STATE OF GUJARAT Vs. KHACHAR DIPU

JUDGEMENT

(1.) These two appeals are directed against the judgment and order passed by learned Additional Sessions Judge, (Fast Track Court No. 3), Bhavnagar, camp at Botad, in Sessions Case No. 166 of 1998, dated 5th March, 2009. Three accused were charged with offence punishable under Sections 302 and 201, read with Section 34, of the Indian Penal Code and on conclusion of the trial, learned Sessions Judge came to the conclusion that, only original Accused No.1, Khachar Dipu @ Dilipbhai Nakubhai, could be held to be guilty of offence punishable under section 304 Part-I of IPC and sentenced him to undergo Rigorous Imprisonment for 5 years, and imposed fine of Rs. 500/-, and ordered one month's Simple Imprisonment in default of payment of fine. Accused No:2 Khachar Vahtubhai Nakubhai and Accused No: 3 Devipujak Joni @ Jenti Shivabhai were acquitted of all the charges. It is against this judgment and order that the original A-1 has filed the conviction appeal being Criminal Appeal No. 1075 of 2009 and State is also in appeal, in Criminal Appeal No. 950 of 2009, challenging the acquittal of all the three accused from the charge of offence punishable under Section 302 of IPC.

(2.) As per the case of the prosecution, on 21.5.1998, on the basis of the complaint given by one Bhimji Shivabhai Koli, offence came to be registered vide CR-I No: 101 of 1998, with Gadhada Police Station, against three accused for offence punishable under Sec.302 read with Sec.34 of IPC, for murder of Shambhubhai Shivabhai Koli, the brother of the complainant. As per prosecution case, A-1 and A-2 had some quarrel with the deceased Shambhubhai Shivabhai on the question of throwing of garbage, and there was also hot exchange of words before three days of incident. As per prosecution case, on 20.5.1998, at about nine o'clock at night, after having dinner, when Shambhubhai Shivabhai, was on his way to his field on bicycle, accused riding in vehicle- matador Registration No: GJ-7-U-2385, followed him and dashed matador with the bicycle of Shambhubhai from behind and thereafter, they took Shambhubhai Shivabhai Koli in the matador and tied him with the rear side of the matador and dragged him for nearly 10 kilometers which resulted in death of Shambhbhai Shivabhai. On investigation accused were arrested and after collecting evidence charge-sheet was filed against them. The case being triable by the Court of Sessions, was committed to the Court of Sessions and the charge came to be framed against all the accused vide Exh. 12 to the effect that accused had committed offence under section 302 read with section 34 of IPC. The charge further stated that after killing Shambhubhai, accused had dumped the body of the deceased on the road and thereby tried to destroy the evidence and therefore they were charged for the offence under section 201 read with section 34 of IPC.

(3.) To prove the case, the prosecution examined 24 witnesses, the details of whom are recorded in para-5 of the judgment. The prosecution also brought on record 42 documentary evidence, the details of which are reflected in para-6 of the judgment. After leading of the evidence, further statements of all the accused under section 313 of Code of Criminal Procedure was recorded by the learned Sessions Judge. The arguments were heard of both the sides and ultimately, the learned Sessions Judge came to the conclusion that only original Accused No.1, Khachar Dipu @ Dilipbhai Nakubhai, could be held to be guilty of offence punishable under section 304 Part-I of IPC. Accused No:2 Khachar Vahtubhai Nakubhai and Accused No: 3 Devipujak Joni @ Jenti Shivabhai were acquitted of all the charges. As noted above, it is against this judgment and order that the original A-1 has filed the conviction appeal being Criminal Appeal No. 1075 of 2009 and State is also in appeal, in Criminal Appeal No. 950 of 2009, challenging the acquittal of all the three accused from the charge of offence punishable under Section 302 of IPC.