DILIPBHAI DEVJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these appeals arise out of a judgment and order rendered by learned Additional Sessions Judge, Fast Track Court No. 4, Navsari on 13.10.2004 in Sessions Case No. 29 of 2004, whereby, appellant Dilipbhai Devjibhai, who was original accused No. 2, and appellant Dahyabhai Devjibhai, who was original accused No. 1, came to be convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo life imprisonment and fine of Rs. 1,000/ - and in default of payment of fine, simple imprisonment for two months for the aforesaid offence.

(2.) THE prosecution case, in nutshell, is that the incident occurred at about 2.30 p.m. on 19.5.2004 in the outskirt of village Kukda, Taluka Vansada. It is the case of the prosecution that field of deceased Gulabbhai Ranchhodbhai is adjacent to the field of both the accused, who are brothers. Deceased Gulabbhai happened to be the uncle of the accused. On the day of incident, deceased Gulabbhai was cutting trees in his field and one tree fell on the land of the accused. Both the accused asked deceased Gulabbhai as to how his tree fell on their land and they quarreled with each other and at that time, it is alleged that deceased was holding a dharia, which the accused snatched away from the deceased and accused No. 2 Dilipbhai inflicted blow with reverse side of dharia (blunt side of dharia) on the body of the deceased and accused No. 1 Dahyabhai inflicted blows with wooden handle of dharia on the body of the deceased. The deceased succumbed to the injuries. PW 1 Ambaben Gulabhai, widow of the deceased, reported the incident to police and her FIR was registered. During the course of investigation, statements of material witnesses were recorded. After collecting required material for the purpose of lodgment of charge -sheet, charge -sheet came to be filed in the court of learned Judicial Magistrate First Class, Vansada. Since the offence was exclusively triable by the court of Sessions, the learned J.M.F.C., Vansada committed the case to Court of Sessions at Navsari, which was numbered as Sessions Case No. 29 of 2004.

(3.) LEARNED advocate Ms. Sadhana Sagar for both the appellants -accused stated that considering the evidence of eye witness, who is examined by the prosecution, it is difficult to assail the involvement of both the accused in this incident. It is therefore submitted that the involvement of both the accused in the incident is not disputed. However, it is submitted that considering the evidence on record, there was a quarrel between the deceased and both the accused and that weapon dharia was not brought by any of the accused but dharia was held by the deceased. Considering the medical evidence on record, the deceased sustained injuries, like abrasions and contusions, and the cause of death is reported to be 'Peritonitis due to perfovation due to abdominal injury'. That, therefore, the Trial Court erred in recording conviction of the appellants for the offence or murder, but the offence which can be said to have been made out is culpable homicide not amounting to murder punishable under Section 304 Part -II IPC.