AALABHAI GOKALBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE challenge in this appeal is to the judgment and order rendered by the Ld. Addl. Sessions Judge and Presiding Officer, F. T. C. , Gondal, on 13/10/2006 in Sessions Case No. 137/1996, whereby the appellant, who was original accused no. 1 in said case, came to be convicted for the offences punishable under sections 302 and 323 of the Indian Penal Code [ipc] and was sentenced to undergo life imprisonment and fine of Rs. 1,000/=, in default simple imprisonment [si] of three months for the offence punishable under section 302 of the IPC and SI for three months and fine of Rs. 500/- and in default of payment of fine, SI for one month for the offence punishable under section 323 of the IPC. Both the sentences were ordered to run concurrently and the appellant was given benefit of set off.

(2.) HOWEVER, this appeal is taken up for final hearing today with the consent of both the sides as learned advocate Mr. Bharda for the appellant stated that he does not dispute the incident and the involvement of the appellant in the incident and he only challenges the impugned judgment rendered by the trial Court on the issue as to what offence can be said to have been constituted in this case.

(3.) THE prosecution case, in nutshell, is that the incident occurred on 11/7/1996 at about 3. 30 p m in the outskirts of village Kangsiyari. At the relevant time and place the present appellant who was original accused no. 1 in the said case and co-accused Karsanbhai Gokalbhai, who came to be acquitted by the trial Court by the said judgment and one unidentified person, in-all three assailants, assaulted deceased Dineshbhai Khengarbhai and it is alleged that the appellant inflicted a blow with stick on the head of the deceased. It is also the case of the prosecution that the appellant inflicted blow with stick on the body of first informant Babubhai. Dineshbhai Khengarbhai was immediately removed to the hospital and during the treatment he succumbed to the injuries. First informant Babubhai informed to the police regarding incident and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. During the course of investigation, it was revealed that in the incident even the appellant had sustained bodily injuries. He was also under treatment in the hospital. His cross FIR was also registered. After collecting the required material for the purpose of lodgement of charge-sheet, charge-sheet came to be filed in the Court of Ld. Judicial Magistrate First Class, Gondal. Since the offence was exclusively triable by the Court of Sessions, Ld. Magistrate committed the case to the Court of Sessions, Rajkot at Gondal, which was numbered as Sessions Case No. 137 of 1996. 3. Ld. Trial Judge framed charge against both the accused [appellant and co-accused Karsanbhai] for the offences punishable under sections 302 and 323 read with section 114 of the IPC, to which accused did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the prosecution concluded its oral evidence, Ld. Trial Judge recorded further statements of the accused under section 313 of the Criminal Procedure Code and the accused in their further statements denied generally all the incriminating circumstances put to them by the trial Court and stated that they were falsely implicated in this case. 3. 1. After appreciating the evidence on record and the submissions made on behalf of both the sides, the Ld. Trial Judge came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt against the present appellant, who was original accused no. 1 in said case and recorded his conviction for the offences punishable under sections 302 and 323 of the IPC and awarded the sentence as hereinabove referred to in this judgment. However, the Ld. Trial Judge recorded acquittal of original accused no. 2 Karsanbhai by virtue of the same judgment.