KIRANSINH HANUMANSINH CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these appeals are preferred against the judgments and orders dated 10.9.2004 passed by learned Additional Sessions Judge, 3rd Fast Track Court, Panchmahals at Godhra in Sessions Case Nos. 188 of 2003 and 389 of 2003. By the impugned judgment, in Sessions Case No. 188 of 2003, accused No. 1 was held guilty for the offence punishable under Sec. 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 500/ -, and in default of payment of fine, simple imprisonment of 15 days was imposed. Accused No. 1 was also held guilty for the offence punishable under Sec. 25(c) of the Arms Act and ordered to undergo three years' rigorous imprisonment and to pay fine of Rs. 100/ - and, in default of payment of fine, simple imprisonment of five days was awarded. Accused No. 1 was acquitted of all other offences alleged against him. Accused Nos. 2 to 13 were acquitted of all the charges levelled against them. In Sessions Case No. 389 of 2003, accused Nos. 1 and 2 were convicted for the offence punishable under Sec. 323 of IPC and ordered to undergo imprisonment for one year and to pay fine of Rs. 250/ - and, in default of payment of fine, ten days' simple imprisonment was awarded. Accused Nos. 1 and 2 were also convicted for the offence punishable under Sec. 325 of IPC and sentenced to suffer imprisonment for five years and to pay fine of Rs. 500/ -, and in default of payment of fine, they were ordered to undergo further simple imprisonment for 15 days. Feeling aggrieved by the impugned judgment, accused No. 1 of Sessions Case No. 188 of 2003 has preferred Criminal Appeal No. 131 of 2005, while Criminal Appeal No. 1556 of 2004 is preferred by accused Nos. 1 and 2 of Sessions Case No. 389 of 2003. Criminal Appeal No. 291 of 2005 and Criminal Revision Application No. 600 of 2005 are preferred against acquittal of accused persons of Sessions Case No. 188 of 2003.

(2.) The facts in brief giving rise to the filing of present appeals are as under: -

(3.) At the time of hearing of these appeals, Mr. Sunil Joshi, learned advocate appearing for the appellant of Criminal Appeal No. 131 of 2005 -original accused No. 1 in Sessions Case No. 188 of 2003 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. However, after arguing the matter at some length, he fairly conceded that in view of the medical evidence and statements of other witnesses, though the offence against accused No. 1 can be said to have been proved, he is arguing only on the quantum of punishment. He submitted that the incident in question has occurred in the spur of the moment and there was no pre -planning nor there was any intention on the part of accused No. 1 to kill the deceased. He also submitted that as per the cross -complaint filed by the accused, complainant and other persons, including the deceased, were armed with deadly weapons and they caused injuries to him. He further submitted that even the son of the accused and one Bhopatsinh were being beaten up by the complainant side and, therefore, even if the case against accused No. 1 is believed, it can be said that he acted in self -defence and with a view to protect the lives of his son and other persons. He, therefore, submitted that the trial Court has committed an error in convicting the accused No. 1 for offence punishable under Sec. 302 of IPC and at the most it would fall under Sec. 304, Part -I of IPC. In support of his submissions, Mr. Joshi has relied upon an unreported decision of this Court rendered in Criminal Appeal No. 1219 of 2006 and allied appeals decided on 4.2.2016, wherein this Court has observed as under: -