DEEPAK SURESH DHAKATE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction and sentence dated 27. 10. 1993 passed by the learned Addl. Sessions Judge, Mirzapur, Ahmedabad (Rural) at Ahmedabad in Sessions Case No. 147 of 1991, by which the learned Sessions Judge convicted the present appellant for the offences punishable under section 307 and he was sentenced to suffer six years Rigorous Imprisonment with fine of Rs. 2,000/-, in default, one year's simple imprisonment.

(2.) THE present appellant-original accused No. 1 and other 3 accused persons were charge sheeted for offences punishable under sections 307, 323, 504 and 114 of IPC and section 135 (1) of the Bombay Police Act by Adalaj police Station. After submission of the charge sheet, the learned Addl. Sessions Judge, Ahmedabad Rural framed charge at Exh. 9 against the accused persons. At the end of the trial, the present appellant-original accused no. 1 was convicted for offences under section 307 and he was sentenced to suffer six years' rigorous imprisonment with fine of Rs. 2,000/-, in default, one year's simple imprisonment. The trial court has also passed order that the accused is also entitled to benefit of set off under section 428 of the Criminal Procedure Code. As far as original accused No. 2 to 4 are concerned, they were acquitted of the charges levelled against them. The State has not preferred any acquittal appeal. But the present appellant-accused preferred appeal against the said judgment and order before this court. The facts of the case of the prosecution in brief are as under:

(3.) THE incident in question took place on 6. 4. 1991 at about 21. 30 hrs. One Nilam Shukhlal Chauhan was residing with her father Shukhlal Chauhan in block No. A/14 of ONGC colony. Shukhlal was working in ONGC. Sister of Nilam, Martina got married with one Gragory Solomon. It is alleged that on the day of the incident, at about 8. 30 p. m. , Gragory and his brother Philips came to the house of Nilam to return the iron which he had taken from the house of Nilam. After having tea, when Philips was about to leave the house, Nilam told him that one person named Deepak (present appellant) was teasing and harrassing her and also insisting to marry him. He also tries to talk to her whenever she passes the way. Nilam thus, told Philips to scold Deepak in this regard. On saying so by Nilam, Philips asked her to show the house of the accused Deepak. So, Nilam took Philips to the place where the house of the accused Deepak situated. Her brother Pavankumar also accompanied them to the house of Deepak. When they reached near the house of accused no. 1, accused No. 1 was standing near the lamp post. Nilam showed them where Deepak was standing. It is also alleged that Gragory asked accused No. 1 why he harasses his sister-in-law. On asking this question, accused no. 1 got angry and provoked and at that time accused No. 2,3 and 4 also reached and accused no. 1 to 3 started beating Gragory. Philips came to rescue of his brother and at that time, accused no. 3 and 4 caught him and gave kick blow and fist blow on Philips. It is also alleged that during the scuffle, accused 3 pushed down Gragory and accused no. 1 took out knife from his pocket and gave knife blows on abdomen and on chest of Gragory. He was profusely bleeding and due to the hue and cry, large number of people gathered there and accused had run away from the spot. Thereupon, Pavankumar called a rickshaw and Gagory and Philips were removed to Civil Hospital. Philips lodged a complaint Exh. 26 before police and on the basis of the complaint, offence was registered and Investigating Officer, after drawing panchnama of the scene of offence, recorded statement of relevant witnesses. During the investigation, blood-stained clothes worn by Gragory were recovered by drawing panchnama and also made arrangement for recording dying declaration of the injured Gragory by the Executive Magistrate. Accused No. 1 also lodged complaint in Adalaj police station before the Investigating Officer, PSI, Ramaji Devaji Chavda alleging that Philips Solomon and Gragory had beaten him and offence under section 323 of IPC was registered and panchnama of accused no. 1 to 3 was drawn. During the investigation, medical certificate of injured was obtained and after drawing recovery panchnama, relevant muddamal weapons were sent for analysis to the FSL and also collected FSL report and thereafter, on 30. 6. 1991, charge sheet was filed for the above referred offences.