A.J.DESAI - (1.) THE appellants-convicts, by way of this Appeal have challenged the judgment and order dated 30.11.2005, passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.1, Dahod, in Sessions Case No. 82 of 2005, by which appellant No.1 is ordered to undergo rigorous imprisonment of life with fine of Rs.25,000/-, in default, to undergo further rigorous imprisonment of six months for the offence under Section- 302 of the IPC; rigorous imprisonment of 7 months with fine of Rs. 500/-, in default, to undergo further rigorous imprisonment of one month for the offence under Section-323 of the IPC and to undergo rigorous imprisonment of one month with fine of Rs.100/-, in default, to undergo RI for one month for the offence under Section- 504 of the IPC and appellant No.2 is ordered to undergo rigorous imprisonment of life with fine of Rs.1,000/-, in default, to undergo further rigorous imprisonment of six months for the offence under Section-302 of the IPC; rigorous imprisonment of 3 months with fine of Rs.250/-, in default, to undergo further rigorous imprisonment of one month for the offence under Section-323 of the IPC and to undergo rigorous imprisonment of one month with fine of Rs.100/-, in default, to undergo RI for 15 days for the offence under Section-504 of the IPC. All the aforesaid sentences are ordered to run concurrently and both the accused are acquitted of the offence under Section-135 of the Bombay Police Act.
(2.) BRIEF facts of the prosecution case are as under: That one Ganabhai Ditabhai Bhuriya, on 26.3.2005, which was the second day of Holi (Dhuleti), lodged a complaint with Limdi police station of District Dahod against the present appellants alleging that since it was an occasion of Dhuleti, his son Bharat had played Dhuleti by throwing some colours on the daughter of the appellant No.1 and, therefore, the appellant No.1 being the father, gave two slaps to his son. At that time, his son Bharat challenged appellant No.1 that he has to pass through his house and therefor, the appellant No.1 along with appellant No.2, who is his nephew, ran after his son Bharat and when his son reached near the quarry, both the appellants caught hold of his son and gave kick and fist blows to him. He along with his wife Kaliben saw his son Bharat was running. Therefore, they reached at that place where they found that Bharat was successful in getting himself rescued from the appellants � accused. At that time, when his son Bharat was running, appellant No.1 picked up stone and thrown towards his son, who sustained an injury on the back side of his left ear and, therefore, Bharat fell down and thereafter the appellants left the place and ran away towards their house. The complainant took his son to a private Doctor, who advised them to take him at District place at Dahod and when they reached at the hospital of another Doctor, his son Bharat was declared dead. Pursuant to the filing of the complaint, the police personnel started investigation and after having found sufficient material against the accused persons, filed charge sheet in the court of learned Judicial Magistrate, First Class, at Jhalod, who in turn, committed the case in the Court of Sessions at Dahod. The accused persons pleaded not guilty for the charges levelled against them at Exhibit-2 and, therefore, the trial proceeded further . The prosecution examined 17 witnesses and produced other documents in support of its case and was successful in getting conviction of the appellants for the offences for which they were charged and were sentenced, as stated here-in-above.
(3.) LEARNED Advocate Ms. Sadhana Sagar, for the appellants, has assailed the judgment on several grounds, but the main ground advanced by her is with regard to truthfullness of the witnesses, ho posed themselves as eye witnesses to the incident. In support of her submissions, she has stated that the entire case of the witnesses at the initial stage was of pelting stone by appellant No.1 but subsequently the witnesses had deposed before the court by improving themselves, so that the medical evidence which has come on record would suit the say of those witnesses. She has further submitted that the eye witnesses, who are the parents and younger brother, aged 13 years, of the deceased � Bharat, if not believed, then, the entire case of the prosecution about the cause of death of the deceased Bharatbhai becomes unacceptable and therefore the reasons assigned by the Trial Court in accepting the depositions of these witnesses become erroneous and contrary to the evidence on record and therefor the conviction and sentences of the accused persons are required to be set aside. She has further submitted that the conduct of the investigating agency creates doubt if the inquest panchnama and the injuries sustained by the deceased, which has come on record through postmortem note, are compared. On the other hand, learned APP Mr. L.B. Dabhi, has supported the reasons assigned by the Trial Court and submitted that the parents and brother of the deceased are natural witnesses and have deposed before the court what they have witnessed. He has submitted that these witnesses have seen the incident of pelting stones by appellant No.1 but before the Court they have described the incident in detail and, therefore, the reasons assigned by the Trial Court does not require any interference.;