DHARMESH PARSOTTAMBHAI RAJPUT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants - original accused Nos. 1 to 6 were convicted by the Additional Sessions Judge, Court No. 9, Ahmedabad City for the offence punishable under Ss. 143, 147, 148 149 read with 302, 324, 323 of Indian Penal Code and Sec. 135 of B.P. Act vide judgment and order dated 24.02.2011 passed in Sessions Case No. 58 of 2009. The accused were ordered to suffer imprisonment as under:

(2.) As per the complaint, one Shivrajsinh @ Siju @ Raju Manchhasinh Gill and other 6 persons had entered into a dispute with Niku and Tanu around five days prior to the date of incident. Keeping the said animosity in mind, on the date of incident, which was the festival of Janmashtami, the accused went to the place of offence and inquired with the deceased Naranbhai regarding the whereabouts of Tanu and Guni. The deceased did not reply properly and therefore there ensued a scuffle between them. Accused No. 1 went away from there but later on returned with other accused persons armed with swords and sticks and attacked the deceased and other persons. Accused No. 2 gave sword blow to the deceased on his neck and the deceased fell down. Thereafter when the complainant and other witnesses rushed to save the deceased, accused No. 6 gave sword blow to the complainant and other witnesses. The other accused also gave stick blows to the complainant and other witnesses.

(3.) Learned advocates appearing for the accused have concentrated only on the aspect of quantum of sentence. Learned advocates have drawn the attention of this Court to the injuries mentioned at Column No. 17 & 19 of the post mortem report and submitted that the court may consider that the incident in question happened in a weaker moment. It is submitted that considering the fact that the altercation led to the attack on the deceased which was in a spur of moment coupled with the fact that only one injury proved fatal to the deceased, the Court may consider the case of the appellants under Sec. 304 (Part I) or 304 (Part II) of Indian Penal Code. It is submitted that the injury sustained by the complainant was only a CLW wound whereas the injuries sustained by other witnesses were mere abrasions. It is therefore submitted that this court may consider the case of the appellants from the said angle.