PRAVINKUMAR ISHWARLALL SUTARIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) What is assailed in the present appeal is the judgment and order dated 23/01/2001 passed by the learned Sessions Judge, Bharuch in Sessions Case No. 63 of 1991, whereby, while acquitting the original accused Nos. 4 and 5 from all the charges levelled against them, the present appellants - original accused Nos. 1, 2 and 3 held to be guilty for the offence punishable under Sections 304 , Part-II r/w. Section 34 , and Sections 452 , 326 and 149 r/w. Section 34 of the Indian Penal Code, 1860 (for brevity, 'the IPC ') and sentenced as under: Offence Sentence 304 Rigorous Imprisonment (RI) for 05 years and fine of (Part-II) IPC Rs.150/- each. 326 r/w. 34 IPC RI for 03 years and fine of Rs.100/- each. 452 IPC RI for 05 years and fine of Rs.100/- each. 149 IPC No separate sentence was imposed but all the accused were ordered to pay Rs.50/- as they found members of the unlawful assembly. In default to pay fine, further imprisonment for one month, for each offence. All the sentences were to run concurrently.

(2.) The facts of the prosecution, as are uncurtained, on 25/11/1989 at about 11:00 a.m., a mob of 8- 10 people rushed to the home of complainant - Sikander Chhatrasinh Raj in which, Vijay Tapori, resident of Fata Talav, Vinod Bhau, resident of Gayatrinagar and one Pappu, who was residing adjacent to the house of the complainant and other persons to whom the complainant did not know by name but can recognize by face, where there. Vijay Tapori, who was possessing a big knife and Vinod Bhau, who was possessing a sword, barged into the house of the complainant thrashing the doors, uttering the abuses. At the relevant time, the father of the complainant, his mother and his niece (bhanej) Nilofer were there at home. They went away after about 10-15 minutes along with the people in the mob asking to set the home on fire. The complainant rushed to his home, where he found his father lying dead in the middle portion of the house, whereas, his mother and brother had suffered severe sword injuries. His brother's three fingers of right hand had also cut off and they all were bleeding. When, the complainant was taking his mother into the house from the veranda, the aforesaid mob again rushed from Saibaba Society and hence, the complainant being scared ran away from there. His niece Nilofer had also gone away somewhere. It was the case of the complainant that keeping grudge of old conflict with Vijay Tapori and Pappu during Navratri festival, Vijay Tapori, Vinod Bhau and Pappu had committed such a crime, for which, a complaint came to be lodged against the original accused for the offences punishable under Sections 302 , 307 , 147 , 148 , 149 , 452 , 504 and 506(2) of the IPC and Section 135 of the Bombay Police Act.

(3.) I have heard Mr. Vijay Patel, the learned advocate appearing on behalf of the appellants as well as Mr. K. L. Pandya, the learned Additional Public Prosecutor for the respondent - State.