BHAVAL SHIVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) While taking up these 3 Appeals arising out of the judgment of conviction and sentence pronounced by the learned Addl. Sessions Judge (Ld. A.S.J.), Rajkot in Sessions Case No. 10 of 1985 dated 8-8-1985 convicting the appellant accused for the offences punishable under Secs. 147, 148, 149 with Sec. 302 of the Indian Penal Code. We would like to commence writing out brief opinion with the preamble that the judgment under challenge is ex-facie erroneous and that the conclusion are based upon no evidence and that the judgment of convictions could not have been the end product of the judicial process, namely the Sessions trial, before a Sessions Court. Now the brief facts :

(2.) The seven accused persons were put on trial before the learned A.S.J., Rajkot for the alleged commission of the offences punishable under Secs. 147, 148, 302, 324 and 323 read with Sec. 149 of the I.P.C. on the accusation that the 7 accused persons had formed themselves into an unlawful assembly on 11-7-1984 at about 7-30 p.m. at village Modhuka under the Jasdan taluka of the Rajkot district and had committed rioting with deadly weapons and had murdered deceased Pola Mashru and had caused injuries to the prosecution witnesses, namely, Ramuben, Jesing and Pratap. It appears that the accused persons who happened to be the members of the same family were related slightly distantly, to the deceased Pola Mashru. The son of the deceased Pola Mashru was employed at the instance of the accused No. 1 in a sugar factory and it appears that, later on he had met with some mishap and had lost his life. Certain proceedings for acquiring the compensation for the accidental death of the deceased were to be initiated and that, therefore, it is the case of the prosecution that some affidavits were required to be filed by the accused No. 1. Any how it was not done by them and therefore according to the case of the prosecution there was some dispute between the complainant side and the accused people. It is therefore case of the prosecution that on 11-3-1984 at about 7-30 p.m. the accused persons who were the members of the unlawful assembly and who were armed with deadly weapons like sticks, axe and dharias etc. had committed rioting and had assaulted upon deceased Pola Mashru and 3 other persons, namely Ramuben, Jesing and Pratap, Pola Mashru had sustained serious injuries and he had later on expired. The FIR was registered and the investigation had started. After the investigational stage was over the accused persons were put on trial before the learned A.S.J., Rajkot. The charge at Exh. 1 for the alleged commission of the above said offence came to be denied by the accused persons. The prosecution evidence was adduced and later on the original accused persons No. 4 and 5 namely Shantaben Dalsukh and Samjuben Shiva were accorded the benefit of doubt and they were acquitted. The rest of the accused persons came to be convicted for the offences punishable under Sec. 147, 148, 302 read with Sec. 149 of the I.P.C. They have been awarded imprisonment for life. The convicted accused have preferred these 3 appeals from the Jail. The original accused No. 6 Hiruben came to be enlarged on bail during the pendency of her appeal.

(3.) Mr. Dipak M. Shah the learned Advocate who has been appointed for the appellant accused has urged that the judgment of conviction and sentence rendered by the learned A.S.J. is based upon on evidence and that no judicial process could have culminated in the verdict of guilt. Mr. Shah has made a strong grievance that a case which could be branded easily as a case of no evidence has ultimately resulted in the conviction of the appellants and they could be sent behind the bars after awarding the imprisonment for life. Mr. Shah therefore has urged that, looking to the evidence on record and further looking to the conclusion and the reasonings assigned by the learned A.S.I. the present appeals require to be allowed. Any how Mr. Shelat the learned A.P.P. who appears on behalf of the respondent-State has tried his best to support the judgment of conviction and sentence as pronounced by the learned A.S.J.