Decided on January 13,2016

Mulchandbhai Hemabhai Bhangi And Ors. Appellant


K.S. Jhaveri, J. - (1.) This appeal is preferred against the judgment and order dated 18.3.2002 passed by Additional Sessions Judge, Mehsana in Sessions Case No. 164 of 1997, whereby both the accused were held guilty for offence punishable under Sec. 302 read with Sec. 114 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 200/ - and in default of payment of fine, accused were ordered to undergo simple imprisonment for five days. Feeling aggrieved by the impugned judgment, both the accused have preferred present appeal before this Court.
(2.) The facts in brief giving rise to the filing of present appeal are as under: - 2.1 It is the case of the prosecution that on 20.11.1995 at about 8.30 p.m. both the accused had come to the house of the deceased Shankarsinh, situated in Railway Quarter near Bhandu Railway Station. It is alleged that accused No. 1 demanded bidi which was not given by the deceased and, therefore, the quarrel had taken place. Therefore, accused No. 2 brought wooden block and gave it to accused No. 1, who assaulted the deceased with that wooden block. It is also alleged that even accused No. 2 had attacked the deceased with a stick. It is further the case of the prosecution that the deceased succumbed to the injuries sustained by him after six days of the incident and the complaint was given by the deceased himself on 22.11.1995 against the accused persons. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge -sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses: - 2.4 The prosecution had also produced and relied upon following documentary evidence: - 2.5 At the end of trial, the Court below recorded further statements of accused persons under Sec. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court.
(3.) Mr. K.J. Panchal, learned advocate for the appellants -original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He also submitted that in view of the medical evidence it is clear that none of the doctors have opined that the injuries sustained by the deceased were not sufficient in ordinary course of nature to cause death and, therefore, the accused could not have been convicted for offence under Sec. 302 of IPC. He further contended that this is an accident and there was no motive on the part of the accused to commit murder and they were not having any knowledge that their act would result into death of the deceased. He submitted that since there was no intention on the part of the accused or they were not knowing that their act will result into the death of the deceased, they could not have been convicted for offence under Sec. 302 of IPC. Mr. Panchal has further contended that it has come on record that the incident took place on 20.11.1995 and the deceased died on 26.11.1995 i.e. 6 days after the incident and the cause of death as stated by the doctor is shock due to septic peritonitis. He, therefore, submitted that the learned trial Judge has committed an error in convicting the accused for offence under Sec. 302 of IPC and, at the most, the accused could be held guilty for offence punishable under Sec. 304, Part -II of IPC. In support of his submission, he has relied upon the decision of the Honourable Apex Court in B.N. Kavatakar and another v/s. State of Karnataka [1994 Supp (1) SCC 304]. In view of these, he prayed that this appeal may be allowed.;

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