RAVJIBHAI MATHURBHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants herein were the accused before the learned Additional Sessions Judge, Bharuch, in Sessions Case No.18 of 1995, who came to be convicted for various offences by virtue of a judgment and order rendered on September 5, 1995, by the learned Additional Sessions Judge, Bharuch. The accused persons were tried and convicted for offences punishable under Sections 143, 147, 148, 302 read with Section 149 and 326 read with Section 149 of the Indian Penal Code. Rigorous imprisonment for three months, six months and one year was imposed on them for the offences punishable under Sections 143, 147 and 148 of I.P.C., respectively. They were ordered to undergo imprisonment for life and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonmment for six months for offence punishable under Section 302 read with Section 149 of I.P.C. and were ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 326 read with Section 149 of I.P.C.

(2.) As per the prosecution case, the incident occurred on September 2, 1994, at about 15.30 hours, at village Karmali, when the appellants are alleged to have formed an unlawful assembly with the common object of committing murder of deceased-Rameshbhai Bhagubhai Vasava and causing grievous hurt to his wife-Kamlaben Rameshbhai Vasava. It is further the case of the prosecution that the appellants, after forming an unlawful assembly and armed with Dharia, axe, stick, Dharia and axe, respectively, assaulted upon deceased Ramesh Bhagubhai and caused fatal injuries to him. During the transaction, they also caused grievous hurt to Kamlaben, wife of Rameshbhai. Immediately after the incident, Kamlaben went to her house, got her injury bandaged and rushed to the Police Station and lodged an F.I.R. implicating the appellants. On basis of the said F.I.R., offence was registered and investigation made. The police, having found sufficient evidence against the appellants, filed charge sheet before the learned Judicial Magistrate, First Class, who, in turn, committed the case to the Sessions Court, as the offences were triable, exclusively, by a Court of Sessions and Sessions Case No.18 of 1995 came to be registered. Learned Additional Sessions Judge framed charges against the appellants, at Ex.2, to which they pleaded not guilty and claimed to be tried. After considering the evidence on record, the learned Additional Sessions Judge came to a conclusion that the charges against the accused persons were established and, therefore, recorded conviction and awarded sentence as stated above. Aggrieved by the said judgment and order, present appeal is preferred.

(3.) The appellants were respectively accused Nos.1 to 5 before the Trial Court and, for the sake of convenience, they are addressed to as "the accused" in this judgment hereafter. Learned Advocate, Mrs. Unwalla, appearing for the appellants submitted that the case hangs on solitary evidence of Kamlaben, widow of Rameshbhai, examined at Ex.11. She submitted that, Kamlaben does not name the person who informed her about the incident. Mrs. Unwalla submitted that this witness could not have, in fact, witnessed the incident, if the time factor is considered. She further submitted that, Kamlaben heard shouts and, thereafter, she was informed by someone about the incident, whereafter, she went to the place. By that time, the incident ought to have been over and she could not have seen the actual infliction of injuries by any of the accused, as is claimed by her. Mrs. Unwalla also submitted that the motive is not correctly stated by the witness. Our attention was drawn to the Panchnama of place of incident to emphasis that the incident could not have been witnessed by this witness because of a thick line of Babool Trees. It was contended that Radhiben, who claims to have reached the place of incident soon after the incident, also could not have seen the incident. She is the mother of the deceased and, therefore, an interested witness and her deposition also ought not to have been believed by he Trial Court. Mrs. Unwalla submitted that witness-Lakhiben and Chhotubhai (Ex.19 and 18, respectively) have not supported the prosecution case. The learned Trial Judge, therefore, committed an error in not appreciating this witness in the prosecution case. It was, therefore, contended that the appeal may be accepted.