STATE OF GUJARAT Vs. PURIYA @ PARSOTTAM NATVARBHAI BISOI

JUDGEMENT

(1.) Both these criminal appeals have been preferred by the appellant­State of Gujarat. Criminal Appeal No.773/2000 has been preferred under Section­377 of the Code of Criminal Procedure, 1973, for enhancement of the sentence awarded to respondent No.4, Puriya alias Parsottam Natvarbhai Bisoi under Section­304 Part­II of the Indian Penal Code, 1860 ("IPC", for short), by the Court of learned Additional Sessions Judge, Surat, in Sessions Case No.35/1998. Criminal Appeal No.774/2000 has been filed under Section­378(1) (3) of the Code of Criminal Procedure, 1973, challenging the very same judgment and order of acquittal dated 16.06.2000, passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.35/1998, whereby original accused No.1­Munna Panda Bavari Panda, original accused No.2­Sania Bisoi Natvar Bisoi, original accused No.3­Babubhai Nathubhai Pradhan and original accused No.4­Puriya alias Parsottam Natvarbhai Bisoi have been acquitted of the offence under Section­302 of the IPC. The judgment under challenge being the same, both the appeals have been heard together and are being decided by a common judgment.

(2.) The case of the prosecution is as follows. 2.1 On 10.06.1997, between 10.30 p.m. to 11.00 p.m., Vijay Banvasi Sahu, who is the complainant as also the injured witness, was working on the upper­storey of a factory known as "Aashish Textiles". His brother Santosh (the deceased) was operating a machine on the ground floor of the same factory when the complainant heard shouts like "Santosh ko le jate hai" (They are taking Santosh). The complainant rushed downstairs and saw the three brothers, Puriya alias Parsottam Natvarbhai Bisoi, accused No.4 (hereinafter referred to as "Puriya"), Juriya Bisoi (who has been shown as absconding accused in the chargesheet and has not been tried along with the present accused) and Sania Bisoi, accused No.2, dragging the deceased outside. Puriya had a sword in his hand, Juriya also had a sword in his hand and Sania had a piece of wood in his hand. The three brothers were accompanied by four other persons from their village. Accused No.4 gave a blow with the sword on the head of the deceased. Juriya also hit the deceased with the sword on his head. In addition, Juriya gave a sword blow on the left shoulder of the deceased and the other persons started beating the deceased with pieces of wood. The deceased fell down and the complainant rushed to his aid. Accused No.4 and the absconding accused gave sword blows to the complainant on his head and left hand. When the complainant went to rescue his brother, the accused persons fled away. After some time Suraj, another brother of the deceased and the complainant, came there. The complainant informed Suraj regarding the incident and they both went out and saw that the deceased was lying dead, on the road. The complainant then lodged a complaint at Katargam Police Station (Exhibit­44). Pursuant thereto, the Investigating Officer carried out the Inquest Panchnama of the deceased and sent the body to the Civil Hospital for the Post Mortem. The Panchnama of the place of incident was also drawn. The arrest Panchnamas of the accused persons were made and the accused persons (except Juriya) were arrested from different places. The sword was recovered from the hut of the accused. There was also a recovery of the shirt of accused No.2 which contained blood­stains. The recovery Panchnamas of the sword and shirt were made and the said articles were sent for examination to the Forensic Science Laboratory. The statements of the concerned persons were recorded and after the investigation was over, the chargesheet against the accused persons was filed in the Court of the learned Judicial Magistrate, First Class, who committed the case to the Sessions Court, for trial. 2.2 Nineteen witnesses were examined by the prosecution and twenty­eight documents were exhibited. The charge under Sections­302, 324, 143, 147, 148 and 114 of the IPC, was framed against the accused persons. After appreciation of the oral and documentary evidence, the Trial Court convicted accused No.4, Puriya, under Section­304 Part­II and 324 of the IPC and sentenced him to five years rigorous imprisonment and fine of Rs.500/­, in default of which he was to undergo two months simple imprisonment. The learned Judge acquitted accused No.4 for the offence under Section­302 of the IPC. Accused Nos.1, 2 and 3 were acquitted of the charge under Section­302 of the IPC by giving them the benefit of doubt. Aggrieved by the above judgment and order, the State Government is before this Court.

(3.) Mr.J.K.Shah, learned Additional Public Prosecutor has submitted that the judgment and order of sentence passed by the learned Judge is highly disproportionate and inadequate, looking to the nature of the offence committed by the accused persons and the manner in which it was committed, therefore, the sentence in all cases is required to be enhanced.