ABHUBHAI FATEHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . Whether the appellant, original accused No.1, is guilty of man-slaughter and if yes, whether he is liable to be punished under Sec. 302 or under Sec. 304 of the Indian Penal Code (I.P.C.), in the light of the appreciation of the prosecution evidence and the defence propounded in the further statement under Sec. 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and what should be the quantum of sentence if the guilt is established, are some of the important questions, which have surfaced in this appeal under Sec. 374(2) of the Cr.P.C. at the instance of the appellant-original accused No. 1 (henceforth accused), questioning the legality and validity of the conviction and sentence under Sec. 302 of the I.P.C. recorded by the learned Additional Sessions Judge, Banaskantha, at Palanpur on 31-3-1992 in Sessions Case No. 1 of 1991.

(2.) A conspectus of a few material facts giving rise to the appeal may be narrated, at the outset. The prosecution case has been that on 16-9-1990, at about 8.00 a.m. one Bhanji Ramji, father-in-law of prosecution witness 5 Hirji Manji had died, at village Ratda. Therefore, prosecution witness No. 5, the complainant Bhikha Bechar and some other persons had gone to village Godalwada. After attending the after-death ceremonies, they were returning home. Enroute, when they reached near a field before going back home, at about 12.00 noon, the deceased whose field is adjoining to the field of the accused found that some of the tree plantations had been removed and damaged. Therefore, deceased asked original accused No. 3, brother of accused Abhu, as to why the tree plantations in his field were damaged. In reply to that, original accused No. 3, Dhola, stated that the plants had been cut off by them. In the meantime, original accused No. 2, Laxman and original accused No. 3, Dhola, embraced the deceased from behind. Original accused No. 3, Dhola, who was armed with a small hatchet which means a scythe fixed to the end of long bamboo which is popularly known and colloquially identified as "vansi" aimed at the deceased in an attempt to assault him, which came to be warded off by P.W. 5, Hirji Manji, who is the father-inlaw of accused Laxman, as a result of which, he sustained injuries on the thumb of his right hand.

(3.) Deceased Bhikha Ramji, Bhikha Bechar, Hirji Manji and other persons, then, went to their residence. It was decided by them to lodge a complaint about the incident. Thereafter, deceased and the complainant Bhikha Bechar and P.W. 5, Hirji Manji came to the outskirts of their village as they intended to go to the Police station for lodging the complaint. Original accused No. 2, Laxman and original accused No. 3 Dhula, also came there near the Neem tree, at the outskirts of the village around 12.30 p.m. on the say day. It is also the prosecution case that original accused No. 1, Abhu Fata, all of a sudden came with naked knife and landed a stab blow on the chest of deceased Bhikha Ramji which culminated into his death.