DAHYABHAI AJABHAI RABARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of these appeals, original accused No. 1 to 4 have challenged the judgement and order dated 28.10.2004 passed by the learned Additional Sessions Judge, Fast Track Court, Banaskantha at Deesa in Sessions Case No. 117 of 2003 whereby the trial court has convicted and sentenced the accused as under. Criminal Appeals No. 2161 and 2191 of 2004 have been preferred by original accused Nos. 4 & 3 respectively whereas Criminal Appeal No. 2249 of 2004 has been preferred by original accused Nos. 1 & 2 against the conviction. The State has filed Criminal Appeal No. 1755 of 2004 against the acquittal of original accused No. 5 in Sessions Case No. 42 of 2005.

(2.) It is the case of the prosecution that on 205.2003, while the complainant and his uncle - deceased along with other persons were sitting near the old building of milk society, the accused persons along with original accused No. 5 - now acquitted came there and asked them that inspite of their requests why the dairy building was not being constructed. It is the case of the prosecution that original accused No. 1 to 3 were armed with sticks whereas accused No. 4 was armed with a dharia. Original accused No. 5 was armed with an axe. It is the case of the prosecution that an altercation took place between the parties and accused Nos. 1 to 3 gave stick blows to the complainant and the deceased whereas accused No. 4 gave a dharia blow on the leg of deceased whereas original accused No. 5 gave axe blow on the head of deceased. The deceased fell down and died on the spot. A complaint was therefore registered by the complainant who is the nephew of the deceased.

(3.) Mr. Y.S. Lakhani, learned Senior Advocate appearing for the accused does not dispute the genesis of the incident. He has, however, drawn the attention of this Court to the medical evidence more particularly the number and nature of injuries sustained by the deceased and the cause of death certificate and submitted that considering the injuries and cause of death, the case of the accused may be considered under Section 304 (Part II) or at the most 304 (Part I). He submitted that considering the nature of injuries and the fact that considerable period of time has lapsed, this Court may take a considerate view in the matter. He submitted that the accused are remorseful and are ready and willing to pay appropriate amount as compensation to the victim's family members. Mr. Yatin Soni and Mr. B.S. Patel, learned advocates appearing for accused Nos. 3 & 4 respectively have also adopted the arguments advanced by Mr. Lakhani.