STATE OF GUJ Vs. RAMSING KALICHARAN

JUDGEMENT

(1.) THIS appeal is filed by the State challenging the judgment of acquittal recorded by the learned Additional Sessions Judge, Anand in Sessions Case No.144/92. The prosecution case as per the charge was that on 11.1.92 at 10 'O clock in the morning, accused Nos.1 and 2 had a quarrel with the complainant. Witness Dahyabhai upon hearing shouts went there. Accused No.1 fired from his gun causing injuries to the complainant on his shoulder and to witness Dahyabhai in his eye. Accused No.2 gave kick and fist blows to them. Both the accused were, therefore, charged with the offence punishable under sections 307 and 323 read with section 34 of the Indian Penal Code. The Trial Court having acquitted both the accused, the State has preferred this appeal.

(2.) DURING the pendency of the appeal, accused No.1 died. Appeal qua him, therefore, is abated. We have thus confined the appeal against accused No.2 only. We have with the assistance of the learned advocates appearing for the parties perused the evidence on record. Since we are not required to comment on the involvement of accused No.1, our discussion need not be in detail. We have perused the evidence from the limited context of the involvement of accused No.2. In other words, even if the alleged act of accused No.1 of causing fire arm injuries to the complainant and Dahyabhai was established, can accused No.2 be convicted for offence under section 307 read with section 34 of the Indian Penal Code. We may recall that there is no allegation against accused No.2 of having either fired from firm arm or caused any life threatening injuries in any other manner. The only avert act attributed to him is of having given kick and fist blows. In this context, it would be more than sufficient to refer the evidence of Sukhabhai, PW -2.

(3.) SUKHABHAI Gamabhai, PW -2 in his deposition Ex.11, stated that the incident took place about 11/2 years back. He was at home. Two ladies from his family, Shantaben and Kokilaben had gone to collect fodder. He heard them shouting that their cloth for collecting fodder has been snatched away. He rushed there along with Dahyabhai Motibhai. He and Dahyabhai told the accused to return the cloth since they were collecting fodder from their own fields. Accused No.1 suddenly took out a gun and fired and splinters hit Dahyabhai in his eye and the witness received injuries on his shoulder. Thereafter, accused No.2 stared giving kick and fist blows to the complainant. When other people from the village arrived, both the accused ran away.