JITENDRA GOPAL KHATRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellants are the original accused persons who have assailed the order of conviction and sentence recorded by the learned Additional Sessions Judge Valsad at Navsari on 15.6 in Sessions case No.77 of 1983 for the offence punishable under section 307 read with section 34 of the Indian Penal Code (IPC for short hereinafter) with the help of the provisions of section 374(2) of the Criminal Procedure Code 1973 (the Code for short hereinafter). All the three accused persons are sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.300 and in default to suffer rigorous imprisonment for two months for the aforesaid offence.

(2.) The factual matrix leading to the rise of this appeal may shortly be stated at this stage. The complainant Satish Ramjor Oza P.W.2 and the injured Ravindra Ramjor Oza P.W.3 are brothers who were residing in Railway Yard at Valsad at the relevant time. The accused persons were also residing in the surrounding area at the relevant time. On 17.5.1982 at about 9.15 P.M. the complainant and the injured were standing near the shop on a thorough fare road near-the shop known as Shankar Pan House at Valsad. According to the prosecution version accused No.1 Jitendra Gopal Khatri pointing finger at the complainant said that this Manjra has become a great Dada. Thus accused No.1 started quarrelling. Thereafter accused No.1 attacked Ravindrabhai. At that time accused Nos.2 and 3 caught hold of the injured-Ravindrabhai. They all took Ravindra upto the shop of Liberty bakery. At that time the complainant the brother of injured-Ravindra intervened. Accused No.1 Jitendrabhai gave a push to him and he fell down. Accused No.1 Jitendra thereafter went to his residence through the lane opposite to Royal Hotel and brought out a knife. The prosecution further alleged that accused No.3 Suman Chhagan caught hold of the injured-Ravindra and in the meantime accused No.2 Amin Arjun brought a poker from the nearby hotel and gave a blow on the abdomen of the injured-Ravindra. Thereafter the accused No.2 Amin and accused No.3 Suman caught hold of Ravindra and accused No.1 gave knife blow on the abdomen of the injured-Ravindra. In the meantime P.W. Shakur Ahmed took away the knife from the accused No.1 and threw it behind Liberty Bakery. Satishbhai brother of injured-Ravindra apprehended that his brother-Ravindra will be finished and therefore he intervened with a bamboo stick from the sugar-cane juice larry and wielding it for self defence. Accused No.2 therefore got hurt. All the accused persons thereafter fled away from the venue. The injured was taken to the Municipal Civil Hospital for treatment where he was treated as an indoor patient. The complainant-Satish alongwith his friend Jayesh Modi found out the knife used by accused No.1 in the light of scooter from the back portion of the liberty bakery and went to Valsad Police Station and lodged the F.I.R. which is at Ex.10. Investigation was carried out. Immediately leprotomy operation was performed on the person of the injured-Ravindra. On completion of the investigation all the accused persons were charge-sheeted for the offence under section 307 of the IPC in the Sessions Court of Valsad at Navsari. The accused pleaded not guilty and claimed to be tried.

(3.) In order to substantiate the charge against the accused persons the prosecution has relied on the evidence of the following eight prosecution witnesses: P.W.No. Name Ex.No. ------- ---- ------ 1 Gopalbhai Dajibhai Patel 7 2 Satishbhai Ramjor Oza 9 3 Ravindra Ramjor Oza 11 4 Sunilbhai Ramlakhan Oza 12 5 Mahmad Iqbal Azim Shaikh 14 6 Dr. Ramratan Himatrav Ramavat 15 7 Sureshkumar Chimanlal Modi 19 8 Bachubhai Virsingji Jadeja 26 The prosecution has also relied on documentary evidence to which reference will be made at an appropriate stage. On appreciation and analysis of the evidence the learned Additional Sessions Judge of Valsad at Navsari found the accused persons guilty for the offence under section 307 read with section 34 of the IPC and awarded rigorous imprisonment of two years and a fine of Rs.300 and in default to suffer rigorous imprisonment for further two months. Hence this appeal under section 374 (2) of the Code. Learned counsel Mr. Shethna while appearing for the appellants/accused persons has firstly and forcefully contended that the impugned order of conviction is illegal and is required to be quashed. He has also alternatively contended that conviction under section 307 read with section 34 of the IPC is also unjustified and unreasonable. He has also alternatively contended that the quantum of sentence is excessive and harsh. The aforesaid contentions are seriously countenanced by the learned A.P.P. Mr. Dave.