ASHOKBHAI SHIVKUMAR PANDYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals arise out of judgement and order dated 1st May, 2000 rendered in Sessions Case No.88 of 1991 by learned Sessions Judge, Bharuch whereby the appellants original accused Nos.7 and 9 of Criminal Appeal No.450 of 2000 came to be convicted under Section 304 Part-I read with Section 34 and original accused Nos.1 to 6 came to be acquitted of all the charges. Accused Nos. 7 and 9 were sentenced to undergo rigorous imprisonment for 6 years. Accused No.7 was ordered to pay fine of Rs.300/- in default thereof to suffer further imprisonment for 3 months and accused No.9 to pay fine of Rs.100/- and in default thereof to suffer further imprisonment for 2 months.

(2.) Criminal Appeal No. 2588 of 2005 is preferred by the complainant under Section 378 of Code of Criminal Procedure, 1973 against the respondents No.7 and 9 who came to be convicted for offence under Section 304 Part-I read with Section 34 of Indian Penal Code but not under Section 302 of the Indian Penal Code and no appeal against accused No.8 who came to be acquitted of all offences. Criminal Appeal No.450 of 2000 is preferred by convicted appellants original accused Nos.7 and 9 under Section 374(2) of the Code of Criminal Procedure, 1973.

(3.) The case of the prosecution has genesis in the incident which took place on 24.11.1989 on the day of Lok Sabha Election of Bharuch Parliamentary Constituency and during hours of polling at Village Kavi having population of around 15,000, original accused Nos. 1 to 6 are alleged to be BJP workers and residents of village Kavi, accused No.7 was PSI In-charge of the police station at Kavi, accused No.8 and accused No.9 both were Jawans at State Reserve Police Force performing their duties on the eve of election. The complaint as per the case of the complainant that initially about 16:30 p.m. on 24.11.1989, at the outskirts of village Kavi at one of the polling booth situated at Kanyashala when deceased Isha Hasan Ghen Ghen (referred to as "IHG" by learned trial Judge) was following the complainant and a few steps away and while they were passing through the shop running in the name and style of "Arvindbhai Madhavbhai Cold-drink House", accused Nos. 7 and 9 were present there and that accused Nos.1 to 6 who were BJP workers instigated accused Nos.7 and 9 who were in uniform being members of police force that the deceased had brought voters and further alleged that accused No.1 to 6 instigated accused Nos.7 to 9 that Isha Hasan Ghen Ghen to be shot dead and accused Nos.7 to 9 being members of the police department had nothing to loose. Upon such instigation, accused No.7 pointed his finger towards deceased Isha Hasan Ghen Ghen and asked accused No.9 to shoot him. Accused No.9 fired a shot from his rifle to which Isha Hasan Ghen Ghen instantaneously succumbed to injuries. At the end of the investigation and on submitting the charge-sheet and committal of case, charge was framed for the offence under Sections 302 read with Section 147 and 149 of Indian Penal Code.