SHANABHAI JAMALBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CRIMINAL Appeal No. 222 of 1999 under Sec. 374 of the Code of Criminal Procedure (`the Code' for short) has been filed by the appellants-original accused Nos. 1 to 4 and Criminal Appeal No. 245 of 1999 under Sec. 374 of the Code has been filed by the appellant-original accused no. 5, who have been convicted to suffer R. I. for life and to pay a fine of Rs. 500/- each, in default, to suffer S. I. for 6 months for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code, to suffer R. I. for one year and to pay a fine of Rs. 250/- each, in default, to suffer S. I. for 1 month for the offence punishable under Sections 143, 147, 148 read with Section 149 of the Indian Penal Code and to suffer R. I. for one year and to pay a fine of Rs. 500/- each, in default, to suffer S. I. for 1 month for the offence punishable under Sections 342 and 323 of the Indian Penal Code vide Judgment and Order dated 12th February, 1999 passed by the Learned Addl. Sessions Judge, Nadiad in Sessions Case No. 301 of 1998. However, the Court below acquitted the present appellants-original accused nos. 1 to 5 for the offence under Section 504 read with Section 149 of the Indian Penal Code and original accused nos. 6 to 11 for the offence under Sections, 143, 147, 148, 323, 342, 302, 506 read with Sections 149 and 34 of the Indian Penal Code. However, the State has not preferred any acquittal appeal against the acquittal order and it becomes final.

(2.) THE case of the prosecution in short is that on the day of incident, when the complainant and the deceased were passing through very near to the house of the accused nos. 1 and 2 for going to their field, the accused started abusing them and asked as to why they are passing through our house. At that time, the deceased replied that that is the way to go to his field and if the accused would not like, in future, he will not pass through that way and, thereafter, both had gone to their agricultural field. However, the accused nos. 1 and 2 followed them and, thereafter, they dragged the deceased to the house of the accused no. 1 from his field. They then called their friends and relatives and told that now the victim has become strong person and, therefore, today, we will kill him. At that time, the accused no. 1 armed with iron rod, the accused no. 2 armed with stick, accused no. 3 armed with stick, accused nos. 4 and 5 armed with iron road and other accused persons (original accused nos. 6 to 11) armed with deadly weapons after making an unlawful assembly assaulted the deceased. On raising screams, the wife, mother and brother of the deceased came there and tried to save the deceased. At that time, the accused nos. 1 and 2 beat the mother-in-law of the complainant by iron rod and stick respectively and as a result of that, she received severe injuries and they left the scene of offence. Thereafter, some body informed the Police. In pursuance of that, the Police reached the scene of offence and took the deceased to J. B. Mehta Hospital, Kapadwanj for treatment in a Police jeep, but the deceased succumbed to the injuries on the way. Accordingly, the complaint came to be filed with Kapadwanj Police Station, which came to be registered as Kapadwanj Police Station I-C. R. No. 110/1998 under Section 302 etc. of the Indian Penal Code. Thereafter, the investigation has been handed over to P. S. I. of Kapadwanj Police Station, Shri H. K. Rana (P. W. No. 11, Exh. 42 ). In pursuance of that, he started further investigation. He also prepared inquest panchnama (Exh. 32) in presence of panchas, visited the scene of offence and recorded the statements of various witnesses. On 26. 07. 1998, he drew the panchnama of scene of offence (Exh. 31) in the presence of panchas. During the course of investigation, muddamal was seized by drawing panchnama to that effect and tried to catch the accused. On the very next day, the accused persons were found in the sim of Susaniya village and, thereafter, they were taken to Police Station and arrested by preparing panchnama to that effect. The accused persons produced the muddamal weapons used by them in the incident and same were seized by preparing panchanam to that effect along with the clothes worn by the deceased at the time of incident produced by the Police Constable and sent the same along with other muddamal to FSL. On receiving the postmortem note and other reports, same were kept in investigation file. Upon completion of investigation, he submitted the charge sheet against the accused before the Learned Learned Judicial Magistrate, First Class, Kapadwanj, which came to be registered as Criminal Case No. 1139/1998 for the offence under Sections 143, 147, 148, 149, 342, 323, 302, 504 read with Section 34 of the Indian Penal Code.

(3.) AS the offence alleged against the accused was exclusively triable by the Court of Sessions, the learned Learned Judicial Magistrate, First Class, Kapadwanj committed the case to the Court of Sessions at Nadiad where it was numbered as Sessions Case No. 301 of 1998 and transferred to learned Addl. Sessions Judge, Nadiad for trial. The learned Addl. Sessions Judge framed charge against the accused at Exh. 3. The accused pleaded not guilty to the charge and claimed to be tried.