GABHABHAI KANABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals arise from the judgment delivered by the Ld. Sessions Judge, Amreli dated 30/9/1992 in Sessions Case No. 38/1991. By said judgment original accused no. 1 - Gala Kana has been convicted for an offence u/S. 302 of the Indian Penal Code (for short 'IPC') and he has been sentenced to suffer imprisonment for life. He has also been convicted for offence u/S. 333 of the IPC for which no separate sentence has been imposed. Moreover, he has been convicted for the offence u/S. 135 of the Bombay Police Act and has been sentenced to suffer RI for three months. The substantive sentences are ordered to run concurrently. He has, therefore, approached this Court by filing Criminal Appeal No. 1200 of 1992.

(2.) It is the case of the prosecution that on 22nd March, 1991 upon receiving information from the informant the Police Sub Inspector Mr. R.N. Dayatar attached to Liliya Police Station in District of Amreli decided to carry out raid under the provisions of the Bombay Prohibition Act at the place of accused. He, therefore, asked the police constables attached to his police station to dress themselves in uniform and to report to him at night. Pursuant to his order, at about 8.30 p.m. Police Constable Ramjibhai Dayalbhai, Rameshbhai Valajibhai, Mohanbhai Mangalaji, P.C. Vinabhai Khimabhai reported to P.S.I. One Kanubhai Haribhai Patel and Tulashibhai Valabhai Patel both resident of village Liliya were also summoned to act as Panch at the time of raid. At the office of the P.S.I. all these persons were given to understand that as information was received to the effect that accused no. 2 - Mithabhai Kanabhai of Kharagam village was dealing in illicit liquor, raid was to be carried out at his place. After complying with the initial formalities the raiding party started for going to Kharagam. Within half an hour they reached the place and after alighting from the jeep except the driver, other policemen together with panchas went to the house of accused no.2. When they reached there, they found the house was closed from inside. Hence the P.S.I. Dayatar gave a shout to open the door. In response thereto, a lady after some time came and opened the door and on seeing the police she shouted that 'run run, it is police'. On hearing her shouts, both the accused started running towards the back side of the house. Accused no. 2 was ahead of accused no.1. Immediately Police Constables Virabhai Khimabhai and Mohanbhai Mangalaji entered the house to apprehend the accused; whereas Police Constable Ramesh Valaji did not enter the house but from the outer side of the house he went towards back side of the house and waited near the door. As soon as accused no. 2 tried to go out from the back door, he was caught hold of by P.C. Rameshbhai. In the meanwhile accused no. 1 had already reached the back door and at that time accused no. 2 said "I am caught, Gala beat" [ Mane Pakadyo Chhe, Gala Mar ]. Accused no. 1, therefore, gave one blow with the weapon he was having at that time, to Police Constable Rameshbhai, who immediately fell down on the ground. The weapon was later on identified as Gupti which had entered the body of Police Constable Rameshbhai 2" below the left side nipple of the chest and it had pierced through the body downward across and the pointed end of the weapon had come out from the back of the right waist of the body. Both these accused who were being chased by the police officials made good their escape taking advantage of the darkness and also the cluster of babul trees. The P.S.I. warned them to stop and surrender. However, the accused did not listen to it and hence the P.S.I. fired one round from his revolver, but it did not have any effect and the accused could manage to disappear in the darkness. The policemen thereafter returned to the injured person Police Constable Rameshbhai and considering the nature of injury he was immediately asked by some of them as to what happened and the Police Constable Rameshbhai informed them that it was accused no. 1 - Gala who had caused him the injury. Police Constable Rameshbhai soon thereafter was shifted to Civil Hospital at Amreli. The Medical Officer on duty Dr. Kiranbhai Kalabhai Sagodiya examined him and on finding the condition of the patient critical, he immediately summoned Civil Surgeon who made arrangement for immediate operation. The injured was thereafter shifted to operation theatre where during treatment he expired. When the patient was brought to the hospital, he seemed very restless and upon inquiry made by the Medical Officer as to how this injury was caused to him, he in broken sentence stated 'Kharagam, Gala Koli'. Since the Medical Officer was first concerned with the treatment, he did not note down the history of the patient in case papers. However, later on i.e. after the death of injured person, he noted down the history in case papers. Since the weapon with which the injury was inflicted had remained in the body of Police Constable Rameshbhai, it was exactly not known then what type of weapon it was and at some point of time it was even felt that the weapon used by accused no. 1 was a small spear. However, when the weapon was taken out from the body of Rameshbhai, it became sure that it was Gupti and the said weapon was then packed and sealed by the Medical Officer and handed over to the police.

(3.) At the trial, the Ld. Sessions Judge, Amreli framed charge against the accused on 13/07/1992 for offences made punishable u/S. 333 read with section 114 of the IPC, section 302 read with section 114 of the IPC and also against accused no. 1 for committing an offence u/S. 135 of the Bombay Police Act. The charge was explained to the accused. They, however, denied the same and claimed to be tried. In support of its case, the prosecution examined following 9 witnesses :- (1) Dr. Kiranbhai K. Sagothiya P.W. 1 Exh. 17 (2) Dr. Bharatkumar M. Gadhvi, P.W. 2 Exh.24, (3) Ramajibhai Dayalbhai P.W.3 Exh.26, (4) Mohanbhai Mangalaji P.W.4 Exh.28 (5) Tulashibhai Madhabhai P.W.5 Exh. 29, (6) Kanubhai Haribhai P.W.6 Exh. 31, (7) Dhirubhai Ramajibhai P.W.7 Exh. 32, (8) Ranmalbhai Nathabhai P.W.8 Exh. 34 and (9) Jagvirsinh Sugarsinh Bhadoriya P.W.9 Exh. 39. Over and above this, the prosecution also relied on certain documentary evidence such as the FIR Exh. 36, case papers of deceased Rameshbhai Exh.20, medical certificate Exh.21, the post mortem report Exh. 25, inquest panchnama Exh. 42, the panchnama of scene of offence Exh. 33, etc.