RABARI VASHIBHAI BHAGWANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant, who was original accused No. 1 in Sessions Case No. 4/2005, came to be convicted by the Sessions Court, Mehsana, on 10/2/2005 for the commission of offence punishable under Section 304 Part -I of the Indian Penal Code [IPC] and was sentenced to undergo rigorous imprisonment [RI] for seven years and fine of Rs. 10,000/ - and in default of payment of fine, simple imprisonment for one year. He came to be acquitted for the commission of offences punishable under Sections 302, 323, 504 and 201 of the IPC. Three co -accused, who were original accused Nos. 2, 3 and 4 came to be acquitted from all the charges levelled against them.

(2.) THE prosecution case, in nutshell, is that the incident occurred on 12/12/2004 at about 17.00 hours in the hotel of original accused No. 2 - Rabari Ajubhai Bhagwanbhai, which is situated in a village called Balasar, Taluka Kadi. It is alleged that at the time of the incident, deceased Bharatbhai Bhikhabhai and the first informant Mangaji Ranchhodji went to the hotel and they found original accused No. 2 - Ajubhai Bhagwanbhai consuming liquor. It is alleged that the deceased Bharatbhai consumed liquor along with original accused No. 2 Ajubhai Bhagwanbhai. At that time, appellant original accused No. 1 - Vashibhai Bhagwanbhai came there and saw the deceased Bharatbhai consuming liquor. It is alleged that the appellant slapped the first informant Mangaji Ranchhodji and, therefore, he made his escape good. It is alleged that the appellant did not like deceased Bharatbhai taking liquor with original accused No. 2 - Ajubhai Bhagwanbhai and thereupon, inflicted a blow with wooden plank on the head of deceased Bharatbhai. It is further alleged that some -how deceased Bharatbhai went to the S.T. Bus Stand, which is about 7 to 8 ft., away from the hotel and fell down there. He was brought to Community Health Center, Kadi and there he succumbed to the injuries. The first informant Mangaji Ranchhodji lodged FIR in Kadi Police Station. The offence came to be registered and the investigation was started. Statements of material witnesses came to be recorded. Documentary evidence like P M Report, etc., were collected. Necessary panchnamas were prepared. Weapon wooden plank was discovered while drawing discovery panchnama. After collecting required material for the purpose of lodgement of charge -sheet, charge -sheet came to be filed in the Court of the Ld. Judicial Magistrate First Class, Kadi. Since the offence was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions at Mehsana, which came to be registered as Sessions Case No. 4/2005.

(3.) LD . Trial Judge framed charge at exh. 2 against 4 accused persons including the appellant for the commission of offences punishable under Sections 302, 323, 201 and 504 of the IPC and Section 135 of the Bombay Police Act, to which, including the appellant, all the 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, the Ld. Trial judge recorded further statements under Section 313 of the Criminal Procedure Code [Cr. P.C] of all the accused persons including the appellant and they denied generally all the allegations levelled against them by the prosecution and filed their written reply, wherein in short, they denied their involvement. After appreciating the evidence on record and the submissions made on behalf of both the sides, the Ld. Sessions Judge came to the conclusion that the appellant original accused No. 1 was responsible for causing death of deceased Bharatbhai and the prosecution successfully established his involvement in the offence. However, the Ld. Sessions Judge came to the conclusion that the offence, which can be said to have been constituted, is not the murder but the culpable homicide not amounting to murder and recorded conviction of the appellant for the offence punishable under Section 304 Part -I of the IPC and recorded his acquittal for offences punishable under Sections 302, 323, 201 and 504 of the IPC and Section 135 of the Bombay police Act. On the basis of the same set of evidence, the Ld. Trial Judge recorded acquittal of 3 co -accused persons who were original accused Nos. 2, 3 and 4. Hence, the original accused No. 1 challenged his conviction by preferring the appeal.