SIDDRAJBHAI SOMABHAI SUVERA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals arise out of a common judgement dated 08.11.2012 rendered by the learned Additional Sessions Judge, Himmatnagar, in Sessions Case No. 59 of 2009. The learned Sessions Judge was pleased to convict both these accused for offences punishable under section 302 read with section 114 of IPC and sentenced to life imprisonment. One may record that there were as many as eight accused who were tried under the said sessions case and the offences alleged against them included those under sections 143, 147, 148 and 149 of the Indian Penal Code. However, except for the accused Nos. 1 and 4, the rest were acquitted. The charge of formation of unlawful assembly and related other offences failed. Criminal Appeal No. 2044 of 2012 is filed by Siddhrajbhai Somabhai Suvera, original accused No.4 and Criminal Appeal No. 456 of 2013 by Maganbhai Khatubhai Kharadi, original accused No.1 challenging the said judgement.

(2.) Briefly stated the prosecution version was that deceased Babubhai and the accused had longstanding disputes and feuds. Keeping grudge about such past instances, on 18.11.2008 in the morning hours at about 7:30, when the deceased was going for depositing the milk, the accused came there on two motorcycles armed with different weapons. They formed an unlawful assembly and assaulted the deceased with swords. Such attack was carried out by accused Nos. 1 and 4. The others instigated them. A charge was, therefore, framed at Exh 6 against all the accused for offences under sections 143, 147, 148, 149 of IPC and sections 302, 323, 506(2) read with section 114 of IPC. As noted, the charge against rest of the accused failed. Accused Nos. 1 and 4 alone were convicted for offence under section 302.

(3.) We may record, the gist of evidence. PW 3, Savitaben Babubhai Suvera, wife of the deceased, was an eyewitness and the first informant. She deposed that the incident took place on 18.11.2009 at 7:30 in the morning. Her husband had left for depositing milk in the dairy at Mota-Samera village. She and her daughter Shantaben had left for irrigating the wheat crop in their field. Near their field on the road between Mota-Samera and Kanthariya near the house of Nanjibhai Martaji Kharadi on two motorcycles these people arrived on. One of them was Maganbhai Khatubhai, accused No.1 with other and on the other motorcycle, it was Siddharajbhai Somabhai,accused No.4. Two more people Shamuben Somabhai, and Khatubhai Manjibhai were also present. She thus referred, in all, 08 persons who were on the side of the accused. She then stated that Maganbhai, accused No.1 had a sword who gave a blow on the head of her husband. Siddharajbhai, accused No.4 also had a sword, who hit him on the head near the left ear. Upon hearing the shouts of her husband, she and her daughter Shantaben came running. Sureshbhai Jivabhai Kharadi had also rushed there. Her husband was assaulted by these two accused. The others had surrounded him. Samjuben Nanjibhai, Ramjibhai Suvera and Vijendrasinh had also come. Vijendrasinh had called the ambulance. Her husband was taken to a Civil Hospital at Shamlaji, from there he was taken to Himmatnagar for further treatment and thereafter, to Ahmedabad Civil Hospital. She came back the next day and her FIR was registered at the Shamlaji Police Station. The quarrel was about a passage way to the field. After four to five days later, her husband died in the Civil Hospital, Ahmedabad. She identified the accused and the swords before the Court.