MULUBHAI MARKHIBHAI NANDANIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH the above Appeals are arising out of the one and same Judgment and since the oral as well as the documentary evidence in both the appeal is the same, both the appeals are heard and considered together.

(2.) CRIMINAL Appeal No. 405 of 2010 has been filed by the appellant original accused No.2 while Criminal Appeal No. 459 of 2010 has been filed by the appellants original accused Nos.1 and 3 respectively. For the sake of brevity and convenience the appellants in above Appeals will be hereinafter referred to as "accused Nos.1, 2 and 3". Both the Appeals are filed under Section 374(2) of the Code of Criminal Procedure Code, challenging the Judgment and the order dated 16.1.2010 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No.14 of 2007, whereby the learned Sessions Judge has held (i) the accused No.1 Vajasi Ramshi Kachhot guilty of the offence punishable under Section 302 read with Section 34 of I.P. Code and sentence him to undergo life imprisonment and to pay a fine of Rs.10,000/ - and in default, to undergo simple imprisonment for 12 months, the learned Sessions Judge has also held the accused No.1 guilty for the offence punishable under Section 324 of I.P. Code and sentenced to pay a fine of Rs.3,000/ - and in default, to undergo simple imprisonment for six months; the learned Sessions Judge has also held the accused No.1 guilty for the offence punishable under Section 135(1) of the Bombay Police Act and sentenced him to undergo simple imprisonment for four (4) months and to pay a fine of Rs.100/ - and in default, to undergo simple imprisonment for 10 days; (ii) the learned Sessions Judge has held the accused No.2 Mulu Markhi Nandaniya, guilty of the offence punishable under Section 302 read with Section 34 of I.P. Code and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/ - and in default, to undergo sentence of 12 months' simple imprisonment; the learned Sessions Judge has also held the accused No.2 guilty of the offence punishable under Section 135(1) of the Bombay Police Act and awarded sentence of 4 months' simple imprisonment and to pay a fine of Rs.100/ - and in default, to undergo simple imprisonment for 10 days; (iii) the learned Sessions Judge has also held the accused No.3 Kalabhai Hamirbhai Kachhot guilty of the offence punishable under Section 302 read with Section 34 of I.P. Code and to undergo sentence of life imprisonment and to pay a fine of Rs.10,000/ - and in default, to undergo simple imprisonment for 12 months, the learned Sessions Judge has also held the accused No.3 guilty for the offence under Section 135(1) of the Bombay Police Act and ordered to undergo simple imprisonment for four (4) months and to pay a fine of Rs.100/ - and in default, to undergo simple imprisonment for 10 days. However, the learned Sessions Judge has acquitted the original accused Nos.2 and 3 for the offences punishable under Section 326 and 324 read with Section 34 of I.P. Code. Against the judgment and the order of conviction and sentence, original accused Nos.1 and 3 filed Criminal Appeal No.459 of 2010, whereas original accused No.2 filed Criminal Appeal No.405 of 2010.

(3.) BRIEF facts of the prosecution case are that on 10.11.2010 at about 05 O'clock in the evening the complainant Rajshibhai Maldebhai Karangiya along with Mitesh Hardasbhai and Gokalbhai Karshanbhai had gone to Keshod on motor Cycle for some work and after completing the work while they were returning back, at about 7.15 O'clock in the evening, near Kalabhai Policewala Ni Vadi, on the way (i) Vajsibhai Ramsibhai (accused No.1) armed with knife (chhari), (ii) Mulubhai Malkhibhai (accused No.2) armed with Axe and (iii) Kalabhai Hamirbhai Kachhot (accused No.3) armed with knife (chhari), were standing on the road and they assaulted the victims. It is alleged that all the accused attacked Gokalbhai and inflicted the blows and thereupon Rajshibhai Maldebhai Karangia and Mitesh Hardasbhai intervened and, therefore, accused No.1 gave knife blow on the back side of head of Rajshibhai and Mitesh received injury on the back side of shoulder. Gokalbhai received serious injuries and therefore he became unconscious. Thereafter, all the accused proceeded towards Okha on the motor cycle. Thereafter, relatives were called and injured were shifted to the Government Hospital where Gokalbhai Karsanbhai Ahir was declared as dead. Rajshi Maldebhai Karangia and Mitesh were given medical treatment. It is alleged in the complaint that about 6 months, prior to this incident, a quarrel took place between Vajshibhai and Mulubhai (accused Nos. 1 and 2) with deceased Gokalbhai.