SHARDULSINH CHHATRASINH RAJ Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these criminal appeals arise out of the judgment and order dated 26. 2. 2003 rendered by the learned Additional Sessions Judge, Fast Track Court No. 2, Bharuch, in Sessions Case No. 150/1999. The learned Additional Sessions Judge, by virtue of the impugned judgment and order, recorded conviction of the present appellant, who was original accused No. 2 in the aforesaid Sessions Case, for the commission of the offence punishable under Section 304 Part-I of the Indian Penal Code and sentenced him to undergo R. I for ten years and to pay a fine of Rs. 3000/-, in default of payment of fine, to undergo imprisonment for six months. The learned trial Judge acquitted the appellant for the offence punishable under Section 302 IPC.

(2.) THE appellant-accused has challenged the legality and validity of his conviction in Criminal Appeal No. 579/2003. The State of Gujarat has challenged the acquittal of the appellant herein for the offence punishable under Section 302 IPC in Criminal Appeal No. 701/2003.

(3.) THE prosecution case, in nutshell, is that the incident took place at about 12. 00 O'clock in the midnight on 27. 3. 1999, in the outskirts of village Asnera, Taluka : Amod. The present appellant and co. accused Chhatrasinh Shankersinh Raj, who died during the pendency of the trial, suspected that deceased Gemalsinh used to trespass into their agricultural field and cut the cotton plants and thereby used to cause damage. At the time and date of the incident, both the accused were in their field and when they saw deceased Gemalsinh, deceased accused Chhatrasinh opened fire from his revolver and the present appellant-accused inflicted stick blows on the head of deceased Gemalsinh. It is the case of the prosecution that the incident occurred on account of prior conspiracy hatched by both the accused to commit murder of the deceased. Chhatrasinh Nansinh Raj, who is the younger brother of the deceased, lodged FIR against both the accused persons, i. e. present appellant and deceased accused Chhatrasinh Shankersinh Raj, with Amod Police Station, which came to be registered. The investigation was commenced, statements of material witnesses were recorded, necessary panchnamas were drawn in presence of panchas and dead body of the deceased was sent to hospital for post-mortem examination. After receipt of the post-mortem report and the report from F. S. L, charge-sheet came to be filed in the Court of learned J. M. F. C. Amod for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code and Section 25 (1) (c) of the Arms Act. Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Bharuch, where it was registered as Sessions Case No. 150/1999.