STATE OF GUJARAT Vs. JAKU BAWLA SODHA

JUDGEMENT

(1.) The present Appeal filed under Sec. 378(1)(3) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dtd. 30/6/1997 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No.129 of 1994 acquitting the accused for the offences punishable under Ss. 302, 323, 504 and 34 of the Indian Penal Code, 1860 (IPC).

(2.) The case of the prosecution as per the charge at Exhibit 1 and as per the First Information Report at Exhibit 22 is that on 16/7/1994 at about 9.00 p.m., all the accused had assaulted the deceased -Hasam Mamed Buchad with sticks and a pipe. The reason assigned for such an assault is relating to the dispute of using the road, the accused had assaulted the deceased with sticks and an iron pipe. The trial Court, after examining the oral and documentary evidence, acquitted the accused by recording that the act / assault on the deceased was in self-defence as the accused had also suffered 19 injuries.

(3.) At the outset, learned AGP Mr. Hardik Soni has submitted that the acquittal recorded by the trial Court is required to be quashed and set aside, since the evidence demonstrates that the act done by them was not in self-defence. It is submitted that the evidence reflects that in fact the accused No.1-Jaku Bavla Sodha had assaulted the deceased with a pipe on vital part of his body, i.e. head which resulted into his injuries. He has referred to the testimony of PW1-Dr. Bansidhar Ganpatlal Gupta, who has undertaken the post mortem of the deceased. He has submitted that the post mortem report as well as the evidence reveals that he had suffered fracture on his skull and accordingly, the deceased died on the spot. By referring to the evidence of the complainantPW3-Jaku Dawood Buchad, who is the nephew of the deceased, it is submitted that his deposition establishes the manner in which the incident has occurred. He has submitted that this witness has categorically named the accused No.1 who had assaulted the deceased with the iron pipe. Similarly, he has referred to the deposition of another eye witness, PW8-Juma Alibhai, who is the close relative of the deceased and has submitted that he has named the accused No.1-the uncle-in-law and the other accused in the offence. Reference is also made to the evidence of PW7-Jinatben Hasambhai, who is the wife of the deceased and has submitted that she has deposed in the same line to that of the other witnesses. Finally, it is submitted that in fact in the 313 statements, all the accused have admitted that they had assaulted the deceased. Thus, it is urged that the acquittal recorded by the trial Court may be set aside.