NARESH JANIMAL LOHANA SINDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In old Modikhana, Fateganj area of Baroda City, Joseph, Najrat and Daud, sons of Fulji were residing. Joseph has two sons namely, Ashok and Robin. Najrat has two sons named Ravikant and Timoti and Daud has two sons named Lajrat and Philip. Three sons of Fulji were residing on each storey of their house. Near about their house, one Naresh and Lalchand, two brothers, were residing, Naresh and Lalchand are Sindhis while Fulji's sons are Christians. In the said locality, most of the residents are Christians. At about 11 a.m. to 11.15 a.m. on 12/06/1990, ladies of both the houses had a quarrel on the question of throwing waste of mangoes. Joseph, PW 1, persuaded the mother of Naresh and Lalchand and requested her to go to her house. However, she was annoyed and she was pushed. Naresh and Lalchand who were standing there with their mother went in their house with their mother. Immediately, thereafter, both the brothers had got enraged and came out. Naresh had a knife which he drew out. As other members of the family of Fulji had gathered, Naresh gave a knife blow on Najrat. Other family members had tried to catch hold of him and Naresh started wielding knife which then injured Ashok, PW 2, Daud, PW 3 and Lajrat PW 5. Lalchand had an iron rod by which he injured Joseph, PW 1. Naresh then ran away and Lalchand was caught. Someone then telephoned the police, who reached at the scene of offence. After the arrival of police, all the injured were removed to hospital. Najrat being seriously injured succumbed to the injury in the hospital. Constable on duty one Udesing Chandrasinh informed the Sayaji Ganj Police Station on information received by him from Dr. A.N. Tharode as to this incident (Ex. 32) at about 12.10 p.m. On receipt of this information, offence was registered and PW 19 started investigation. Offence was registered against Naresh as accused No. 1 and Lalchand as accused No. 2 under Section 302 read with Section 34 as well as under Sections 307, 326, 323, 504 of Indian Penal Code and Section 135 of the Bombay Police Act.

(2.) On completion of investigation, both the accused were chargesheeted and on completion of trial, after hearing the parties, the learned Additional Sessions Judge convicted Naresh Jenimal Lohana, accused No. 1 under Section 302, 326 and 324 of the Indian Penal Code and sentenced him to undergo rigourous imprisonment for life by order dated 10/01/1991 in Sessions Case No. 115/90. The learned Addl. Sessions Judge recorded acquittal of the charges levelled against Lalchand Janimal Lohana, Naresh Janimal Lohana has filed Criminal Appeal No. 132/91 against the order of conviction and the State has filed Criminal Appeal No. 206/91 against the order of acquittal of Lalchand. As both the appeals arise from the same judgment and order, we propose to dispose of the same by this common judgment.

(3.) We will first deal with the conviction appeal. Learned counsel Mr. K.J. Shethna appearing for the appellant-accused has challenged the conviction on the ground that the learned Addl. Sessions Judge has erred in relying on the evidence of the prosecution witnesses who are parties and interested witnesses and are not corroborated by any independent evidence. He has challenged the conviction on the ground that the case of the accused would fall within exception 4 of Section 300 of Indian Penal Code and therefore, the conviction under Section 302 is bad. At the most, he contended in the alternative that the case may fall under Section 304, Part II of the Indian Penal Code.