MALEK NASRATKHAN @ NASIBKHAN RASULKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE appeals arise out of a judgment dated 30th March 2010 rendered by the learned Additional Sessions Judge, Patan in Sessions Case No.79 of 2008. Originally, there were three accused, who were charged with the offences punishable under section 302, 504 read with section 34 of IPC and section 135 of the Bombay Police Act. Accused Nos. 2 and 3 were acquitted of all the charges. Accused no.1 Nasratkhan alias Nasibkhan Rasulkhan Malek was convicted for offences under section 302 and sentenced to imprisonment for life. He has filed Criminal Appeal No.697 of 2010 challenging his conviction and sentence. State has preferred Criminal Appeal No.1084 of 2010 challenging the acquittal of original accused Nos. 2 and 3. Original complainant has also preferred Criminal Appeal No.1163 of 2010 similarly challenging the acquittal of accused Nos. 2 and 3. We are informed that during the pendency of the appeal, accused no.3 expired on 04.09.2012. Learned advocate Shri Majmudar placed on record a copy of his death certificate. The acquittal appeals qua such accused have thus abated.

(2.) CHARGE was framed at Exh.22 alleging that on 12.10.2008 at 8:00 O'clock in the morning, all the three accused arrived at Thakorvas where deceased Mehboobkhan Kesarkhan was standing. They abused Mehboobkhan. Accused Nos. 2 and 3 thereafter held him and accused No.1 gave a spear blow on his chest causing his death.

(3.) THE first informant Suvadkhan Kesharkhan Malek, P.W.4, Exh.50 deposed that on the date of incident, at about 8:15 to 8:30 in the morning, Mehboobkhan was going towards his field along with Thakor Bhavsang and Ramabhai Govindbhai. At that time, he himself was going to his field in a tractor. At that time, the accused were standing nearby a motorcycle. Mehboobkhan and Rasulkhan (accused no.3) were abusing each other. Nasrathkhan (accused no.1) blamed Mehboobkhan for inciting village people some 34 days back. Mehboobkhan was criticizing about such accusation and asked him not to abuse him. At that time, accused nos. 2 and 3 held Mehboobkhan and accused no.1 gave a spear blow to Mehboobkhan. He tried to give another blow but instead of hitting Mehboobkhan, he hit his father Rasulkhan. All three thereafter escaped on their motorcycle. His brother was profusely bleeding because of the injuries. He was shifted to Radhanpur Government Hospital where he died.