PAKA @ PRAKASH DHIRUBHAI GOHIL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) ALL the three appellants are convicted for the offence punishable under Sections 302, 504 read with Section 114 of the Indian Penal Code by impugned judgment dated 10.01.2003 of learned Joint District Judge, F.T.C. No. 3, Nadiad in Sessions Case No. 29 of 2000.

(2.) LEARNED Counsel Mr. M.J. Buddhbhatti, appearing for the appellants, restricted the appeal to challenging conviction under Section 302 and urged reduction of sentence, particularly, in view of the fact that appellant Nos. 1 and 2 had already undergone nearly 8 years of imprisonment and appellant No. 3 had already undergone nearly 4 years of imprisonment. It was submitted by Mr. Buddhbhatti that, by all account, there was a free fight, injuries on both sides after many years of enmity and cross complaints filed in the same incident, wherein all the three appellants were injured. He, therefore, broadly submitted that the case of the appellants was either, at the worst, of exceeding the right of private defence or homicide in sudden fight upon a sudden quarrel. He pointed out from the evidence on record that all the three appellants were, as per medical certificates at Exhs.34, 35 and 36, injured. Right Premier Tooth of appellant No. 1, aged 21 at the time was broken, while appellant No. 2 had contused lacerated wound on the left hand and appellant No. 3 had suffered injury on the left middle finger, due to which, swelling was marked. All the three appellants had given history of assault on them at about 7:00 am on the date of incident i.e. on 14.09.1999. It was submitted on that basis that appellant Nos. 1 and 2, who were alleged to have held knife and caused death of victim could, at the worst, be convicted under Section 304 and sentenced accordingly, whereas, appellant No. 3 was only alleged to have thrown a brick injuring the original complainant and could be convicted at the worst for the offence punishable under Section 337 of I.P.C.

(3.) IT was seen from the deposition of main eye -witness, father of the deceased (PW -1, Exh.39) that, admittedly, there was an incident at 7:15 near the residence of the complainant and the appellants, wherein quarrel was started about the passage of water by a sewer. He deposed that his deceased son, Mukesh, was asked by the appellants to come towards outskirts of the village and when Mukesh was going towards bus -stand in his rickshaw, the appellants intercepted him and, hearing shout of Mukesh, the complainant also reached there. At that time, appellant No. 1 dealt a blow with the knife on the neck of the deceased and appellant No. 2 dealt a stab wound on the left abdomen with a knife. Third blow of the knife was dealt by appellant No. 2 on the hand of the deceased. Besides that appellant No. 3 had thrown stones, one of which hit the complainant on his back. While the deceased was alive, he was taken to the police station and then to Krishna hospital, where he was declared to have died. In his cross -examination, he admitted that persons from both sides were near relatives and neighbours but were not communicating and both were keeping buffaloes which caused the problem of passage of sewage.