VESTABHAI MATABHAI DAMOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals arise out of the same incident and involve common questions of law and facts and hence, they are being decided by this common judgment.

(2.) Criminal Appeal No.902 of 2002 is preferred by the appellants - original accused against the judgment and order dated 23.10.2002 passed by learned Additional Sessions Judge, Fast Track Court, Panchmahal at Godhra in Sessions Case No.200 of 2002 whereby the original accused Nos.1, 2 and 3 were convicted for the offence under section 304 of the Indian Penal Code and sentenced them to undergo five years rigorous imprisonment and to pay fine of Rs. 1000/-, in default, to undergo one month simple imprisonment and for the offence under section 135 of Bombay Police Act, the said original accused were convicted and sentenced to undergo one month simple imprisonment and to pay fine of Rs. 100/-, in default, to undergo seven days simple imprisonment, whereas original accused Nos.4 and 5 were convicted for the offence under section 326 of the IPC and sentenced them to undergo three years rigorous imprisonment and to pay fine of Rs. 500/-, in default, to undergo one month simple imprisonment and for the offence under section 135 of the Bombay Police Act, the accused were convicted and sentenced to undergo one month simple imprisonment and to fine of Rs. 100/-, in default, to undergo seven days simple imprisonment. Whereas, the appellant State of Gujarat has preferred Criminal Appeal No.1540 of 2006 under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 15.9.2005 rendered by learned Presiding Officer, Fast Track Court, Dahod in Sessions Case No.351 of 2004 (new) (old Sessions Case No.178 of 2004) whereby the original accused - Ramsubhai Haklabhai Machhar has been acquitted of the charges levelled against him.

(3.) The short facts giving rise to the present appeal are that on 28.3.2002 as there was festival of Holi, the complainant along with Jayantibhai Ramsubhai, Shamjibhai Fatabhai and Valsing Fatabhai have gone to the place of Holi at village Dhadeli and at the place of Holi, other persons of village named Vestabhai Matabhai, Ramsubhai Haklabhai, Mansukhbhai Haklabhai, Chhaganbhai Haklabhai, Matabhai Haklabhai, Dalubhai Vestabhai and others were also present. It is further case of the prosecution that at the time of Holi, all the persons from the complainant side and from accused side were singing songs of Holi and during that period at about 9.30 hours Vestabhai and others came to the complainant side and by giving filthy abuses to the complainant told "why are you singing song relating to our caste" and thereby raised dispute. Thereafter, all the accused persons in abetment of each other assaulted the complainant and prosecution witnesses with the deadly weapons like swords and axe and thereby caused death of Samjibhai Matabhai and grievous hurt over the person of Lalsinh and thereby the accused committed the offence under sections 147, 148, 149, 504, 302, 326 of Indian Penal Code and section 135 of the Bombay Police Act. Therefore, the complainant lodged the complaint vide CR No.I - 61 of 2002 before Fatehpura Police Station.