STATE OF GUJARAT Vs. SHAIKH JAKIRBHAI @ KALUMIYA FAKIRMIYA

JUDGEMENT

(1.) As all these appeals arise out of the impugned judgment and order passed by the learned Principal Sessions Judge, Mehsana passed in Sessions Case No. 149 of 2004 dated 29.09.2006, one appeal being Criminal Appeal No. 1912 of 2006 preferred by the original accused no.1 challenging his conviction for the offence punishable under Section 304 Part I of the Indian Penal Code and another appeal preferred by the State being Criminal Appeal No. 2238 of 2006 for enhancement of the sentence imposed by the learned trial Court imposed while convicting the original accused no.1 for the offence punishable under Section 304 Part I of the Indian Penal Code and another appeal being Criminal Appeal No.2141 of 2006 preferred by the State challenging the impugned judgment and order passed by the learned trail Court acquitting the original accused nos. 2 to 14, all these appeals are decided and disposed of together by this common judgment and order.

(2.) Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Principal Sessions Judge, Mehsana passed in Sessions Case No. 149 of 2004, by which, the learned trial Court has convicted the original accused no.1 for the offence under Section 304 Part I of the Indian Penal Code, the original accused no.1 has preferred Criminal Appeal No. 1912 of 2006.

(3.) It is the case of the prosecution that complainant Hiteshbhai Parshottambhai Patel resident of village Dasaj, Tal: Unja has filed a complaint before the Unjha Police Station on 12.11.2002 stating the fact that there was Pran Pratishta Mahotsav of Dasajiya Gog Maharaj on 11.11.2002 in village Dasaj. It is further the case of the prosecution that after completion of Mahotsav complainant along with Patel Rameshbhai Shivrambhai were going towards their house and as they have heard regarding assault by Muslim community, both the brothers were going towards their house in hurried manner. It is further the case of the the prosecution that while they arrived near Vadas of Patel, about 20 to 25 persons were putting fire in Grass and all these people were seen by complainant and prosecution witnesses in the light of fire in which accused Kalumiya Fakirbhai Shaikh was armed with gun, accused Kadarbhai Pannubhai Shaikh was armed with gun, Basirbhai Kadarbahi Shaikh was armed with Dharia and accused Ibrahimbhai was armed with sword. It is further the case of the prosecution that on seeing complainant and prosecution witnesses, all these accused persons were saying that Hindus are going, kill them and thereby accused Kalubhai Fakirbhai has fired from his Gun, and therefore, complainant immediately sit down whereas Rameshbhai was standing and as a result he received injuries of bullet. In the meantime, Patel Kiritbhai Naranbhai Patel from his maholla came to the spot of incident and taken Rameshbhai in his Moholla and thereafter, he was taken to Cottage Hospital, Unjha, where he has been declared dead. It is further the case of the prosecution that during this quarrel, prosecution witnesses Kirtibhai and Virchandbhai has also received injuries, and therefore, he was also admitted in hospital. It was came to know that about 23 persons have received injuries in this quarrel, in which some of the persons were admitted in Civil Hospital, Ahmedabad. It is further the case of prosecution that in the said Pran Pratistha Mahotsav of Dasajiya Gog Mahraj, persons from Muslim community were not invited, and therefore, due to this, feelings of the Muslim community were being hurt and therefore, due to grievance, they have assaulted upon Hindu Community.