State of Gujarat vs Sureshbhai Fakabhai Machhi and Others

M.R. Shah, J.—1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Bharuch camp at Ankleshwar, dated 24.8.2006 passed in Special Atrocity Case No. 22 of 2006 acquitting the original accused for the offences punishable under Sections 302, 323, 504 and 114 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act, the State has preferred the present Criminal Appeal.

Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal the original complainant has also preferred Criminal Revision Application No. 750 of 2006.

Both, this Appeal and Revision Application are heard, decided and disposed of by this common judgment and order.

The case of the prosecution in nutshell is as under :-

"4.1 According to the prosecution case, on 15.4.2 006 at about 8:00 hours complainant -Chandrakantbhai Nanabhai alongwith his nephew Naineshbhai Kanchanbhai Vasava and Sunilbhai Ishvarbhai Vasava had gone in their boat in river Narmada for the purpose of fishing and at that time other two persons of village Koral viz. Suresh Fakabhai Kothi and Maheshbhai Shanabhai of Village : Koral had also arrived with their big boat there for the purpose of fishing. It is further the case of the prosecution that from the said accused Suresh, prosecution witness Sunil had demanded fish and accused Suresh had said that he is not having fish. Thereof ore, prosecution witness Sunil has said that you are having fish, inspite of the said fact, you are denying and thereby they raised a dispute. Therefore, accused Suresh Faka got excited and started giving filthy abuses to the complainant and prosecution witnesses relating to his caste. It is further the case of prosecution that as complainant and prosecution witnesses had requested not to give filthy abuses, the accused Suresh got excited and gave blow of oar on the head of Nainesh and as a result he fell down in deep water of river. It is further the case of prosecution that at the relevant point of time, accused Suresh also gave blow of oar on right leg of complainant and, therefore, complainant also fell down in river but as he was knowing swimming he came back by swimming on the bank of river. It is further the case of prosecution that after half an hour, while Sunil met the complainant, he told that he was also beaten by accused Suresh on right hand and as a result he had jumped into the water. Thereafter, both these persons alongwith Kanchanbhai Shanabhai Vasava, Shankarbhai Nanabhai Vasava, Ramabhai Nanabhai Vasava and other members of the village started to search Nainesh. Inspite of the same, no whereabout were found about Nainesh. Thereafter, after a period of three days dead body of deceased Nainesh was found lying in between village Vlugam and Bhavpur in river. Therefore, complaint was registered as CR No. I-23 of 2006 before Umalla Police Station on 18.4.2006 against the respondents.

4.2 The FIR was investigated by the Investigating Officer, Dy. Superintendent of Police - Naresh Ambalal Muniya. During the course of investigation the Investigating Officer recorded the statement of the concerned witnesses. He also prepared the panchnama of the place of incident as well as inquest panchnama. He also gathered medical evidence in the form of postmortem report etc. That having found sufficient case against the accused for the offences under Sections 302, 323, 504 and 114 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act the Investigating Officer filed the charge-sheet against the accused in the Court of learned Judicial Magistrate First Class, Jagadiya. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of learned Additional Sessions Judge, Fast track Court No. 3, Bharuch at camp Ankleshwar which was numbered as Special Atrocity Case No. 22 of 2006. The accused pleaded not guilty and, therefore, they came to be tried by the learned Special Court for the aforesaid offences. The learned Special Court framed charge against the accused at Ex. 4 for the offences under Sections 302, 323, 504 land 114 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act. As observed hereinabove, the accused pleaded not guilty and, therefore, they came to be tried by the learned trial Court for the aforesaid offences.

4.3 To prove the case against the accused the prosecution has examined as many as following seven prosecutions witnesses :-

Through the aforesaid witnesses the prosecution also produced following documentary evidences:-

After closing purshis submitted by the prosecution, further statement of both the accused came to be recorded under Section 313 of the Criminal Procedure Code in which both the accused denied having committed any offence. However, in the cross-examination of the concerned witnesses, the defence brought on record the following documentary evidences:-

At the conclusion of the trial the learned Special Court by impugned judgment and order has acquitted the original accused for the offences punishable under Sections 302, 323, 504 and 114 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act, mainly on the ground that the injured eyewitnesses cannot be believed as both of them in their statement recorded by the police on 16.4.2006 did not disclose that they have also sustained some injurs alleged to have been caused by the original accused No. 1. Therefore, having opined that there are contradictions in the deposition and their statement before the police the learned trial Court has disbelieved the case of the prosecution and consequently has acquitted the original accused. Feeling aggrieved and dissatisfied by the impugned judgment and order of acquittal, the State as well as original complainant have preferred present Criminal Appeal as well as Revision Application."

Ms. Moxa Thakkar, learned APP appearing on behalf of the State has vehemently stated that in the facts and circumstances of the case the learned trial Court has committed a grave error in acquitting original accused.

5.1 It is vehemently submitted by Ms. Thakkar, learned APP appearing on behalf of the State that findings recorded by the learned trial Court while acquitting the original accused are as such perverse and/or on misreading of the evidence on record.

5.2 It is further submitted by Ms. Thakkar, learned APP appearing on behalf of the State that the learned trial Court has materially erred in not appreciating the deposition of the injured eyewitness Chandrakantbhai Nanabhai (original complainant) as well as injured eyewitness, Sunilbhai Ishvarbhai, who are examined as P.W. No. 1 and 2 at Ex. 8 and 11. It is vehemently submitted by Ms. Thakkar, learned APP appearing on behalf of the State that both the aforesaid witnesses categorically stated in their deposition that the original accused No. 1 caused injury on the skull of the deceased by an oar due to which the deceased after having sustained the injuries on the skull fell down in the river. It is submitted that the case of the prosecution has been thereafter fully supported by the medical evidence and the doctor, who performed the postmortem report. It is submitted that as such there was no defence by the accused and/or not a single question has been asked by the defence to the said witnesses disputing the above facts narrated by the aforesaid prosecution witnesses.

5.3 It is further submitted by Ms. Thakkar, learned APP appearing on behalf of the State that even the doctor, who performed the postmortem report, who has been examined as P.W. No. 3 at Ex. 13 as Medical Officer Dr. Kaushal Jitendra Patel that the deceased had a fracture on the skull which was possible by oar and thereafter he might have become unconscious and thereafter he fell down and could not swim and get out of the river. It is submitted that therefore in the present case the prosecution has been successful in proving the case/fact that the original accused No. 1 gave the blow by oar on the head - vital part of the body of the deceased due to which he became unconscious and thereafter he fell down and could not swim and get out of the river. It is further submitted that even the learned trial Court has also erred in not appreciating the fact that even the accused came to be arrested after a period of four days. It is further submitted that in the present case in their 313 statement except denial there is no explanation by the accused about their absence in the village from 15.4.2006 to 20.4.2006 (the day on which they came to be arrested). It is submitted that in any case by leading cogent evidence by examining the original complainant Chandrakantbhai Nanabhai, P.W. No. 1 at Ex. 8; injured eyewitness Sunilbhai Ishvarbhai as P.W. No. 2 at Ex. 11; Medical Officer Shri Kaushal Jitendra Patel as P.W. No. 3 at Ex. 13; younger brother of the original complainant as P.W. No. 4 at Ex. 17 and the uncle of the deceased Shankarbhai Nanabhai as P.W. No. 5 at Ex. 19 and P.W. No. 6 P.S.O Fatesinh Shankarbhai at Ex. 37 and P.W. No. 7 the Investigating Officer Dy. Superintendent of Police - Naresh Ambalal at Ex. 43, the prosecution has been successful in proving the case that injury sustained by the deceased was antemortem and that the original accused No. 1 caused the injury on the skull of the deceased and there was a fracture on the skull sustained by the deceased and he fell down in the river and he became unconscious because of the injury and thereafter he could not get out of the river and ultimately died. It is submitted that therefore the learned trial Court has committed a grave error in acquitting the original accused. It is submitted that when the findings recorded by the learned trial Court are on misreading of the evidence and/or the same can be said to be contrary to the evidence on record and thereby perverse and, therefore, the order of acquittal passed by the learned trial Court has resulted into miscarriage of justice. Therefore, it is requested to interfere in the impugned judgment and order of acquittal of acquit the original accused for the offences for which they came to be tried. However, the learned APP is not in a position to point out any case against the original accused No. 2 and is not in a position to satisfy the Court how the impugned judgment and order passed by the learned trial Court acquitting the original accused No. 2 can be said to be erroneous which requires interference of this Court. She is also not in a position to assail the impugned judgment and order of acquittal passed by the learned trial Court in so far as acquitting original accused for the offence under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act. She is also not in a position to assail the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused for the offences under Sections 323, 504 and 114 of the Indian Penal Code in so far as causing injury on the injured witness viz. Chandrakantbhai Nanabhai and Sunilbhai Ishvarbhai, who are examined as P.W. No. 1 and 2.

Mr. Ashok Parmar, learned advocate appearing on behalf of the original complainant has adopted the submissions made by the learned APP and has requested to quash and set aside the impugned judgment and order whereby the learned trial Judge has acquitted the original accused No. 1 for the offence under Section 302 of the Indian Penal Code. He is also not in a position to satisfy the Court how the J impugned judgment and order of acquittal passed by the learned trial Court in so far as acquitting the original accused for the offence under Sections 323, 504 and 114 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act can be said to be erroneous which requires interference of this Court in exercise of the appellate jurisdiction.

The present Appeal is opposed by Shri Madansingh O. Barod, learned advocate appearing on behalf of the original accused. It is vehemently submitted by Shri Barod, learned advocate appearing on behalf of the original accused that the findings recorded by the learned trial Court, recorded while acquitting the original accused are on appreciation of the evidence and, therefore, the same are not required to be interfered by this Court in exercise of appellate jurisdiction. It is vehemently submitted that when on appreciation of the evidence the learned trial Court has taken a view in favour of the accused and has acquitted the original accused, the same is not required to be interfered with by this Court in exercise of appellate jurisdiction. It is vehemently submitted by Shri Barod, learned advocate appearing on behalf of the original accused that by giving cogent reasons the learned trial Court has rightly discarded and/or disbelieved the deposition of the injured eyewitnesses, Chandrakantbhai Nanabhai and Sunilbhai Ishvarbhai. It is submitted that as rightly observed by the learned trial Court that both of them in their statement recorded by the police recorded on 16.4.2006 did not disclose any injury caused by the accused on them and, therefore, there are material contradictions in their statement before the police as well as in their deposition and, therefore, the learned trial Court has rightly acquitted the original accused.

7.1 It is further submitted by Shri Barod, learned advocate appearing on behalf of the accused that even the complaint was lodged/registered after a period of three days i.e. on 18.4.2006. It is further submitted that as such the delay in lodging the complaint has not been explained by the original complainant and the prosecution.

7.2 It is further submitted that even no case is made out against the original accused No. 2. It is submitted that as such there are no specific allegations against the original accused No. 2 that he participated in commission of the offence and/or he abetted the original accused No. 1 in commission of offence. It is submitted that therefore as such the learned ''trial Court has not committed any error acquitting the original accused including the acquitting the original accused No. 2.

7.3 It is further submitted that even the prosecution has failed to prove by cogent evidence that the original accused caused any injury on the injured eyewitnesses i.e. Chandrakantbhai Nanabhai and Sunilbhai Ishvarbhai. It is submitted that even both the aforesaid prosecution witnesses as injured eyewitnesses specifically stated that they did not disclose in their statement recorded by the police on 16.4.2006 with respect to any injury sustained by them. It is submitted that even otherwise the injuries on the said injured eyewitnesses has not been supported by any medical evidence. It is submitted that therefore the learned trial Court has rightly acquitted the original accused for the offence under Section 323 of the Indian Penal Code.

7.4 It is further submitted by learned APP that even the prosecution has failed to prove by leading cogent evidence any case against the original accused for the offence under Section 504 of the Indian Penal Code.

7.5 It is further submitted by Shri Barod, learned advocate appearing on behalf of the original accused that the learned Special Court has rightly acquitted the original accused for the offence under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act. It is submitted that the ingredient of Section 3(2)(5) of the Act are not at all satisfied and, therefore, the learned trial Court has rightly acquitted the original accused for the offence of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act.

7.6 In the alternative it is submitted by Shri Barod, learned advocate appearing on behalf of the original accused that if this Court believes that the original accused No. 1 gave the/blow by oar on the head of the deceased and consequently the deceased sustained injury on the skull, in that case, it is submitted that as it was a single blow and there was no intention to kill the deceased as all of a sudden the quarrel took place and, therefore, the case would not fall within any of the clauses of Section 300 of the Indian Penal Code and, therefore, the accused may not be convicted for the offence punishable under Section 302 of the Indian Penal Code.

7.7 It is submitted by Shri Barod, learned advocate appearing on behalf of the original complainant, more particularly original accused No. 1 that at the most the case may fall under Section 307 or under Section 304 Part-II of the Indian Penal Code. Making the above submission it is requested to dismiss the present Appeal as well as the Revision Application and/or in the alternative to consider the alternative submission made by Shri Barod that the case may fall under Section 307 or 304 Part-II of the Indian Penal Code.

Heard the learned advocates appearing for the respective parties at length. Perused the impugned judgment and order of acquittal passed by the learned trial Court and the reasonings given by the learned trial Court and we have depreciated the entire evidence on record.

At the out set, it is required to be noted that both the original accused were tried for the offences punishable under Sections 302, 323, 504 and 114 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act. As per the case of the prosecution when the deceased alongwith P.W. No. 1 and 2 went for fishing in Narmada river. At that time, the original accused were also fishing and they were coming from the opposite side and at that time when the deceased asked about the fishes from the original accused No. 1, he became angry and the original accused No. 1 gave oar blow on the skull of the deceased and the deceased after having suffered the injury on the head of the skull fell down in the river and, thereafter because of that he became unconscious. As he could not swim, he could not get out of the river. To prove the above, the prosecution has as such examined two injured eyewitnesses i.e. P.W. No. 1 and 2 at Ex. 8 and 11. Both of them in their deposition have categorically stated that when they went for fishing in the Narmada river at that time the deceased asked about the fish from the original accused No. 1 and the original accused No. 1 gave the evasive reply and he became angry and gave oar blow on the skull of the deceased. On the aforesaid aspect as such there is no cross-examination by the defence. It appears that both the aforesaid witnesses are cross-examined by the defence with respect to the injuries sustained by both the aforesaid injured eyewitnesses and their contradictions in their statement recorded by the police, recorded on 16.4.2006 and their case before the Court. However, as such there is no cross-examination by the defence with respect to the prosecution case and even what was stated by the aforesaid witnesses that the original accused No. 1 gave the oar blow on the skull of the deceased and that he fell down. The injuries on the deceased and that the same were caused by the oar have been proved by the prosecution by leading the medical evidence. Dr. Kaushal Jitendra Patel, who performed the postmortem report has. categorically stated that the deceased had a fracture on the skull and that the said injuries were antemortem and that the same could have been by the oar and that after the injuries sustained by the deceased he fell down in the river and he became unconscious. Thus, the injuries on the deceased by oar has been established and proved by the prosecution by leading cogent evidence. As observed hereinabove, the injury caused by the original accused No. 1 has been established and proved by prosecution by examining P.W. No. 1 Chandrakantbhai Nanabhai and P.W. No. 2 Sunilbhai Ishvarbhai. Thus, the prosecution has been >successful in proving the injury sustained by the deceased being antemortem and the death of the deceased being homicidal death. At this stage, it is required to be noted that missing of the deceased was disclosed by the original complainant Chandrakantbhai Nanabhai on 16.3.2006 itself and in the statement recorded by the police on 16.4.2006 Sunilbhai Ishvarbhai has specifically stated that the original accused No. 1 gave oar blow on the skull of the deceased and thereafter, he fell down in the river and that the deceased was not traceable. Therefore, as such it cannot be said that whatever he stated in his deposition was afterthought.

Now so far as submission on behalf of the accused that there is a delay in lodging the FIR is concerned, it is required to be noted that missing of the deceased was first disclosed before the police on 16.4.2006 and the incident occurred in the night of 15.4.2006 and thereafter all were trying to find out and/or search the deceased and the dead body of the deceased was found out on 18.4.2006 and immediately thereafter the FIR has been lodged or registered by the police. Therefore, as such it cannot be said that there was any delay in lodging complaint and/or lodging the FIR on 18.4.2006 which can be said to be fatal to the prosecution case. As observed hereinabove, even whatever has been deposed before the Court was disclosed before the police in the statement recorded on 16.4.2006. However, at that time, the deceased was missing and everybody was trying to find out and/or search the body of the deceased, therefore the FIR was not registered for the offence under Sections 302, 323, 504 and 114 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act.

It is also required to be noted and it has come on record and from the FSL report even the blood of the deceased was found on the clothes of the accused No. 1. The original accused No. 1 has failed to explain the blood of the deceased on his cloth. The aforesaid circumstances also goes against the original accused No. 1.

In view of the above, the prosecution has been successful in establishing and proving (1) that the injury on the deceased was antemortem;(2) that death of the deceased was homicidal death; (3) that the injury sustained by the deceased was by an oar and that too by the original accused No. 1. Therefore, the learned trial Court has as such committed a grave error in not believing the case of the prosecution and acquitting the original accused.

From the reasonings given by the learned Special Court it appears that what is weighed with the learned Special Court is the contradictions in the statement of the witnesses P.W. No. 1 and 2 in their statement before the police and before the Court. However, it is required to be noted and as observed hereinabove the contradiction seems to be only with respect to the injury sustained by both the aforesaid witnesses and not with respect to the blow given by the accused No. 2 on the skull of the deceased. Therefore, as such it cannot be said that there are any contradictions in the statement of the witnesses before the police and before the Court.

Now that takes us to what offence the original accused have committed.

Now so far as accused No. 2 is concerned, having gone through the entire evidence on record and even considering the deposition of the P.W. No. 1 and 2 there seem to be no allegation against the original accused No. 2 that he participated in the commission of the offence. There is no evidence that the original accused No. 2 abetted the original accused No. 1 in commission of the offence. Entire allegations and as per the case of the prosecution the original accused No. 1 gave oar blow on the skull of the deceased. Under the circumstances, as such no error has been committed by the learned Special Court acquitting the original accused No. 2 for the offence under Section 302 of the Indian Penal Code.

Similarly the prosecution has failed to prove that any of the accused including the original accused No. 1 caused any injuries on the injured eyewitnesses i.e. P.W. No. 1 and 2. Even the case under Section 504 of the Indian Penal Code has not been established and proved.

It is required to be noted that in their statement before the police recorded on 16.4.2006 none of the aforesaid witnesses stated having received any injuries by them. Even the alleged injuries on the P.W. No. 1 and 2 alleged eyewitnesses even not proved by the medical evidence. Under the circumstances, the learned Special Court has rightly acquitted the original accused for the offence under Sections 323 and 504 of the Indian Penal Code.

Similarly even the learned Special Court has not committed any error in acquitting the original accused for the offence under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act. The ingredients of Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act, 1989 are not at all satisfied. It was never the case on behalf of the prosecution or any of the witnesses that the accused committed the offence on the ground that the deceased was a member of the Scheduled Caste or Scheduled Tribe. Therefore, the learned trial Court has rightly acquitted the original accused for the offence under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act.

Now so far as the case against the original accused No. 1 having committed the death of the deceased is concerned, as observed hereinabove the prosecution has been successful in proving the case against the original accused No. 1. It is alternatively submitted by Shri Barod, learned advocate appearing on behalf of the original accused No. 1 that as it was a single blow given by the original accused No. 1 and there was no intention to kill the deceased and that the incident has occurred because of grave and sudden provocation and, therefore, he may not be convicted for the offence punishable under Section 302 of the Indian Penal Code and the case may fall either under Section 307 or 304 Part-II of the Indian Penal Code. On the other hand, it is the case on behalf of the State that original accused No. 1 gave the blow by oar on the vital part of the body i.e. on skull. It is submitted that even in the further statement under Section 313 of the Criminal Procedure Code and/or even it was never the case on behalf of accused No. 1 that there was a quarrel and because of grave and sudden provocation the incident had taken place. It is submitted that therefore either the accused may be convicted for the offence punishable under Section 302 of the Indian Penal Code or in the alternative for the offence under Section 304 Part-I of the Indian Penal Code. In support of her above submissions learned app has heavily relied upon decision in the case of Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604. To the aforesaid it is required to be noted that the original accused No. 1 gave the blow by oar on the vital part of the body i.e. on skull with such a force that there was fracture on the skull. As rightly submitted by learned APP that it was never the case of the defence and/or original accused No. 1 that there was a quarrel and that because of grave and sudden provocation the incident has taken place and/or he gave the blow on the deceased. However, at the same time, it is required to be noted that after the original accused No. 1 gave the blow by oar on the head of the deceased, the deceased fell down in the river and it appears that he became unconscious and, therefore, he could not swim and, therefore, he could not get out of the river. Therefore, it cannot be said that it was intention of the original accused No. 1 to kill the deceased and, therefore, as such the case would not fall under Section 300 of the Indian Penal Code. However, considering the aforesaid facts and circumstances when the accused No. 1 gave the blow by an oar on the vital part of the body and with such a force due to which he fell and even considering the medical evidence/deposition of Dr.Kaushal Jitendra Patel he might have become unconscious because of the injury sustained by him, the case would fall under Section 304 Part-I of the Indian Penal Code. The alternative submission made by Shri Barod, learned advocate appearing on behalf of the original accused No. 1 that the case may fall under Section 307 or even 304 Part- II cannot be accepted for the aforesaid reasons.

Under the circumstances, the learned Special Court has committed a grave error in acquitting the original accused No. 1 and the finding recorded by the learned Special Court while acquitting the original accused No. 1 cannot be sustained as the same are either on misreading of the evidence on record and/or contrary to the evidence on record and thereby the acquittal of the original accused No. 1 has resulted into miscarriage of justice. Therefore, this Court is of the opinion that this is a fit case to interfere with the impugned judgment and order passed by the learned Special Court and to quash and set aside the same.

At this stage, it is required to be noted that from the record it appears that the learned Presiding Judge was in hast and hurry in concluding the trial. At this stage, it is required to be noted that the original accused No. 1 was arrested on 20.4.2006 and thereafter the learned Judicial Magistrate First Class committed the case to the learned Special Court on 13.6.2006 and the learned Special Court framed the charge against the accused on 19.7.2006 and witnesses came to be examined on 18.8.2006/19.8.2006 and 313 statement of the original accused came to be recorded on 19.8.2006 and trial also concluded on the very same day i.e. on 19.8.2006 and the impugned judgment and order came to be passed by the learned trial Court on 24.8.2006.

The aforesaid speaks for itself. Even otherwise as observed hereinabove the prosecution has been successful in proving the case against the original accused No. 1.

In view of the aforesaid and for the reasonings recorded above the present Criminal Appeal succeeds in part. The impugned judgment and order dated 24.8.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Bharuch camp at Ankleshwar, acquitting original accused in Special Atrocity Case No. 22 of 2006 for the offences punishable under Sections 323, and 504 of the Indian Penal Code and under Section 3(2)(5) of the Prevention of (Scheduled Caste and Scheduled Tribe) Atrocities Act is hereby confirmed. The impugned judgment and order passed by the learned Special Court acquitting the original accused No. 2 for the offence punishable under Section 302 of the Indian Penal Code is also hereby confirmed. However, the impugned judgment and order passed by the learned Special Court acquitting the original accused No. 1 for the offence under Section 302 of the Indian Penal Code is hereby quashed and set aside and original accused No. 1 is hereby held guilty for the offence under Section 304 Part-I of the Indian Penal Code for the death of deceased - Naineshbhai Kanchanbhai Vasava and is hereby convicted for the offence under Section 304 Part-I of the Indian Penal Code. The original accused No. 1 is hereby directed to undergo the sentence of 10 years R.I. with fine of Rs. 5,000/- (Rupees Five Thousand Only) and in default to undergo further 06 months R.I. for the offence under Section 304 Part-I of the Indian Penal Code. As the impugned judgment and order of acquittal is being reversed and original accused No. 1 is hereby held guilty for the offence under Section 304 Part-I of the Indian Penal Code his bail bond stands cancelled and time to surrender to the original accused No. 1 to undergo the sentence as per the present judgment and order is granted upto 21.2.2016. It goes without saying that whatever sentence the original accused No. 1 has undergone during the trial the same may be given set off in accordance with law.

The present Appeal is partly allowed to the aforesaid extent.

The Criminal Revision Application No. 750 of 2006 preferred by the original complainant stands disposed of in aforesaid term.