KOLI DHARAMSHI BHIMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE appeals arise from the judgment & order passed by the Learned Addl. Sessions Judge, Bhavnagar dated 25/4/1986 in Sessions Case No. 149 of 1985, whereunder, the learned Judge has convicted original accused no.1 Koli Dharamshi Bhima under section 304(2) and passed sentence of RI for 2 years and fine of Rs.500/ -, in default RI for 3 months. Learned trial Judge acquitted original accused No.2 Koli Bhima Ravjibhai. Against the same order of learned Sessions Judge, Accused No.1 Koli, Dharamshi Bhima preferred present appeal. The State also preferred Criminal Appeal No. 971 of 1986 for enhancement of sentence against Koli Dharamshi Bhima and the State also preferred Criminal Appeal No. 972 of 1986 against Koli Dharamshi Bhima and Koli Bhima Ravjibhai against their acquittal.

(2.) THE prosecution case in brief is that on 12/8/1985 at around 9.30 to 10.00 hrs in the morning the complainant Vajubha Ramsing was at his house at village Mota Khorda. There one boy (son of village barber) came and told him that near the shop Gor, Mahavirsinh and Dharamshi Bhima are quarreling. After hearing this he went to the shop of Gor and there he met one Pratapsinh Mangalsinh, who was carrying Mahavirsinh with him. Mahavirsinh was injured and blood was oozing out of his body. He asked Mahavirsinh what has happened to him. Mahavirsinh could not reply and he asked Prabhatsinh and he has told to the complainant that Vajubha Ramsinh that Dharamshi Bhima has given knife blow to Mahavirsinh and Mahavirsinh was caught by Bhima Ravji. According to Prabhatsinh he had seen the incident and he tried to save Mahavirsinh. At that time the accused had ran away. Prabhatsinh also told to the complainant hat other persons came there and Dharamshi Bhima and Bhima Ravji ran away. Complainant and Prabhatsinh,Karansinh and other persons took Mahavirsinh to Bhavnagar Governmental hospital in a bus where doctor examined Mahavirsinh. The doctor declared that Mahavirsinh as dead. The dispute between the deceased and Dharamsinh Bhima was there. One police case was going on between them and therefore Dharamsinh Bhima and Bhima Ravji had given knife blow to Mahavirsinh. The complaint was lodged in police station. Therefore police took statements of different persons, panchnama was also carried out, charge sheet was filed under section 302 of Indian Penal Code before learned JMFC at Ghogha and on 5/12/1985 case was committed to Sessions Court and the trial begun.

(3.) WE have heard learned Addl. Public Prosecutor Mr. Bhate for the State and learned advocate Mr. A.D. Shah for the accused. We have also gone through the records and proceedings and the documentary evidences. We have heard in detailed the submissions on behalf of the State as well as the arguments advanced on behalf of the accused. Learned APP has submitted that the prosecution has examined PW -1 at exhibit -6. Dr. Bharatkumar Jethalal Somani who says in his deposition that there were 7 external injuries and two internal injuries. Postmortem was carried out and he opined that injuries are possible with the muddamal knife. In his cross examination he said that injury no. 1 to 5 are simple injuries and injuries no. 7 and 8 are also simple and death may not be possible. Only injury no.6 is serious in which death may be possible he produced postmortem report exhibit -7.