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2019 Supreme(Guj) 961
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BELA M. TRIVEDI, A.C. RAO, JJ.
Ashok Ambikaprasad Yadav – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Appeal No. 404 of 2015 With R/Criminal Appeal No. 1169 of 2016
Decided on : 03-12-2019
Advocate Appeared:
For the Appellant : Mr.Matafer R. Pande, Ms.Femina Chapatwala, Mr. Mrudul Barot,
For the Respondent: Mr.Himanshu Patel, Mr.Himanshu Patel,
Headnote:
Code of Criminal Procedure, 1973 – Section 374(2) – Indian Penal Code, 1860 – Sections 302, 34, 307, 323, 188, 504 – Criminal Appeal has been preferred by appellant – original accused No.2 and the Criminal Appeal has been preferred by appellant – original accused No.1 under Section 374(2) of Code of Criminal Procedure, 1973 questioning legality and validity of judgment and order of conviction and sentence passed by Additional Sessions Judge, in the Sessions Case – Held, It is clear that all accused due to the earlier dispute with a view to fulfill their common intention, attacked on deceased and caused serious injuries and while the complainant intervened to save the deceased, the accused also caused him serious injuries, with deadly weapons on vital part of the body, due to which deceased died and complainant sustained serious injuries, but complainant survived – It is clear that intention of accused was to kill even complainant also – Court is of considered opinion that trial court has considered evidence on record in its true perspective and rightly convicted and sentenced all the three accused – No error and/or illegality committed by trial court while passing impugned judgment and order of conviction and sentence – Appeals Dismissed (Paras 7.17, 7.18, 8.00)
JUDGMENT :
A.C. RAO, J.
1.00. As both the Criminal Appeals arise out of the common judgment and order of conviction and sentence, both these appeals are heard, decided and disposed of by this common judgment and order.
2.00. The Criminal Appeal No.404 of 2015 has been preferred by the appellant – original accused No.2 named Ashok Ambikaprasad Yadav and the Criminal Appeal No.1169 of 2016 has been preferred by the appellant – original accused No.1 named Mahendra @ Pintu Dashrathbhai Gamit, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”), questioning the legality and validity of the judgment and order of conviction and sentence dated 04/09/2014 passed by the 5th Additional Sessions Judge, Surat (hereinafter referred to as “the trial court”), in the Sessions Case No.134 of 2010.
2.01. The original accused No.3 named Anil Dinanath Dube is not before this Court, however, it appears that the said accused had made an application through jail dated 17/2/2018 to the Secretary, Legal Services Authority to provide him legal aid for filing appeal against the very judgment and order of conviction and sentence, however, till date no legal aid was provided to said accused No.3 – Anil Dinanath Dube and therefore, no Appeal has been filed on his behalf. The Court, therefore, had passed the order dated 14/11/2019 requesting Mr.Mrudul Barot, learned advocate to appear as the amicus curie on behalf of the accused No.3 – Anil Dinanath Dube.
2.02. The trial court convicted all the three accused including the appellants herein – original accused Nos.1 & 2 as well as accused No.3, for the offences punishable under sections 302 read with section 34 of IPA and sentenced them to undergo life imprisonment with fine of Rs.5000/-, failing which to undergo Rigorous Imprisonment for 1 year.
The trial court also convicted all the accused for the offences punishable under sections 307 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 10 years and with fine of Rs.5000/-, failing which to undergo Rigorous Imprisonment for 6 months.
The trial court also convicted all the accused for the offences punishable under sections 323 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 1 year and with fine of Rs.500/-, failing which to undergo Rigorous Imprisonment for 1 month.
The trial court also convicted all the accused for the offences punishable under sections 504 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 1 year and with fine of Rs.500/-, failing which to undergo Rigorous Imprisonment for 1 month.
The trial court also convicted all the accused for the offences punishable under sections 188 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 6 months and with fine of Rs.500/-, failing which to undergo Rigorous Imprisonment for 1 month.
3.00. The case of the prosecution, in nut shell before the trial court was that, the complainant named Pratapbhai Gandhibhai Pradhan who was residing at Surat with his family and doing labour work lodged the FIR inter-alia stating that on 19/12/2009 he was at his home. On that day in the evening Ashwinkumar had gone for walking in the flower market and when he was in the flower market, at about 9 O'clock at night his younger brother Badal telephoned him from his mobile and informed him that Mahendra alias Pintu and his friend were quarreling with him. Badal told him that he should come to Patel Nagar, Near Hanuman Temple. Therefore, he was going to the Hanuman Temple and while he was on the way, he received another phone call from his brother and hence he ran towards the Hanuman Temple. When he reached there, his known person named Dipak Krishna informed that Badal was being beaten near Patelnagar, Hanuman Temple and hence he rushed there. On reaching there, he seen that Mahendra alias Pintu and his friends Ashok Yadav and Anil, all three were beating his brother Badal w
