STATE OF GUJARAT Vs. BHAGWANJI KARU BORECHA

JUDGEMENT

(1.) State of Gujarat is before this Court being aggrieved by judgement and order dated 1st July, 1991 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 56 of 1990. The learned Additional Sessions Judge was pleased to acquit accused- Respondents No. 1, 2, 3, 4 and 6 (appeal qua Accused No. 5 has abated vide order dated 19th October, 1993 as he has expired) for the offence under Sections 143, 147, 148 and 302 of the Indian Penal Code read with Section 149 of the IPC and Section 135(1) of the Bombay Police Act.

(2.) The case of the prosecution as narrated in Para 2 of the judgement is that the deceased-Suleman Alias 'Pagal Aiyub' lent an amount of Rs. 10,000/- to Accused No. 1 -Bhagwanji Kalubhai, one of the accused persons, and the said amount was frequently demanded by deceased-Suleman from Accused No. 1. In this connection, Accused No. 1 had called deceased-Suleman to Village 'Amaran' by saying that this amount would be given to deceased-Suleman at Village Amaran. But on the day of the incident in question, viz. the day subsequent to Holi (Dhuleti), the accused persons of this case having joined together came by jeep near S.T. Bus Stand in Village Amaran. The accused persons armed with iron pipes, scythes and axes descended from the jeep and out of the accused persons, Accused No. 1 came hurling expletives into the hotel of the complainant-Dhiru Popat and asking, "Where is Pagal?" Therefore, at this point of time deceased-Suleman Alias Pagal who was sitting in the hotel of the complainant- Dhirubhai Popat started running away from there. Accused No. 1 thereupon ran after him and Accused No. 1 and other accused persons surrounded deceased- Suleman Alias Pagal behind the S.T. Bus Stand and as Accused No. 1 armed with a pipe inflicted a pipe blow to deceased-Suleman; consequently he fell down. Thereafter, the other accused persons armed with axes, scythes and pipes gave blows to deceased-Suleman. At this time, other persons of the village had also gathered there. At the time of this incident, the witnesses Husainmiya Miyabhai and Shabbirhusain Ahmedbhai advised the accused not to beat him in this manner. But the accused persons warned them not to intervene, hence no person ventured to reach there. Thereafter, the accused persons having beaten deceased-Suleman Alias Pagal in this manner, embarked on the jeep and went away from the place of the incident. After departure of the accused persons the Police Head Constables, Shri Muljibhaiand Shri Umedsinh arrived at the place of incident within a short time and on deceased-Suleman being asked by them, deceased-Suleman stated that "the accused Bhago and his brothers have beaten him". Thereafter, as the condition of deceased-Suleman was serious, Head Constable, Shri Muljibhai suggested to take deceased-Suleman to the hospital at Morbi for treatment, therefore, witnesses-Ahmedmiya Alimiya, Abumiya, Bavabhai and Abbashusain Bukhari took deceased-Suleman to hospital at Morbi by a taxi but deceased-Suleman expired on the way. The deceased could not be admitted in hospital at Morbi, his body was brought to village Amaran. Thereafter, body of deceased-Suleman was sent for postmortem to the Government Hospital, Jodiya but as there was no facility of Medical Officer, postmortem of deceased-Suleman was performed in Irvin Hospital at Jamnagar. In the meanwhile, as the Investigating Officer in this case, PSI, Shri Rakeshkumar received information about this incident, he had returned to Village Amaran on the day of incident and after going there, he had taken over the charge of the investigation of this case. He has taken the complaint of the complainant-Dhirubhai Popat and he has recorded statements of witnesses-Shabbirhusain Ahmedmiya, Husainmiya Miyabhai, etc. and he has drawn the Inquest Panchnama of the dead body of deceased-Suleman Alias Pagal. As he has stated earlier, "his dead body was first sent to the hospital at Jodia for postmortem and thereafter it was sent to Irvin Hospital at Jamnagar. Thereafter, he has recorded statement of Jaitunben, wife of deceased- Suleman and Jusab Suleman, the son of deceased. He has made interrogation of the accused persons and as the accused persons were not found, he returned after 12.00 o'clock at night and recorded statements of other witnesses in the morning, that is to say, on the next day of the incident. On 12.03.1990, Panchnama of the place of incident was drawn. Thereafter, as the accused persons. of this case have surrendered in the Police Station at Jodia, they were arrested and iron pipes and handle of scythes were seized from them. Thereafter, on completion of investigation, charge-sheet against the accused persons of this case was filed before the Court of learned Judicial Magistrate, First Class, Jodia. As the court of the learned JM (FC), does not have jurisdiction to try this case, the case was committed to the Sessions Court, Jamnagar.

(3.) The accused did not plead guilty and opted for trial. The prosecution examined the following witnesses to establish their case. <FRM>JUDGEMENT_3679_TLGJ0_2012_1.html</FRM>