CHAUDHARY POPATBHAI SHANKARBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellants original accused Nos. 1 & 2 have filed this appeal under Section 374 (2) of the Code of Criminal Procedure (for short 'Code') against the judgment and order of the conviction and sentence dated 10.06.2005 passed by the learned Principal Sessions Judge, Mehsana in Sessions Case No. 245 of 2004 & Sessions Case No. 54 of 2005 whereby the appellants were convicted for an offence punishable under Section 304 (1) read with Section 34 of IPC and sentenced them to undergo R.I. for 10 years and to pay fine of Rs.20,000/ - and in default of payment of fine, to undergo S.I. for a period of six months. The learned Sessions Judge has also convicted them for the offence punishable under Section 326 read with Section 34 of IPC and sentenced them to undergo R.I. for five years and to pay fine of Rs.10,000/ - and in default of payment, to undergo S.I. for a period of two months. The learned Sessions Judge has further convicted them for the offence punishable under Section 324 read with Section 34 of IPC and sentenced them to undergo R.I. for one year and to pay fine of Rs.10,000/ - and in default thereof, to undergo S.I. for 15 days. The learned Principal Sessions Judge has also passed an order that the accused Nos. 1 & 2 shall pay a sum of Rs. 5 Lac each as special compensation to the widow and the children of the deceased. The learned Sessions Judge has, however, acquitted the appellants accused Nos. 1 & 2 from the charge of offence punishable under Section 147, 148, 149, 307 & 120 -B of IPC. The other three accused have been acquitted from all the offences punishable under Sections 147, 148, 149, 302, 324, 326, 307 & 120 -B of IPC.

(2.) THE brief facts as disclosed in the complaint and unfolded during the trial are as under : -

(3.) THAT on 12.08.2004, at about 07.30 p.m., the complainant, namely, Amratbhai Malabhai Rabari was at his home. Popatbhai Shankarbhai Chaudhary, Sarpanch of Gadha village and his brother Chaudhary Babubhai Shankarbhai and other four persons came in a Jeep. They stopped the said Jeep on the road in Rabarivas, Kansara Kui and Chaudhary Popatbhai Shankarbhai and his brother Chaudhary Babubhai Shankarbhai and other four persons came to his house and told him to come out and on being asked as to why he should come out, he was told that he has grazed his cattle (Bhelan) in the grass of wasteland. The complainant told him that he did not go there. Upon giving such reply, said persons got angry and meanwhile, Rabari Babubhai Malabhai, Rabari Bhikhabhai Malabhai, Rabari Dharmashibhai Khodabhai, Rabari Vishnubhai Amratbhai and Rabari Motibhai Odharbhai, etc. came there. As hot discussion started, the complainant went inside in his house to bring a stick and came out. At that time, out of the said persons, Chaudhary Popatbhai Shankarbhai gave a knife blow on the chest of Rabari Motibhai Odharbhai and Chaudhary Babubhai Shankarbhai gave a knife blow on the left part of the chest of Rabari Bhikhabhai Malabhai. Moreover, Sarpanch Chaudhary Popatbhai Shankarbhai started wielding knife in excitement and gave a knife blow on the left side of the navel of Rabari Babubhai Malabhai. Moreover, the said Chaudhary Popatbhai Shankarbhai also gave a knife blow on the left side of chest below arm pit of Rabari Dharamshibhai khodabhai. Moreover, said Chaudhary Popatbhai gave a knife blow between chest and belly of Rabari Vishnubhai Amratbhai standing nearby. Meanwhile, said Chaudhary Popatbhai Shankarbhai, while wielding knife in his hand, also gave knife blow below the navel on the belly of Thakor Mahendraji Nathaji of his village who was passing from the said place. Moreover, the other four persons accompanying in the jeep were also having knives.