SANDIPBHAI BHANUBHAI MECKWAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellants are the original accused Nos. 1 and 2. By impugned judgement and order dated 28. 2. 2005 passed by learned Joint District Judge, Anand, in Sessions Case No. 104/2004, the appellant original accused no. 1 was convicted for offence punishable under Section 307 of the Indian Penal Code and Section 135 of the Bombay Police Act and sentenced to rigorous imprisonment of seven years and simple imprisonment of two years respectively. Fine was also imposed. Appellant No. 2 accused No. 2 was convicted for offence punishable under Section 325 of the Indian Penal Code and Section 135 of the Bombay Police Act and sentenced to simple imprisonment of five years and two years respectively. Fine was also imposed on him.

(2.) AS per charge exh. 4, it was alleged against the appellants that they along with other accused i. e. accused Nos. 3 and 4 had assaulted complainant Jayantibhai-PW9 and his brother Mahendrabhai-PW10 on 4. 9. 2001 near their house. Accused No. 1 Sandeep had given several knife blows to Mahendrabhai on his chest, on his stomach and on his back etc. Budha had given stick blow to complainant Jayantibhai causing fracture on two fingers of his right hand. The other accused had pushed the complainant and abused him. All the accused were therefore, charged with offences punishable under Sections 307, 325, 504 read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. Accused Nos. 3 and 4 were acquitted. Accused Nos. 1 and 2 are therefore, before this Court in the present appeal.

(3.) COMPLAINANT Jayantibhai Peterbhai Makwan-PW9 (exh. 32) stated in his deposition that he along with his brother Mahendrabhai were residing in Khristi Mohalla. On 4. 9. 2001, in the afternoon, he was sleeping at his house. At that time two people had come inquiring about him. His sister-in-law Pushpaben therefore, had come out of the house and woken him since the unknown people were looking for him. When he came out, the visitors asked for liquor. He told them that he does not do this business and inquired from them as to who gave his name. The visitors gave the name of Budha accused no. 2 to whom the witness identified before the Court. The visitors and witness thereupon went to the Pan shop of Budha. The witness and Budha therefore, had verbal altercation. The issues were however, settled. Thereafter, at about 8:15 at night when he, his brother Mahendrabhai and his wife Pushpaben were preparing to have dinner, accused No. 1 Sandeep had come to their house using foul language along with Budha accused no. 2. His brother Mahendrabhai had therefore, come out of the house and tried to pacify Sandeep. He had also come out of his house at which time, Sandeep got excited, took out a knife from his pocket and gave blows to Mahendrabhai. When he tried to intervene, Budha gave a stick blow which he received on his hand breaking his finger. The other accused were also instigating Sandeep and Budha. Mahendrabhai had fallen down bleeding profusely. He saw that he had got two knife blows on the left side of chest, one on the abdomen and one on the side of the shoulder. The accused had thereafter, run away. He and Pushpa with help of others had carried Mahendrabhai in a Rickshaw to Karamsad Shri Krishna Hospital. To the Doctor he has given history of Mahendrabhai being stabbed by Sandeep with knife. Mahendrabhai was rushed to the operation theater. Doctor had told him that Mahendrabhai's kidney had got damaged with stab wound and it shall have to be removed. Mahendrabhai's kidney was removed. He had filed complaint with the police. He identified the Muddamal articles knife and stick which according to him were used in the commission of offence. He also identified all the accused before the Court. 3. 1 In the cross examination, he stated that the houses of the accused are situated at a short distance from the house of Mahendrabhai. He agreed that Mahendrabhai and accused No. 1 Sandeep had quarrel about a dog. He denied that appellant was arrested in connection with the incident on 4. 9. 2001. He however, agreed that Sandeep and Budha were also under treatment at Shri Krishna Hospital the same night. He however, did not know whether Budha had received fracture on his elbow.