VIKRAMBHAI @ BHAKO KESHUBHAI BAMBHANIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application under Section 389(1) of the Code of Criminal Procedure, 1973 ("the Code"), for suspension of sentence pending the decision of the Criminal Appeal has been preferred by the applicants, who are the original accused Nos.1 to 3, in Sessions Case No.187 of 2015 (Old Sessions Case No.44 of 2012). Original accused Nos.4 and 5 are not before this Court. By the judgment and order dated 24.09.2015, the applicants have been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 ("IPC") and sentenced to undergo life imprisonment.

(2.) Briefly stated, the facts of the prosecution case, insofar as it relates to the present applicants are that on 07.11.2011, at about 9:30 PM, the deceased Ranvirsinh Dilipsinh and one Viral alias Tino Jitendrabhai Joshi, had gone to the "Paan" shop of applicant No.1 at Gaushala Complex. At that point of time, Pravin (accused No.5) (who is not party to the present application) was sitting at the "Paan" shop in the absence of applicant No.1. Pravin asked the deceased and Viral to pay the amount for the "Paan" and "Maava" they had consumed, as they were leaving the shop. The deceased paid the amount and asked for the return of the change. An exchange of words took place between the deceased and Viral on one hand and Pravin on the other. The deceased and Viral proceeded towards the house of Pravin in order to persuade him that they would pay the amount later, but Pravin did not agree and started abusing them. It is the case of the prosecution that when they reached near the house of Pravin, an altercation took place in loud tones. Apprehending that the quarrel would take a serious turn, Viral telephoned Hardipsinh Dilipsinh Vala, brother of the deceased, informing him that there was a quarrel and he should come immediately near Gorkhi Darwaja. Hardipsinh (the first informant) reached the spot on his motorcycle and noticed that all the accused persons were indiscriminately beating the deceased and abusing him as well. Viral and Hardipsinh intervened to separate the deceased and the accused persons. Applicant No.1, who was armed with a Dharia, inflicted a blow with the said weapon on the middle of the forehead of the deceased, and applicants Nos.2 and 3 inflicted pipe blows on the back and head of the deceased, which resulted in bleeding. It is further the case of the prosecution that applicant No.1 attempted to give a Dharia blow on the chest of the deceased but it resulted into an injury on the left shoulder. Similarly, another blow of the Dharia landed on the left shoulder of the deceased. Applicant No.1 is stated to have inflicted two other blows resulting in an injury on the elbow of the left arm of the deceased. Another Dharia blow is stated to have been inflicted on the waist region of the deceased by applicant No.1. Hardipsinh and Viral intervened to save the deceased. Viral received a Dharia blow from applicant No.1 on the back of his head. Applicant No.2 gave a blow with the iron pipe to Viral on the right wrist. When the first informant tried to intervene to save Viral, accused No.4 gave a stick blow on his left shoulder. Applicant No.3 is also stated to have inflicted a pipe blow on the waist of the first informant. Apprehending more injuries, Viral took the motorcycle of the first informant and left the place of incident. He went to the dispensary of Dr.Baldaniya who treated him and called him for an X-ray on the next day. Thereafter, Viral went to the Government Hospital to see the deceased. There he informed the first informant regarding the cause of the quarrel and returned his motorcycle. While Viral was informing the first informant regarding the genesis of the quarrel, the Medical Officer told the first informant to take the deceased to Bhavnagar for further treatment. Hence, the deceased was taken in an ambulance for further treatment to Bhavnagar. The first informant also took treatment at Sterling Hospital, Bhavnagar and, thereafter, went to the Talaja Police Station. The deceased, however, succumbed to his injuries. Thereafter, the first informant lodged the FIR and investigation commenced.

(3.) The case was committed to the Sessions Court and the Charge was framed. After a full-fledged trial, the Trial Court passed the abovementioned judgment and order convicting the applicants herein for the offence punishable under Section 302 of the IPC. Accused No.4 was convicted for the offences punishable under Section 323, 324 and 504 of the Code and sentenced to undergo rigorous imprisonment for three years. Accused No.5 was acquitted of all the charges by giving him the benefit of doubt.