MOMNA BABU JAMAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Five accused persons including the present three appellants came to be charged and tried for the offences punishable under Sections 143 147 and 148 and also for the offences punishable under Sections 323 and 325 read with Section 149 of the Indian Penal Code. Upon the trial the learned Additional Sessions Judge convicted the present appellants who are the original accused Nos. 2j 4 and 5 and acquitted the original accused Nos.1 and 3 from the charges against them. Appellant No.1-original accused No.2 is sentenced to suffer rigorous imprisonment for six months for the offence punishable under Section 323 of the Indian Penal Code. Appellant No. 2 original accused No. 4 is sentenced to suffer rigorous imprisonment for 3 years for the offence punishable under Section 325 of the Indian Penal Code. Appellant No.3 original accused No.5 is sentenced to suffer rigorous imprisonment for six months for the offence punishable under Section 323 of the Indian Penal Code. He is also sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 325 of the Indian Penal Code. Therefore the original accused Nos. 2 4 is 5 who are the appellants herein have questioned the legality and validity of the conviction and sentence order passed against them by the learned Additional Sessions Judge in Sessions case No. 39 of 1985 by invoking the aids of the provisions of Section 374 of the Criminal Procedure Code 1973 (Code for short).

(2.) The incident out of which two Sessions Cases arose took place on 5-12-1984 at about 8.30 a.m. at village Haripur. In that the prosecution alleged that one Desa Deva and his wife Amri Desa were staying at village Haripur and they had constructed a house in which they were living at the relevant time. They had five sons. Appellants Nos. 2 and 3 who are the original accused Nos. 4 and 5 were staying in village Haripur and accused No. 5 was the Sarpanch of that village at the time of the incident. According to the version of the prosecution in the morning on the day of the incident Parshottam and Vira had gone to the house of their father to request him to sent Rajshi for the purpose of watering their crops as Parshottam had to go out of his house for the treatment of his wife. Rajshi was sent there and Vira returned from his fathers house and just had gone to the bazar to purchase pan. Parshottam continued to sit at the house of his father. It was alleged that at that time six persons came there with arms. It was alleged that original accused Nos. 1 2 and 3 were armed with sticks and accused No. 4 was armed with iron pipe. P.W. 1 Vira Desa the complainant has a Vandi (compound wall) which original accused No. 5 Muradali Punia wanted to demolish for making way for going to the other side of the village. It was objected by Desa. Thereafter there was altercations between them. It is the prosecution case that the accused persons thereafter started giving blows on the injured persons and they were removed to the hospital for treatment where the First Information Report was lodged by Vira Desa. Father of the complainant Desa had also sustained fractures. This is the sum and substance of the story of the prosecution case.

(3.) According to the defence version there was Khad near the compound wall of the complainant Vira Desa and they had reason to demolish the said compound wall. The accused persons further contended that they had constructed a wall near the Khad about ten days before the incident and a part of that wall was demolished by the father of the complainant i.e. Deva. Thereafter they had sent original accused Nos. 1 2 and 3 to reconstruct the said part of the wall with stones. It was objected by Desa Deva. Therefore it is the contention of the defence that while in the process of reconstruction of the said wall near the Khad the accused persons were attacked and they were severely beaten and as such on account of the assault one Jiva Punja sustained fatal injuries.