NALINKUMAR CHAMPAKLAL @ BALCHANDBHAI SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these Criminal Appeals are preferred against judgment and order dated 26.9.2005 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Banaskantha at Deesa in Sessions Case Nos.80 of 2004 and 91 of 2004. By the said judgment, accused no.1 was convicted for offence punishable under Section 304, Part-II of the Indian Penal Code (For short "IPC") and sentenced to undergo simple imprisonment for a period of three years and ordered to pay fine of Rs.50,000/- and, in default of payment of fine, further simple imprisonment of one year was awarded. Upon deposit of the amount of fine, the same was ordered to be paid to the widow of the deceased as compensation. While accused nos.1 and 2 were also acquitted of the charges for offence under Sections 504, 302 read with Section 34 of IPC and Section 27 of the Arms Act as well as Section 135 of the Bombay Police Act. Against such acquittal of the accused persons, Criminal Appeal Nos.1333 of 2006 and 1335 of 2005 are preferred by the State, while Criminal Appeal No.2057 of 2005 is preferred by the accused no.1 against his conviction for offence punishable under Section 304, Part II of IPC.

(2.) As all these appeals are arising out of the same judgment and since they are arising out of the same incident and the evidence is common in all these appeals, the same are taken up for hearing together.

(3.) The case of the prosecution is that first informant, Chinubhai Shivlal Panchani is the resident of Thara and is an agriculturist and since last three years he was acting as Chairman of Pragati Bank, Thara. On 10.4.2004 at about 10.30 a.m., Chinubhai left his home for going to the bank. His son Bakulkumar, the deceased, along with his brother-in-law Rakesh Gandhi, one Pravinchandra Panchani and Kantilal Shivlal Shah had come to Thara from Ahmedabad on 9.4.2004 at night to meet his father. After parking Uno Car, Bakulkumar came to the chamber of Chinubhai and told him that he was leaving for Ahmedabad and thereafter within five minutes he left the chamber and came to his Uno Car. At about 10.45 a.m., Nalinkumar, the accused no.1 and his brother Nikeshkumar, the accused no.2, both resident of Vada, came in a Maruti Car and accused no.1 told the son of the complainant that on a previous day, his father had refused to give loan on the house, therefore, he would see his father and him i.e. Bakul. By saying so, he took out his revolver and fired one shot at the chest and another on left thigh from a distance of 2 ft. and thereafter both the accused ran away from the place. On receiving the fire-arm shot, Bakul fell down on the ground and started bleeding. Immediately, Kirtibhai, Parvinbhai and Rakeshbhai took Bakul to Thara Government Hospital and Chinubhai also followed them, where the doctor declared Bakul dead at about 11.05 a.m. After running away from the spot, accused no.1 went to Patan LCB office and after taking him into custody, he was referred to Thara Police Station with the weapon. Accordingly, complaint came to be registered against the accused persons. However, on investigation, since, no case was made out against accused no.2, the investigating officer filed police report under Section 169 of the Code, which came to be rejected and accordingly, another criminal case against accused no.1 came to be filed.