NARSHI BHAVAN PIPROTAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS Appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 ("Code, 1973"), arises out of judgment and order dated 24.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Khambhaliya, in Sessions Case No. 131 of 2008, whereby conviction and sentence imposed upon the appellant - accused No. 6 - Narshi Bhavan Piprotar for the offences punishable under Sections 143, 147, 148, 427, 506(2), 302 and 149 of the Indian Penal Code and Sections 25(1)(a) of the Arms Act. The appellant -accused was ordered to undergo simple imprisonment for one month and to pay a fine of Rs. 200/ -, in default of the same, to undergo further rigorous imprisonment of ten days, for the offences punishable under Sections 143 of the Indian Penal Code, for the offence punishable under Section 147 of the Indian Penal Code, he was ordered to suffer one year simple imprisonment and to pay a fine of Rs. 200/ -, in default, further to undergo ten days rigorous imprisonment, for the offence punishable under Section 148 of the Indian Penal Code, he was ordered to suffer one year simple imprisonment and to pay a fine of Rs. 1000/ -, in default, further to undergo two months rigorous imprisonment, for the offence punishable under Section 427 of the Indian Penal Code, he was ordered to suffer one month simple imprisonment and to pay a fine of Rs. 200/ -, in default, further to undergo ten days rigorous imprisonment, for the offence punishable under Section 506(2) of the Indian Penal Code, he was ordered to suffer one year simple imprisonment and to pay a fine of Rs. 1000/ -, in default, further to undergo two months rigorous imprisonment, for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code, he was ordered to suffer life imprisonment and to pay a fine of Rs. 5000/ -, in default, further to undergo one year rigorous imprisonment. Besides, the appellant was also ordered to suffer five years simple imprisonment along with fine of Rs. 3000/ -, in default, further two years rigorous imprisonment for the offences punishable under Section 25(1)(a) of the Arms Act. All the sentences shall run concurrently. Along with present appellant, there are other five co -accused in the aforesaid Sessions Case and they were also awarded the sentence by the learned Sessions Judge, but only the present appellant has preferred the appeal before this Court against the impugned judgment and order.

(2.) THE facts in short of the case of prosecution is such that the complainant lodged the complaint being CR I No. 43 of 2008 for the offences punishable under Sections 302, 504, 506(2), 143, 147, 148, 149, 427 of the Indian Penal Code and under Section 25(1)(a) of the Arms Act and also under Section 135(1) of the Bombay Police Act, before Bhanvad Police Station stating that the complainant - Vashrambhai Rudabhai Karena and his two brothers residing separately at village Bhoriya, Ta. Bhanvad, Dist. Jamnagar, engaged in the agricultural activities in the field, where the water was coming through the pipeline. The complainant has 20 Vighas land of share, which is known as "Vachara Valu" and on the western side of the said land, there was land of mashri mengo, which was purchased by the accused No. 1 - Bhavan Vajsi Piprotar before seven years from the incident and son of said accused No. 1 - Vijaybhai was residing in the said village. It is the say of the complainant that the water was coming through pipeline to the field of the complainant through machine and said pipeline was coming just adjacent to the field of the accused No. 1. Therefore, the accused No. 1 quarreled with the complainant for removing said pipeline before one month and oftenty, the said accused quarreled with the complainant with regard to the field, which was purchased and for the said dispute, litigation was also filed before the appropriate forum. On 30.9.2002, at about 2:00 p.m., the complainant's brother namely Rameshbhai came back from the field at home and he informed the complainant and his father that the accused persons were trying to remove the pipeline passing through the field and therefore, said Rameshbhai prevented them for doing so, at that time, the accused persons told him to call his father. Therefore, the complainant, his father and his two brothers reached at the field at about 3:00 O'clock on that day and the brother of the complainant namely Jerambhai was reached at the field, where he found that the accused persons were having stick in the hands and the present appellant was having 12 bore rifle and the accused No. 1 - Bhavan Vajsi told him to fire from the rifle and therefore, present appellant shot the Jerambhai through the said rifle and therefore, he had fallen down in bleeding condition after receiving the bullet injuries on the vital part of his chest i.e. near his heart. The complainant, his father and brother had seen the same and therefore, they were running to the place, where Jerambhai had fallen down, but at that time, the accused persons abused them and threatened to kill them if they would come near to the place and thereafter, the accused persons ran away from the place of incident. In the manner as stated above, the accused persons including present appellant committed the alleged offence. The said Jayrambhai after sometime died due to bullet injury on his chest. Thereafter, the police came to the spot as intimated by the father of the complainant and two panchas were called and inquest panchnama of dead body was drawn and the dead body was sent to the Government Hospital, Bhanvad for post mortem. The complaint of the complainant was taken by the police and investigation was carried out. The statements of witnesses were recorded and then panchnama of scene of offence was drawn. The muddamal articles were recovered from the place of offence, blood samples were taken. Then the accused Bhavanbhai, Jagdishbhai, Vijaybhai appeared before the police, so the arrest panchnama was drawn and sticks were also recovered from their possession. From Gondal village, the accused No. 5 - Viral Gulabray Joshi was arrested and before the Executive Magistrate, identification parade was made. Map of place was also drawn by Circle Officer. Earlier, present appellant was serving in Army at Rudki of Uttarakhand State, appeared before the police and he was arrested through transfer warrant of Bhanvad Court. Muddamal 12 bore rifle and cartridges were recovered. The recovered muddmal were sent to FSL, Gandhinagar and Junagadh for analysis purpose. After collecting sufficient evidence by the investigating agency, charge -sheet was filed before learned Judicial Magistrate First Class, Bhanvad, in exercise of power under Section 209 of the Code, 1973, committed the case to the learned Sessions Judge, Khambhaliya, where it was numbered as Sessions Case No. 131 of 2008 and later on, it was tried whereby the prosecution examined several evidence oral and documentary and finally statement of the accused also came to be recorded under Section 313 of the Code, 1973, whereby charge was denied by the accused completely.

(3.) AT the end of trial, the conviction and sentence recorded earlier was imposed by the learned Sessions Judge.