STATE OF GUJARAT Vs. AMARSINH BHIMSINH GHARIA

JUDGEMENT

(1.) These two appeals are directed against the judgment of the learned Sessions Judge, Bharuch rendered on 29 -12 -1982 while deciding Sessions Case No. 65 of 1982. The learned Sessions Judge convicted accused Nos. 1 and 2 under Section 326 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/ - in default to suffer R.I. for six months. Accused Nos. 3 and 4 also were convicted for an offence punishable under Section 326 read with Section 34 I.P.C. However, as they were young they were sentenced to suffer R.I. for two years and to pay a fine of Rs. 250/ - each in default to suffer R.I. for six months. The conviction of accused is challenged by filing Criminal Appeal No. 722 of 1983 while the State filed Criminal Appeal No. 322 of 1983 challenging the conviction under Section 326 read with Section 34 IPC and praying that the conviction should have been for the offence punishable under Section 302 of the IPC read with Section 34 IPC.

(2.) The prosecution case may be briefly stated as under:

(3.) Accused Nos. 1 and 2 are brothers, accused No. 3 is the son of accused No. 2 and accused No. 4 is the son of accused No. 1. This particular incident occurred on 2 -7 -1982 at about 3.00 p.m. in the sim of village Rund in Jhagadia Taluka, District Bharuch. One Dolatsinh Umedsinh Rathod died in this incident. The prosecution case is that on 25 -5 -1982 there was an incident of quarrel resulting in hurt for which cross -complaints came to be filed between the parties. Thereafter on 2 -7 -1982 this incident occurred. According to the prosecution Dolatsinh Umedsinh Rathod, the deceased was residing in village Brankad and he started from his house to go to a bus stand. In fact at that place there is no bus stand but a place where the bus stops. According to the prosecution the deceased wanted to go to Netrang and he told his brother Bharatsinh that he was going to Netrang and would return the next day. So saying he started from his house. Soon after Bharatsinh saw that four accused persons followed the deceased. Accused No. 1 was armed with gun, accused No. 2 had a dharia with him, accused No. 3 had a stick and accused No. 4 had an axe or farsi Bharatsinh suspected a foul play and he told this to Police Patel Khumansinh who is residing in the same street and who has got the house which is third house from his house. He told him that four accused were following Dolatsinh and that he was going after the accused and Police Patel also should follow. Bharatsinh told about this to his wife Ratanben (P.W. 6). Dolatsinh ultimately reached the bus -stop. The accused were following Dolatsinh and were at a distance of about 200 ft. Bharatsinh was following the accused and he was also at a distance of about 200 ft. from the accused. Dolatsinh looked back and he noticed that four accused persons were following him. Therefore, he started running towards Bhalod and ultimately ran in the fields. The accused also ran after him. Seeing Dolatsinh and the accused running Bharatsinh also started running. Ultimately four accused could reach Dolatsinh. At that time Bharatsinh was at a distance of about 30 or 35 ft. from that place and he stood there perhaps because by that time four accused had surrounded Dolatsinh and started giving him blows with the weapons which they possessed. The result was an instantaneous death. Four accused ran away. Bharatsinh thereafter went to the place where his brother was lying dead and he decided to go to Bhalod Police Station for filing the complaint. Fearing that it would be dangerous to go by a normal route he went through the fields and ultimately reached Bhalod Police Station and filed a complaint Exhibit 21 at 4 -45 p.m. Now the prosecution case is that Dolatsinh had left his house at about 3 -00 p.m. and he was killed round about 3 -15 p.m. Bharatsinh reached the spot, waited there for about ten minutes and, therefore, he started by 3 -30 p.m. for going to Bhalod Police Station and ultimately filed the complaint at 4.45 p.m. which was recorded, entry was made in the Police Station diary Exhibit 35 and the offence was registered by P.S.O, Ramdas Shankerdas P.W. (10) Exhibit 34. The investigation was handed over to P.S.I. Ganesh Solanki (P.W. 12) Exhibit 37. He went to the place of scene of offence immediately on 2 -7 -82 and prepared the panchnama of the place of scene of offence. Immediately thereafter he recorded the statements of Chandrasinh, Ratanben, Khumansing, Mansing, Dalpat Naliya, Chiman Dalpat, Jesang Naran and others. Further statement of the complainant was also recorded. On that very night accused Nos. 1, 3 and 4 were arrested by 1 -00 a.m. They were found in the house of accused No. 1. Gun, stick and farsi were attached. Bush -shirt of accused No. 4 was attached. Baniyan produced by accused No. 3 was also attached. Panchnama was prepared which is at Exhibit 32. Accused No. 2 surrendered himself on the next day morning at the police station with a dharia which was also attached and another panchnama was prepared which is at Exhibit 33. On 14 -7 -1982 blood - stained clothes and weapons etc. were sent to Forensic Laboratory. Ultimately after completing the investigation charge -sheet was submitted against the accused persons on 21 -8 -1982. In due course the accused came to be committed to the Court of Sessions.