GANPATBHAI VIRAMBHAI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE two appeals arise out of the judgment and order dated 1t December 2000 passed by the learned Additional Sessions Judge, Deesa in Sessions Case No.88 of 1999. Criminal Appeal No.3 of 2001 is filed by the appellants - original accused Nos.1, 2 and 3 challenging their conviction under Section 302 of the Indian Penal Code whereas Criminal Appeal No.196 of 2001 is filed by the State against acquittal of accused Nos.4 to 8 for the offence under Sections 302, 147, 148, 149, 324, 323 of IPC and Section 135 of the Bombay Police Act. By the said judgment and order the learned Additional Sessions Judge imposed the following punishment : -

(2.) THE learned trial Judge has categorically found that there was no unlawful assembly and therefore acquitted accused Nos.4 to 8. These five accused persons who have been acquitted have been stated to be wielding sticks. The injuries found on the person of the deceased are not attributable to these accused persons. In that view of the matter, this Court is of the view that the acquittal recorded by the trial Court for accused Nos.4 to 8 cannot be doubted and cannot be held to be in any way perverse or not warranted by the facts of the case. In that view of the matter, Criminal Appeal No.196 of 2001 is filed by the State against acquittal of accused Nos.4 to 8 who have been only attributed with wielding sticks is rejected.

(3.) AS far as Criminal Appeal No.3 of 2001 filed by accused Nos.1 to 3 is concerned, out of three accused persons one accused No.1 - Ganpatbhai Virambhai Thakore was wielding sword, accused No.2 Rajubhai was wielding knife and accused No.3 Ganeshbhai was wielding Dharia. According to the eye witness, Rajubhai gave repeated blows. He was having knife. Though the Doctor in his deposition has stated that the injuries sustained by the deceased cannot be attributed to the weapons recovered, but, then it is always not necessary that the recovered weapon can be said to be the weapon which was used at the time of commission of the offence, because it is difficult to identify the weapon. In the facts and circumstances of the case, the learned counsel restricts his arguments only on the nature of the offence and in that background this Court is of the opinion that the nature of the offence as regards accused No.2 Rajubhai is concerned is definitely falling under Section 302 of the Indian Penal Code, because, he has not only caused fatal blow, but, repeated the blow. Hence, his intention of causing death cannot be doubted. Therefore, his conviction under Section 302 of IPC and consequent life imprisonment is not liable to be disturbed. The other two accused Ganpatbhai and Ganeshbhai have caused simple injuries. They have sufficiently remained behind the bars of around 8 -9 years. In that background, it would be appropriate if their conviction is altered from 302 IPC to 304 Part -I of IPC.