KARSHAN MADHABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellants - convict have preferred both these appeals under section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the common judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Mehsana on 10. 1. 2000 in Sessions Case No. 133 of 1999.

(2.) HEARD the learned advocates for the parties.

(3.) THE prosecution case started with the lodging of the FIR on 3. 1. 1999. In the FIR, the case as set out by the prosecution was that the deceased never used to permit his daughter to go to her in laws and on that, the accused persons got enraged and in that pretext, the appellant of Criminal Appeal No. 158 of 2000 caused two stab injuries by sword on the chest and abdomen of the deceased. However, appellants of Criminal Appeal No. 116 of 2000 inflicted simple blows. There is no evidence available on record which shows that any pre-consult or pre-hatched conspiracy was there to kill the deceased. It was the heat of moment that the accused persons, by the conduct of the deceased, caused injuries to the deceased. In that view of the matter, when the fatal injuries have been inflicted and candidly accepted by the learned advocate for the appellants that it is only the appellant of Criminal Appeal No. 158 of 2000 who is responsible for causing the death and the other accused i. e. appellants of Criminal Appeal No. 116 of 2000 might be interested in giving such blows which were necessary for giving only a lesson to the deceased and not intended to kill, the conviction of appellants of Criminal Appeal No. 116 of 2000 cannot be sustained under section 302 of the IPC but they are only liable to be convicted under section 323 of the IPC. As regards appellant of Criminal Appeal No. 158 of 2000 is concerned, he can be convicted under section 302 of the IPC, because his action was the direct action for causing death.