STATE OF GUJARAT Vs. VISHNUBHAI CHOTABHAI TALPADA

JUDGEMENT

(1.) This Appeal, preferred by the State of Gujarat under Section 378 [1] (3) of the Code of Criminal Procedure, 1973 ["CrPC" for short], seeks to challenge judgment and order dated 1st August 2005 passed by the learned Presiding Officer, 9th Fast Track Court, Nadiad in Sessions Case No. 233 of 2004, whereby, the respondent herein is acquitted of the charge for the offence punishable under Sections 302 & 504 IPC, but recorded conviction under Section 323 IPC for a term of three months and fine of Rs. 500/=; and in default thereof, to undergo one month simple imprisonment with a direction for set off of the period already undergone as an under -trial prisoner. Brief facts of the case, to appreciate the rival contentions urged before us for and on behalf of the respective sides, are - On 15th July 2004, at about 12:45 noon, when the complainant and deceased Vijaybhai Devajibhai went to sleep under a Baniyan tree, at that time, Vishnubhai took up altercation with deceased in respect of illicit relationship he had with the complainant. The brother of the accused started abusing the deceased and had beaten up the deceased with lathis and cause injuries over vital parts of the body viz., head, neck, which resulted into deceased -Vijaybhai succumbing to the injuries. Accordingly, a complaint came to be lodged against the accused -Vishnubhai Chhotabhai Talpada [respondent herein] for the offence punishable under Section 302 read with Section 504 IPC at Nadiad Town Police Station, being C.R No. 274/2004.

(2.) After investigation, the Police laid chargesheet before the Chief Judicial Magistrate, Nadiad. Since the offence committed by the accused was absolutely triable by the Court of Sessions, the matter was committed to the Court of learned District & Sessions Judge, Nadiad on 27th October 2004, where it was numbered as Sessions Case No. 233 of 2004.

(3.) At trial, the respondent pleaded not guilty and claimed to be tried, and therefore, the prosecution examined 12 witnesses and produced 8 documentary evidences before the learned trial Judge. After a full - fledged trial, the learned Presiding Officer, 9th Fast Track Court, Nadiad was pleased to acquit the accused from the charges punishable under section 302 and 504, but convicted him under section 323 IPC for three months simple imprisonment and fine of Rs. 500/=; and in default, to undergo one month simple imprisonment with a direction to set off the sentence, if the convict had undergone the same as an under -trial prisoner, giving rise to filing of the present Appeal by the State of Gujarat. Heard learned advocates appearing for the respective sides.