STATE OF GUJARAT Vs. DHARSING T VAGHELA

JUDGEMENT

(1.) These two appeals are filed by the State against the judgment and order dated 9.9.1991 of the Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 10 of 1988. The Criminal Appeal No. 360 of 1992 is for enhancement of the sentence imposed on the original accused no.1- Dharsing Tikubha Vaghela for offence punishable under section 304 Part II of the IPC and the other appeal being Criminal Appeal No. 361 of 1992 is against the acquittal of the original accused no.1 Dharsing Tikubha Vaghela for offence punishable under section 302 of the IPC and the acquittal of accused nos. 2,3 and 4 i.e. Jenubha Tikubha, Hematsing Kubersing and Tikubha Kubersingh for offences punishable under section 302 read with section 34 of IPC.

(2.) The prosecution version is that on 17.8.1987, which was the day following the day of Gokulashtami, a festival was being celebrated in the honour of Lord Krishna by one Vinubha Cheharsing who had invited young girls of the community for dinner in the evening. This function was arranged by Vinubha Cheharsing in his "Madh" (a "Madh" is an upper storey over the entrance to a street). Inside the Madh, there was an open chowk and beyond that open chowk was the house of Vinubha Cheharsing. In that open chowk, young girls were playing garba. The incident is said to have occurred between 7.00 and 8.00 p.m. At that time, Manharba and Kevdaba, daughters of Pansing Pratapsing who were invited were also participating in playing garba. There was one Mayaba, daughter of Babaji Makamsing who was also playing garba with them and other girls. At that time, some quarrel took place between Manharba and Mayaba. Mayaba was related to the accused persons. At that time, the accused no.2 Jenubha gave a slap to Manharba while taking side of Mayaba. Therefore, Kevadaba i.e. the sister of Manharba went and complained to their father Pansing Pratapsing whose house was nearby the locality. Pansing Pratapsing, therefore, came to the site and chided the accused no.2 for having slapped Manharba who was a girl of about 18 years of age. According to the prosecution,the accused persons, therefore, became furious over Pansing and abused and attacked Pansing. Accused nos. 2,3 and 4 caught hold of Pansing outside the entrance of the Madh and the accused no.4 Tikubha who is the father of accused no.1 Dharsing and accused no.2 Jenubha shouted that Pansing should be killed. Thereupon, the accused no.1- Dharsing took out a knife from his waist and gave a blow to Pansing Pratapsing on his chest. Pansing fell down. The witness Vinubha Cheharsing who was near the entrance of the Madh and had seen the incident, as per the prosecution version, immediately went near Pansing who had fallen down. At that time, Pansing's wife Hetba also came from her house. Some other persons who were in the Madh also came out. The injured was lifted and carried to be placed on an 'otla' of his brother Shantubha's house. From there, he was taken to the hospital at Thara. From Thara, he was taken to Radhanpur hospital and from Radhanpur, he was carried to the Civil Hospital, Ahmedabad where he died in the morning of 18.8.1987 at 6.15. According to the prosecution, immediately after receiving the knife blow on his chest, the injured Pansing had disclosed the names of the assailants and the part played by them, to his wife Hetba and the witness Chakubha and others who were present. The prosecution case is that Manharba and Vinubha had witnessed the incident. The prosecution relied upon the history which was recorded by Dr.V.R.Dabhi in the case paper at Ex. 23 in which also, the injured Pansing is said to have narrated the incident involving the accused nos.1,2 and 3. The prosecution also relied upon the FIR said to have been given by the injured at Radhanpur hospital at around 1.00 o'clock in the night in which the prosecution version reflects against all these accused persons.

(3.) The defence of the accused persons was of total denial. The trial court held that the prosecution has established that the accused no.1 Dharsing had caused fatal injury to Pansing by a knife. It was, however, held that the injury could not be said to have been caused with the intention of causing death of Pansing, but it was caused with the knowledge that it was likely to cause his death and, therefore, the accused no.1 -Dharsing had committed an offence under section 304 Part II of the IPC. As regards the other three accused persons, the trial court held that it was not proved beyond reasonable doubt that they had shared the common intention of the accused no.1. The accused nos. 2,3 and 4 were, therefore, acquitted of the offences levelled against them. While acquitting the accused no.1- Dharsing of offence under section 302 of the IPC and convicting him of the offence under section 304 Part II of the IPC, the trial court sentenced him to undergo Rigorous Imprisonment for a period of five years with a fine of Rs. 300.00, in default, to undergo S.I. for one month.