DINESHBHAI PUJABHAI BARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE appeals are preferred from the judgment dated 5. 10. 2002 of learned Additional Sessions Judge (Fast Track), Godhra whereby original accused No. 2, namely, Dineshbhai Pujabhai Baria is convicted for the offence punishable under Section 302 of IPC and sentenced to imprisonment for life while the other accused persons Nos. 1, 3, 4 and 5 are acquitted, even as charge was framed against all the accused for the offences punishable under Sections 143, 147, 148, 302 and 323 of IPC. Appeal No. 1019 of 2002 is preferred by the convicted accused and Criminal Appeal No. 452 of 2003 is filed by the State to challenge acquittal of the remaining accused persons.

(2.) THE case and the controversy are in a very narrow compass and they could be resolved by reference to only the facts which are relevant for the purpose. The FIR, being CR No. 210 of 2001, came to be lodged by one Takhatsinh Chhatrasinh against the accused persons at 11. 15 a. m. at Village Eral, which is 22 kms. away from the police station. It was alleged in the complaint that the complainant and his family and his brothers and their wives were residing at the house of the father-in-law of their father and that being not liked by the other branch of their family consisting of the accused persons, the complainant's brother was attacked and killed in the morning while he was proceeding to answer the call of nature. It was alleged that firstly the women among the accused had come out of their house in the neighbourhood and gripped the deceased and thereafter the male among the accused persons had come out and out of them one Dineshbhai had dealt a blow with a gupti on the chest of the deceased, who died on the spot.

(3.) DURING the course of trial, prosecution mainly relied upon depositions of two witnesses as the eye witnesses, namely, Manjulaben (PW 9 at Exh. 25), who was the wife of the deceased and Takhatsinh, the complainant (PW 1 at Exh. 11 ). PW 1 deposed that there was some quarrel regarding flow of water from the house of the accused to the doors of the witnesses' house. On the day of the incident, accused Buniben and Vimlaben had caught hold of the deceased while accused Pujabhai came running from his house and called the main accused Dineshbhai, who thrust gupti into the body of the deceased. Pujabhai was stated to have dealt lathi blow on deceased due to which he fell down and the accused Rameshbhai was stated to have come running and injured the witness on his right hand by a stick blow. He identified the weapon as gupti, muddamal article No. 6, as the weapon used in the offence. He also stated that the accused had run after him and he had gone to the place of one Hatesinh Bapu, who was the Sarpanch of the village. Then, he had gone to one Kabhai and on his advice he had gone to Adadara Outpost and complaint was registered at Kalol Police Station at about 11. 00 a. m. He admitted in his cross-examination that there were several houses on the same street between his house and the house of the accused and he could not have seen the incident happening at the scene of offence while sitting in his own house. Then, he admitted that when he reached the spot, where the deceased was lying, he had seen the deceased in a dead condition and lying on the street while all the accused persons had run away. He denied that anyone else was present when he reached the spot. He deposed that he reached Adadara Outpost at around 9 O' clock after walking the distance. He admitted that his whole house and family were excommunicated and boycotted by the people of the village. He claimed total ignorance about the disputes and cases with regard to land and murder of his brother as well as about illicit affairs among the members of his family.