THAKORE RAJUJI MANGAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CRIMINAL Appeal No.1276 of 2004 is preferred by four brothers convicted of the offences punishable under sections 302 and 504 of the Indian Penal Code (IPC) as well as the offence punishable under section 135 of the Bombay Police Act and sentenced, inter alia, to life imprisonment in Sessions Case No.42 of 2003 which was decided on 10.6.2004 by learned Additional Sessions Judge, 3rd Fast Track Court, Patan; and CRIMINAL Appeal No.1579 of 2004 is preferred by the State from the judgment and order of the same Court in Sessions Case No.91 of 2003 whereby three accused persons were acquitted of the charge of offences punishable under sections 326, 323, 504 and 114 of IPC and section 135 of the Bombay Police Act. Both the sessions cases were cross-cases arising from the same incident wherein one Chaturji Bhavanji was killed in the early hours of 08.02.2003 at a public place near the residence of all the accused persons involved. In the judgment in Sessions Case No.91 of 2003, it is recorded as the basis of acquittal that the injuries suffered by Manojaji, an accused in the cross-case, were attributed only to the deceased and the other accused were implicated for taking the plea of self-defence. The acquittal appeal of the State from that judgment could not be seriously pressed in view of paucity of evidence on record about the alleged offences.

(2.) IN Criminal Appeal No.1276 of 2004, the case of the prosecution was that, when deceased Chaturji went out of his house in the morning to reach his shop of paan-beedi run in a cabin, his cries for saving him were heard by his nephews. When they heard the shouts, a sister of the deceased rushed to the spot and they found the four accused brothers, appellants herein, hurling words of abuse at the deceased and attacking him with knives, stick and pipe. Hearing the shouts, several other persons from the neighbourhood of the appellants' caste gathered at the spot with weapons. The victim Chaturji was taken to Sidhpur Government Dispensary from where he was transferred to Mehsana in an unconscious condition, and on his way to Mehsana, he breathed his last at around 09.15 a.m. The prosecution examined 12 witnesses in evidence and produced 20 documents, whereas the appellants relied upon deposition of the doctor (DW.1, Exh.64) who treated one of the appellants and his medical certificate (Exh.65). The defence of the appellant was to the effect that the deceased had attacked Manojaji with a knife and the deceased received injuries on account of Manojaji exercising his right of personal defence, even as none of the appellants entered the box or stated any detail of their version in their statements recorded under section 313 of Cr.P.C.

(3.) AS against the above arguments for the appellants in Criminal Appeal No.1276 of 2004, learned A.P.P. and learned counsel Mr.M.K.Patel, appearing for the respondent in Criminal Appeal No.1579 of 2004, submitted that the convicted appellants had carried out a planned attack on the deceased, without any provocation or sudden quarrel, and one of the assailants had cleverly and deliberately separated himself by admission into a private nursing home to set up the defence of attack upon him by the deceased. It was submitted that deposition of the defence witness (Exh.64) was wholly unreliable and rightly discarded by the trial Court so as to convict all the appellants for the capital offence of murder. It was also submitted that, even if the role and participation of Rajuji and Vadanji were not clearly established and it was not even alleged that they had inflicted any fatal injury with the arms attributed to them, their presence at the spot indicated common intention on the part of the assailants.