VINUGIRI MOTIGIRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these six appeals arise from the judgement and order dated 28th January 1994 of the learned Additional Sessions Judge, Gondal in Sessions Case No. 212 of 1994 convicting all the six accused persons for the offence under section 302 read with section 149 of the Indian Penal Code and sentencing them to life imprisonment and payment of fine of Rs.3,000=00 each, in default to undergo further imprisonment for a period of one year.

(2.) The prosecution version was that, on 15th September 1992 at about 9.30 in the morning, all the six accused persons, after having formed an unlawful assembly and in furtherance of their common object of causing death of Hareshbhai Jivkubhai, attacked him on Rajkot Dhoraji Road, near the house of Gigabhai in Navagadh. In the process, they caused him as many as 18 wounds with knives and a gupti. According to the prosecution, the accused No.4 gave him blows with gupti and all the other accused with knives. On that morning, Hareshbhai had left his house for proceeding to Gondal to attend one sessions case in which his three brothers were the accused persons. His sister Geetaben who was in the house, thereafter, proceeded for going to Monghiben, wife of Gigabhai to inquire about her health. On her way, she took alongwith her a young girl Damuben to accompany her. After they reached Gigabhai's house and while Geetaben was sitting with Monghiben and Damuben, who was about 13 years of age, was playing outside the `deli' (entrance gate), Damuben saw the six accused persons attacking Hareshbhai with knives. She, therefore, raised cries and on hearing commotion, Geetaben, Inaben who is the daughter of Monghiben and Monghiben came out of the `Deli'. Hareshbhai who was given multiple blows with these weapons entered the `Deli' at that time. According to the prosecution, after Hareshbhai entered the `Deli', the `deli' was closed from inside by Monghiben. Hareshbhai who was injured, was uttering the names of the accused Nos.2, 3 and 4 imploring them to leave him. All the six accused then climbed over the rooms of the said house known as `Chamunda Nivas' and started pelting bricks in the `fali' of the house from the top where these bricks were lying. According to the prosecution, Hareshbhai had taken off his `zabba' and was pressing it against his bleeding wounds. He then lay on the cot inside the room of Monghiben and died. He was declared dead when he was taken to the Jetpur Government Hospital at about 10 o'clock in the morning. The prosecution version is that four eye witnesses had seen Hareshbhai being attacked by these six accused persons and these were Damuben, PW-9, exh.24, Bishubhai Dahyabhai, PW-6, exh.21, Induben Bishubhai, PW-7, exh.22 and Jivkubhai, father of Hareshbhai, PW-8, exh.23. Of these persons, Bishubhai was a tenant residing in the house of Gigabhai with his wife Induben. Jivkubhai who, according to the prosecution, returned from the Dyeing Factory due to moist climate, was walking behind his son at some distance and had seen these accused persons attacking him. According to the prosecution, Monghiben and her daughter Inaben had also seen these accused persons having climbed over their house after Hareshbhai entered the `Deli' and Monghiben closed the door from inside and their pelting bricks in the `fali' of their house. The prosecution case is that the accused Nos. 2, 3, 4 and 5 could be traced together only on 26-9-1992 near village Ganod and at the time when they were arrested, blood stained clothes were seized from their body.

(3.) All the accused were charged for the offences under sections 143, 144, 146, 148, 302 read with section 149, in the alternative section 302 read with section 34 of the Indian Penal Code and section 37(1) read with section 135 of the Bombay Police Act, by Charge exh.1 on the aforesaid facts.