STATE OF GUJARAT Vs. DHARMESH, SUKHDEV, KALIO

JUDGEMENT

(1.) As both the appeals arise from the judgment of the learned Sessions Judge in Sessions Case No.171/08, they are considered simultaneously.

(2.) The short facts of the case are that a complaint was filed on 20.02.2008 by Gulabbhai p.w.4 with Katargam Police Station stating that Dharmesh @ Sukhdev @ Kalio (accused) was inside the jail in connection with other cases under Prohibition Act. He was staying with his elder brother Ganpat and thereafter, on account of habitual consumption of liquor, he was removed from the house and he used to give threat to both the brothers. On 19.02.2008, in the evening, at about 6.00 o clock, the accused came at the residence of the complainant and started abusing and he gave a threat that today, he will kill one of the brothers and therefore, the family and brother of the complainant were afraid and due to the same, all the members of the family were watching TV and thereafter, at about 1.30 to 2.00 o clock in the early morning, they had gone to sleep and brother of the complainant Ganpat (deceased), had gone in the room located in the front door. At about 3.00 o clock in the morning, when some disturbances started, the complainant and his wife got up and found that accused was giving blows on the head with the weapon upon the deceased and they saw the accused running away. They found that the weapon was like sword. The injuries were sustained by the deceased on the head, neck, backside of the hand, and fingers were cut. Since his brother expired, he was to be carried to the hospital for treatment but some time was taken to get rickshaw. In the meantime, the deceased expired. Hence, the complaint was filed.

(3.) The aforesaid complaint came to be investigated by the police and the chargesheet was filed against the accused. The case was committed to the Court of the learned Sessions Judge being Sessions Case NO.171/08. The learned Sessions Judge framed charges and thereafter, the trial was conducted. The prosecution in order to prove the guilt of the accused, examined 23 witnesses, details of which are recorded by the learned Sessions Judge at para 6 in the judgment. The prosecution also produced 15 documentary evidences, details of which are mentioned by the learned Sessions Judge in para 7 in the impugned judgment. The learned Sessions Judge thereafter recorded the statement under section 313 of Cr.P.C. wherein, the accused denied the evidence against him and in the further statement, the accused stated that the witnesses were knowing him earlier and therefore, they have identified. The complainant and the deceased were brothers. The police complaint was filed on the basis of doubt. The learned Sessions Judge thereafter, heard the prosecution and defence and the learned Sessions Judge found that the prosecution has been able to prove the case for causing death of the deceased by the accused, but the learned Sessions Judge found that the case would fall under section 304 PartII of IPC and therefore, convicted the accused accordingly. The learned Sessions Judge thereafter heard the prosecution and defence for sentence and imposed sentence of 10 years RI with the fine of Rs.5000/and further 2 years RI for default in payment of fine for the offence under section 304 PartII read with section 452 and 188 of IPC, but did not impose separate sentence for the offence under sections 452 and 188 of IPC. Under the circumstances, the State has preferred Criminal Appeal No.879/10 against acquittal of the accused for the offence under section 302 of IPC, whereas, the original accused has preferred appeal being Criminal Appeal No.1237/11 against conviction made by the learned Sessions Judge. Under the circumstances, both the appeals before this Court.