SOMA BHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant Soma Bhai Lala Bhai - hereinafter referred to as Soma Lala was tried by the Sessions Judge, Surat for the charges under Sections 302, 303 and 201 I.P.C. as also under Ss. 25 (1) (a) and 27 of the Indian Arms Act, 1959, but was acquitted of all the charges by the Sessions Judge by his order dated November 30, 1971. The State of Gujarat filed an appeal before the High Court of Gujarat against the order of acquittal passed by the Sessions Judge and after hearing the aforesaid appeal the High Court of Gujarat reversed the order of acquittal and convicted the accused for offences under Section 302 I.P.C. and sentenced him to life imprisonment, under S. 307 to five years R. I. and a fine of Rs. 1000/-, under S. 25 (1) (a) of the Arms Act to one year's R.I. and a fine of Rs. 200/- and under Section 27 of the Arms Act to rigorous imprisonment for three years and a fine of Rs. 500/-. All the substantive sentences of imprisonment were ordered to run concurrently. The appellant has filed this appeal before us against the order of the High Court under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

(2.) This case illustrates what disastrous consequences smuggling activities can some times lead to. In the instant case the precious life of a person has been lost and another person has been seriously injured because the accused is alleged to have entertained. a serious apprehension that secrets of his smuggling activities would be revealed by one of the injured persons. The deceased Chhania Dhana however appears to have suffered merely because of his innocent intervention in the altercation between the appellant and Naran Kala the injured person.

(3.) Briefly put the prosecution case is as follows. The appellant Sonia Lala and some of the eye witnesses are residents of village Dandi, which is situated on the sea-shore of Olpad Taluq of Surat District. It appears that all these persons were interested. in smuggling silver worth Rupees 34,00,000/- which they had hidden. somewhere in the creek of the village sea-shore. Naran Kala one of the injured persons who had been shot by the appellant and was his main target used to be in the employ of the appellant for 2 or 3 years before the occurrence, but as the appellant was not paying his salary regularly he left his service and took up employment under Ratilal Deva. Five days prior to the incident, there was an altercation between Dita Lala and Makan Dita who were close relations of the accused and the deceased Chhania Dhana and Naran Kala near the seashore of the village. In the course of the altercation, Chhania Dhana is said to have assulted Dita Lala and Makan Dita. This altercation resulted because Naran Kala appears to have been aware of the secrets of Soma Lala, Dita Lala and others regarding the place where they hoarded the stocks of silver. This, according to the prosecution, provided the immediate provocation to the appellant to cause the death of Chhania Dhana and injuries to Naran Kala. The prosecution case was that on 20-2-1971 the complainant Ratilal Deva and Naran Kala-who will hereinafter be referred to as Naran-had gone to Surat on February 20, 1971, which is the date of occurrence. Both of them returned to the village Dandi in the jeep of Ratilal Deva along with the witnesses Soma Rama and Lalu Govind who also got a lift in the jeep of Ratilal Deva. After reaching Dandi the jeep car was left near the house of witness. Lalu and other persons went to their respective houses. After a while all these persons collected at the house of Lalu Govind where Chhania Dhana was already there. "They talked together on various matters for about an hour and thereafter Lalu Govind suggested that they should go to the house of Jiva Natha a neighbour living in the same village to enquire about his health because he was ailing for some time. In view of the proposal made by Lalu Govind, Ratilal Deva and Lalu Govind left the house and went to Jiva Natha's house where they found his wife Bai Bhani who told them that Jiva Natha had gone out and was likely to return soon. They were requested by Bai Bhani to wait for some time and accordingly Ratilal Deva and Lalu Govind waited for Jiva and occupied a wooden bench kept on the Otta (raised platform) of Jiva Natha's house. As it was dark:a lantern was kept burning just near the Otta where the two witnesses were sitting. As Ratilal Deva and Lalu Govind did not return to the house, the remaining members of the group, namely. Chhania Dhana and Soma Rama also proceeded to Jiva Natha's house. Ten minutes thereafter the appellant Soma Lala came through the opposite lane and finding his erstwhile servant Naran in the company of Ratilal Deva and his group he got enraged and asked Naran why he had left his service and taken employment under Ratilal Deva. Naran asserted that he was free to do anything he liked. This led to exchange of hot words between the appellant and Naran. It is said that the appellant had also made a grievance of the fact that Naran had beaten Dita Lala and Makan Dita who were keeping a watch over some goods of the accused. Naran, however, did not admit this allegation but warned the accused that he knew about all the activities of the appellant and would give out all the information to the police if he was further harassed. The deceased Chhania Dhana intervened and told the appellant that there was no reason to create all this fuss because Naran was a free man to accept the employment of any one he liked. This, however, enraged the appellant who was armed with a revolver and he fired two shots which hit the, deceased Chhania Dhana and fired one shot which hit Naran. Thereafter the accused bolted away and while returning he dashed against the projected corrugated iron sheets which were lying near the passage through which the accused fled away and sustained a small injury on the head. While the accused was running away, Sariat Soma lighted his torch and saw the accused with injuries on his head. According to the prosecution when the accused fired, the complainant Ratilal Deva and others went into the house of Jiva Natha and came out after the accused has left the place of occurrence but they saw the entire occurrence. When Ratilal Deva, Soma Rama and Lalu Govind came out in, the Angan they found Sariat Soma enquiring from the deceased Chhania Dhana as to what had happened and he told him that he was shot by the appellant who had injured both of them. This oral dying declaration is one of the most important pieces of evidence relied upon by the prosecution in support of its case. Thereafter the persons who had gathered in the house of Jiva Natha decided to carry the injured to the house of Lalu Govind. In accordance with this plan, Ratilal Deva and Mitha Bava carried Naran, while Lalu Govind, Soma Rama and Makan Rama carried Chhania Dhana to the house of Lalu Govind. When the two injured persons were brought near the house of Mitha Bava they stopped groaning and the prosecution party perhaps took them as dead. These two injured persons were therefore left in front of the house of Mitha Bava, while the complainant Ratilal Deva and Lalu Govind decided to proceed to Olpad police station to inform the police. On the way, however, they went to Gamelsinh at Kundiana and asked him to arrange for a doctor because Gamelsinh was working as a teacher and appeared to be a respectable person. The witnesses are alleged to have narrated the entire incident to Gamelsinh. No doctor could be sent to village Dandi because the doctor was not available. The complainant Ratilal Deva and Lalu Govind ultimately reached the police station Olpad at about 9-30 P.M. and informed the P.S.I. Mahindra Kumar H. Patel - hereinafter referred to as Patel. The P.S.I. Patel after coming to know that the occurrence was a very serious one booked a call to Surat Police Station which materialised at about 9-47 P.M. and after getting instructions from the main Police station at Surat he registered the case on the basis of the first information report lodged by Ratilal Deva at 10-15 P.M. While the complainant Ratilal Deva and Lalu Govind were at the police station Olpad, the witness Soma Rama took the injured persons from village Dandi to the Surat Civil Hospital in a jeep car and reached there at about 10 P.M. but unfortunately Chhania Dhana succumbed to the injuries before he could reach the Hospital. It appears that the appellant also reached Surat Police Station, according to the evidence, near about 10 P.M. and was arrested by the Circle Inspector Rijhsinghani, because by the time the accused reached the police station, Rijhsinghani had already received information about the appellant having shot the deceased and injured Naran. A huge capital was made by the defence out of the fact that in the report sent to the Surat Police Station it was said that the appellant had killed two persons, whereas the fact of the matter was that only one person was killed and one injured. This was however, an error of misdescription by the person who, heard the telephone and does not appear to be of much consequence. Thereafter the P.S.I. Patel reached the spot, examined the witnesses and after completing the usual investigations submitted a charge-sheet as a result of which the appellant was tried before the Sessions Judge, Surat and acquitted by him but on appeal he was convicted and sentenced as, indicated above.