OSWAL DAMJI TEJSI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants who were accused Nos. 1 2 and 3 in the trial Court were convicted by the learned Sessions Judge Kutch for the offences under section 325 read with section 34 of the Indian Penal Code and each has been sentenced to suffer rigorous imprisonment for two years. The charge against the three appellants was one under section 302 read with section 34 of the I. P. C. The prosecution case was that on or about 21-9-1959 at about 3-30 A. M. in the village Vekara Taluka Rahpar District Kutch in furtherance of their common intention the accused committed the murder of one Charan Rana Mulu. The deceased Rana was a resident of the village Vekara. His brothers Desar and Samat also resided in the same village. The three accused are brothers. The prosecution case is that they resided at the village Somani-Wandh which is about half a mile from the village Vekara. On the night of 21-9-1959. some crops were standing in the field of the three accused. The prosecution case is that they had gone there for watching the crop in the field. On that night Rana Mulu went to the ridge of that field for grazing his cattle thereon. The prosecution case is that there was a custom in the village for people to take their cattle for grazing on the ridges of fields. Some of the buffaloes of Rana Mulu strayed into the crops of the accused and a part of their crop was damaged. Thereupon the three brothers came near the ridge and according to the prosecution there was an exchange of words between Rana and the accused and thereafter all the three accused persons attacked the deceased with sticks one of which was shod with iron-rings. The prosecution alleges that at this time the witness Mera Vala was grazing his bullock In a hillock nearby. On hearing the abuse and exchange of words he came to the spot and remonstrated with the accused not to beat Rana but he received threats from the accused No. 1 and thereupon he left the place. In all 21 injuries were caused on Rana. Two of these injuries had caused fractures of 3 ribs and as a result the right lung of Rana was punctured. Rana after receiving these injuries went to his brother Disar and informed him what had happened. Desar called Samat and the latter was also told about this incident. Then Desar went to the Police Station at Rahpar. He reached the place at about 8-45 A. M. and his First Information Report was recorded. The Police thought that it was a case of simple hurt and consequently registered only a non-cognizable complaint and instructed Desar to take further steps for filing a regular complaint before a Magistrate. According to prosecution witness Banesing was called in the morning and Rana also made a dying declaration before him. However Rana died as a result of the injury on the right lung before any medical treatment could be given to him. The information about his death was sent to Desar who received it on his way back to the village. Thereupon Desar went back to the Police Station at Rahpar and informed the Police about the death of Rana. Thereupon an offence of murder was registered and the P.S.I. came to the village on the night of 22-9-1959 and entered into investigation. Ultimately the Police charge sheeted all the three accused for the offences under sec. 302 read with sec. 34 of the I. P. C.

(2.) The case of all the three accused was one of total denial. The accused Nos. 1 and 2 alleged that they were at Ganithar and were not present at the scene of offence or in the village. The accused No. 3 also pleaded alibi. He admitted that he was at the village Somani-Wandh but according to him he was not present at the scene of offence when the offence was alleged to have taken place.

(3.) The learned Sessions Judge accepted the prosecution case that the three accused persons had attacked Rana and caused his death but he took the view that the prosecution had not established as to which of the accused persons had actually caused the fatal injuries. He came to the conclusion that the prosecution had failed to establish that there was a common intention to commit murder. He held that the evidence justified only the view that there was a common intention to cause grievous hurt and on that view he convicted the accused persons for the offences under sec. 325 read with sec. 34 of the Indian Penal Code. [