KHUMANSINGH DABHSING CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Khumansing Dabhsing Chauhan by this appeal has brought under challenge the impugned judgment and order dated 16-8- 1995, rendered in Sessions Case No. 82 of 1992 passed by the learned Additional Sessions Judge, Panchmahals at Godhra, wherein, on his corning to be tried alongwith 3 others for the alleged offences punishable under Sections 302, 323 and 34 of the I. P. Code and Section 135 of the Bombay Police Act, 1951, was, at the end of the trial, convicted for the same and sentenced to R. I. for life and to pay fine of Rs. l,000/- and in default of payment of fine to undergo further R. 1 for 2 months. The other three co-accused of the present appellant were acquitted.

(2.) According to the prosecution, the incident in question took place at village Kalantra (Kalol Taluka) on 2-7-1990 at 19.40 hours, wherein Khumansing Dabhsing Chauhan - the present appellant, and three others (family members), armed with knife, sticks, etc. attacked PW 2, Bai Sharda, wherein in the process on Ganpat, a boy aged 12 intervening, was stabbed to death. This incident was seen by three persons, viz. (1) PW 2- Shardaben-Ajabsing, who happens to be the mother of deceased Ganpat, (2) PW 4-Vakhatsing Somabhai, who happens to be the uncle of the deceased, and (3) PW 5-Bhemabhai Mathurbhai, a neighbour. According to PW 2, she had a shop of vegetables and provisions on the otta of her house. On the day of the incident. when Khumansing demanded goods on credit, she refused to give. Thereafter, about 10 minutes, Khumansing, Kabhai Dabhai, Rangeet Kabhai and Raju Kabhai came and attacked PW 2. At that lime Kabhai Dabhai (acquitted) picking up quarrel inquired as to why she did not give goods on credit. Thereafter they started giving stick blows. Raju Kabhai and Rangeet Kabhai caught hold of her While Kabhai Dabhai and Khumansing heat her. When they were so beating PW 2, Ganpat intervened to save his mother PW 2. and at that time, Khumansing gave a knife blow on the left side of the abdomen of Ganpat, as a result of which Ganpat fell down in the lap of PW 2. Thereafter all the accused made good their escape. Immediately thereafter, the injured was taken to the hospital, but on the way he succumbed to the injury and passed away. Thereafter PW 2 gave complaint Exh. 34 before the PSI, Badmalia at Vejalpur Police Station which came to be recorded on the very day at 23.45 hours. On the basis of this information, after the investigation was over, all the 4 accused persons came to be charge-sheeted to stand trial for the aforesaid alleged offences before the Sessions Court at Godhra, where they pleaded not guilty and claimed to be tried. The Trial Court, after duly appreciating the prosecution evidence brought on record, acquitted the other three accused and convicted the present appellant as stated above in paragraph 1 of this judgment, giving rise to the present appeal.

(3.) Mr. M. R. Vyas, Ld. Advocate, (appointed) appearing for the appellant, at the time of admission had extensively made use of the record and proceedings, and we have heard him quite at length for more than an hour. The main thrust of the argument of Mr. Vyas is that there was only one blow given to Ganpat and in that view of the matter, the offence would squarely fall within the ambit of Section 304 Part-I of the I. P. Code. In support of this contention, Mr. Vyas has relied upon the decision of the Supreme Court rendered in the case of Karam Singh v. State of Pun/ah, reported in 1994 SCC (Cril.) 64. On the basis of this submission, Mr. Vyas ultimately urged that this matter could be finally disposed of by recording conviction under Section 304 Part -I of I. P. Code sentencing accused to five years.