STATE OF GUJARAT Vs. CHUVARIYA KOLI DHIRU DEVSHI

JUDGEMENT

(1.) The challenge in this appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the Code") is to the judgment and order dated 31.03.1994, passed by the learned Sessions Judge, Surendranagar, in Sessions Case No.58/1993, whereby both the respondents original accused have been acquitted of the offence punishable under Section 302 read with Section 114 of the Indian Penal Code, 1860 (" IPC ").

(2.) The case of the prosecution, in brief, is that on 04.01.1993, between 10:00 to 11:00 AM or thereabouts, the respondents inflicted successive blows with a Dharia (scythe) and Choriyu (a knife like implement) on Miyana Rasulbhai Namari (the deceased) in a ditch on the road near the Hotel coming from Halvad to Kedariya village and caused his death. The reason for the murder is stated to be that the deceased demanded money allegedly owed by respondent No.1 which led to an altercation. Respondent No.1 is stated to have taken out a Dharia from his house and run after the deceased. Respondent No.2, acting in aid of respondent No.1, accosted the deceased and stood in the direction towards which the deceased was running with a Choriyu in his hand. Thereafter, both the respondents ran after the deceased, who fell into a ditch while running and fractured both his legs. The respondents allegedly gave successive blows to the deceased with their weapons at the place where he had fallen, thereby committing his murder.

(3.) It is further the case of the prosecution that after the incident, respondent No.1 himself went to Halvad Police Station and stated that he was assaulted and slapped by the deceased. A non cognizable complaint was registered in this regard. According to the prosecution, on the same day, a declaration is alleged to have been made by respondent No.1 regarding the cognizable offence of causing the death of the deceased by him with a Dharia, which was registered as an FIR. Thus, according to the prosecution, respondent No.1 is the accused and also the first informant. On the basis of this declaration, FIR No.2/1993 was registered at the Halvad Police Station for the offence punishable under Section 302 read with Section 34 IPC . As sufficient evidence was found against both the respondents, a Chargesheet was filed in the Court of learned Judicial Magistrate, First Class, Halvad. The case being triable only by a Court of Sessions, the learned Magistrate committed it to the Sessions Court, where the Charge at Ex.3 was framed against the respondents. It was read over and explained to the respondents who denied their guilt and claimed to be tried. Hence, the case was put to trial. In support of its case, the prosecution examined fifteen witnesses and produced documentary evidence.