The main legal point established in the judgment is that the assault did not have the intention to kill, leading to the alteration of the conviction from Section 302 to Section 326 of IPC.

JUDGMENT :

M.R. MENGDEY, J.

1. Criminal Appeal No. 400 of 2014 has been preferred by the Appellants namely Makwana Munnabhai Babubhai and Makwana Kalubhai Babubhai [Original Accused Nos. 1 and 2 respectively] under the provisions of Section 374 of the Code of Criminal Procedure (“Cr.P.C.” for short) challenging the judgment and order dated 29.6.2013 passed by the learned Additional Sessions Judge, Dhangadra in Sessions Case No. 1 of 2009 whereby the Appellants have been convicted for offence punishable under Sections 302 read with Section 149 of the Indian Penal Code (“IPC” for short) and passed sentence for Rigorous Imprisonment, whereas, Criminal Appeal No. 1481 of 2013 has been preferred by the Appellant – State under Section 377 of the Cr. P.C. for enhancement of sentence imposed upon the Respondent Nos. 1, 2 and 3 [Original Accused Nos. 3, 4, 5 respectively] vide the aforesaid judgment.

2. It is pertinent to note at this stage that out of the three Respondents in Criminal Appeal No. 1481 of 2013, the Respondent No.1 - Makwana Laljibhai Veljibhai [Original Accused No.3] has expired and the said Appeal therefore abated qua him.

3. The facts and circumstances giving rise to the filing of the present Appeals are as under.

3.1 On 15.6.2008, Jerambhai Sangrambhai Vaghela lodged an FIR with the Dhangadra Taluka Police Station to the effect that on 15.6.2008 he and his other family members along with several labourers were working in the field and his father namely Sangrambhai was moving around in the field. At around 11 O’ Clock, Munnabhai Babubhai armed with Dharia, Kalubhai Babubhai armed with Axe, Laljibhai Veljibhai armed with Dharia, Jesinghbhai Valjibhai armed with Stick and Babubhai Valjibhai armed with Dharia, entered into the field from canal and started assaulting his father Sangrambhai with the weapons they were carrying. He, his brother and his mother immediately ran to the spot. By the time they reached to the spot, the assailants fled away from the spot and his father was lying on the field profusely bleeding. He was immediately moved to the hospital at Dhangadra from where he was referred to C.U.Shah Hospital at Surendranagar and from Surendranagar he was referred to V.S.Hospital, Ahmedabad.

4. On the basis of the said FIR, initially an offence punishable under Sections 147, 148, 149, 447 and 307 of IPC was registered against the accused persons. Pending the investigation, the victim Sangrambhai succumbed to his injuries and died after eleven days of the incident, and therefore, Section 302 of IPC was added to the FIR. The Investigating Agency, after conclusion of investigation, filed charge sheet against the accused persons for the aforesaid offences.

5. Since the offences in question were exclusively triable by the Court of Sessions, the Court of learned Magistrate, after complying with the provisions of Sections 207 and 208 of Cr.P.C., committed the case to the Court of Sessions for trial under Section 209 of Cr.P.C.

6. Upon commission of the case, the learned Sessions Judge framed charge against the accused persons for the aforesaid offences vide Exh.11. Since the accused persons pleaded not guilty, they were put to trial.

7. The prosecution has adduced oral as well as documentary evidence to bring home the charge leveled against the accused persons. The learned Sessions Judge, after considering the evidence on record, was pleased to convict the accused persons for offence punishable under Sections 302 read with Section 447 read with Section 149, 147 and 148 of IPC.

8. The Appellants of Criminal Appeal No. 400 of 2014 were imposed punishment of life imprisonment whereas the Respondents in Criminal Appeal No. 1481 of 2013 were sentenced to undergo Rigorous Imprisonment for six years with fine of Rs.10000/- vide impugned judgment and order dated 29.6.2013.

9. Being aggrieved and dissatisfied with the same, the respective Appellants have preferred the present Criminal Appeals.

10. Heard learned Advocate Shri Bomi H. Sethna f