(2002) 7 SCC 20] and in case of Dani Singh & Ors., Vs. State of Bihar [(2004) 13 SCC 203], Mr.Panchal submitted that what has been established by prosecution is mere presence of A1 and A2 at the site of offence and, therefore, they could not have been convicted.