Hemant Gupta JUDGMENT
Hemant Gupta, J.
1. The challenge in the present appeal is to an order passed by the High Court of Gujarat at Ahmedabad on 24.10.2008 maintaining conviction for offences Under Sections 302 and 324 of Indian Penal Code against the Appellants for causing death of Bhura Govind and Lakha Arjan.
2. The prosecution case is that on 1st July 1987 at about 12 midnight in Village Prempara-Rampara, the Appellants caused injuries to Bhura Govind and Lakha Arjan with spears etc and on account of grievous injuries inflicted, both of them died on the spot. The FIR was lodged at 7 AM on 2nd July 1987 and the Appellants were arrested on 17th July 1987. The cause of occurrence is that the Appellants were not giving right of way to the deceased. The complainant party had fled the civil suit in which injunction was granted in their favour. The Appellants also lodged a cross case which is Sessions Case No. 97 of 1987.
3. After completion of investigations, the Appellants were made to stand trial. The Appellants have been convicted for life for offence Under Section 302 but no separate punishment was inflicted for the offence Under Section 324 Indian Penal Code.
4. In the present appeal, the argument of learned Counsel for the Appellants is that the deceased and their accomplices, 9 in number, were the aggressors. The injuries have been inflicted on both the Appellants. Such injuries have been proved by PW-10, Dr. Nikhilkumar Buch who was posted at Civil Hospital, Junagarh at the relevant time. The Appellants have remained in hospital from 02.07.1987 to 17.07.1987. The Appellants have received grievous injuries, while protecting the possession of their land, thus, they have acted in their right of private defence.
5. It is also argued in the alternative that the occurrence has taken place at the spur of the moment without any pre-meditation and that the Appellants are not taken any advantage or acted in a cruel or unusual manner, therefore, the conviction of the Appellants for the offences Under Section 302 read with Section 34 Indian Penal Code is not sustainable. In fact at best, an offence Under Section 304 (Part II) can be said to have made out. The Appellants have undergone more than 11 years of actual imprisonment, therefore, in the event the Appellants are convicted for an offence Under Section 304(Part II), they would be entitled to be released having completed the sentence which may be imposed as the maximum sentence is 10 years for an offence Under Section 304(Part II).
6. The argument is based on the statement of PW-13, Murlidhar Vasu, the Investigating Officer. He deposed that the Appellant No. 1 was lying at the spot and was bleeding. It is also argued that Vajibai, wife of Appel........