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IN THE HIGH COURT OF GUJARAT
K.S. Jhaveri, A.G. Uraizee, JJ.
Shambhubhai Nathabhai Padhiyar and others - Petitioners
Versus
State of Gujarat - Respondent
Criminal Appeal No. 867 of 2009 with Criminal Appeal No. 496 of 2011
Decided On : 03-07-2014
Indian Penal Code, 1860 - Sections 302 r/w 114, 323 r/w 114, 504 r/w 114 - Bombay Police Act, 1951 - Section 135 - Criminal Procedure Code, 1973 - Section 235(2) - Offence of Murder - Accused no. 1 was cutting branches of trees grown by complainant when complainant said accused no. 1 not to cut branches of said trees and thereupon all appellants gathered armed with sticks and accused no. 1 gave stick blows on head of father of complainant - deceased back wrist of left hand and shoulder suffered head injuries and died - Appeal against Conviction - Held, There was no major dispute between appellants and deceased but at spur of moment when argument about cutting of branches of trees took place - Appellants in a fit of rage committed alleged offence -Sentence awarded to appellants required to converted to section 304 (Part I) of IPC - Conviction of appellants under other sentences upheld - Appeal allowed
JUDGMENT :
A.G. Uraizee, J.
Both these appeals are directed against the judgment and order dated 31.03.2009 passed by the Additional Sessions Judge & Presiding Officer, Fast Track Court, Anand in Sessions Case No. 23 of 2008 for the offence punishable under section 302 r/w section 114, 323 r/w 114, 504 r/w 114 of Indian Penal Code and section 135 of B.P. Act. They came to be convicted for these offences under Section 235(2) of the Code of Criminal Procedure and are directed to suffer imprisonment as under:-
| Sr. No | Criminal Appeal No. | Particulars of sentence |
| 1. | Cri. Appeal No. 867/09 | Life Imprisonment and fine of Rs. 5000/-, I.D. |
| R.I. for 6 months for offences punishable under Section 302 read with Section 114 of the I.P. Code. | ||
| R.I. For 3 months and fine of Rs. 250/- I.D. | ||
| R.I. for 1 month for offences punishable under Section 323 read with Section 114 of the I.P. Code. | ||
| R.I. For 1 month and fine of Rs. 250/- I.D. | ||
| R.I. for 5 days for offences punishable under Section 504 read with Section 114 of the I.P. Code. | ||
| R.I. For 15 days and fine of Rs. 100/- I.D. | ||
| R.I. For 5 days for offences punishable under Section 135 of B.P. Act. | ||
| 2. | Cri. Appeal No. 496/11 | Life Imprisonment and fine of Rs. 5000/-, I.D. R.I. for 6 months for offences punishable under Section 302 read with Section 114 of the I.P. Code. |
| R.I. For 3 months and fine of Rs. 250/- I.D. R.I. for 1 month for offences punishable under Section 323 read with Section 114 of the I.P. Code. | ||
| R.I. For 1 month and fine of Rs. 250/- I.D. R.I. for 5 days for offences punishable under Section 504 read with Section 114 of the I.P. Code. | ||
| R.I. For 15 days and fine of Rs. 100/- I.D. R.I. For 5 days for offences punishable under Section 135 of B.P. Act. |
1.1 Being aggrieved by the said conviction and sentence, original accused no. 1, 3 & 4 have preferred Criminal Appeal No. 867 of 2009 and original accused no. 2 has preferred Criminal Appeal No. 496 of 2011.
2. The facts of the prosecution case against the appellants is that on 26.11.2007 at about 08.00 am, accused no. 1 - Shambhubhai Padhiyar was cutting the branches of tree grown by the complainant in his field at Ambav, Bevdipura sim. The complainant asked accused no. 1 not to cut the branches of the said tree and thereupon all the appellants gathered armed with sticks and accused no. 1 gave stick blows on the head of the father of complainant - deceased Lakhabhai, back, wrist of left hand and shoulder. Accused no. 2 also gave stick blow on the head of deceased and wrist of Khumansinh. Lakhabhai suffered head injuries and therefore initially he was taken to Primary Health Center, Anklav from where he was taken to Vadodara for further treatment but unfortunately he succumbed to the injuries. A complaint in respect of this incident was lodged by the complainant by Chimanbhai Padhiyar (PW No. 3), son of deceased with Anklav Rural Police Station. In pursuance of this complaint, FIR vide Anklav Rural Police Station CR No. 3069 of 2007 came to be registered.
2.2 The trial was initiated against the appellants and during the course of trial the prosecution examined following 20 witnesses as oral evidences:
| (i) | P.W. 1 - Dr. Girish Thakkar | Ex. 20 |
| (ii) | P.W. 2 - Hitesh Vaishnav | Ex. 34 |
| (iii) | P.W. 3 - Chimanbhai Padhiyar | Ex. 39 |
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