PATEL BACHUBHAI BHURABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE two appellants of this appeal challenge the conviction and sentence imposed by the Additional Sessions Judge, Junagadh in Sessions Case No. 63 of 1982 on 29 -9 -1982. By that judgment accused No. 1 was held guilty for the offence punishable under Section 323 of the Indian Penal Code and was sentenced to suffer simple imprisonment for 15 days and to pay a fine of Rs. 100/ - in default to suffer simple imprisonment for one month. He was also held guilty for an offence punishable under Section 447 I.P.C. but no separate sentence was passed. Accused No. 2 was held guilty for an offence punishable under Section 304 I.P.C. and was sentenced to suffer R.I. for seven years and to pay a fine of Rs. 1,500/ - in default to suffer R.I. for six months. He was also held guilty for an offence punishable under Section 447 and 323 I.P.C. and no separate sentence was inflicted.

(2.) THE prosecution case was that the incident occurred on 23 -2 -1982 in the outskirts of village Kerala in the field of one Dhirajlal Bhikhabhai at about 1 -00 P.M. At that time according to the prosecution case Dhirajlal was on his well and his father Bhikhabhai Somabhai was working in the field. Kadviben, mother of Dhirajlal was grazing the cattle on the river bed. At that time according to the prosecution case bullocks belonging to the accused entered the field of the deceased and they were driven out. Accused No. 2 came on the scene and there was exchange of words between accused No. 2 and Bhikhabhai. Thereafter accused No. 1 went back and he returned with a weapon known as Khappali. Accused No. 1 came with him and he had a stick. Thereafter accused No. 2 mounted an attack and he assaulted Bhikhabhai who raised cries. Because of the cries raised P.W. 4, Dhirajlal and P.W. 5, Kadviben came there. Accused No. 1 tried to prevent P.W. 4, Dhirajlal and caused him injuries with stick and also by throwing stones. At that time accused No. 2 also gave one blow to P.W. 4, Dhirajlal. Thereafter both the accused ran away. Bhikhabhai was brought to the panchayat office and ultimately was taken to Vadal for treatment. There his condition was found to be critical and he was removed to Junagadh. In Junagadh hospital he died at 9 -35 P.M. The Medical Officer sent information to Police Station and as a result entry was made which is Exhibit 46. The entry was to the effect that because of a fight (Mara -mari) Bhikhabhai Somabhai was admitted in the hospital for treatment. Now that entry was made at about 6 -45 p.m. After entry Exhibit 46 which was made at 6 -45 p.m. Kasam Ibrahim, Head Constable went to Junagadh hospital and he found Bhikhabhai Somabhai unconscious and, therefore, he recorded the complaint of Dhirajlal which is at Exhibit 17. He learnt that Bachu Bhura, accused No. 1 was also in the hospital and he was being treated and, therefore, he went to him and recorded his complaint as well which is Exhibit 44. Thereafter at 9 -35 p.m. Bhikha died and inquest panchnama Exhibit 20 was prepared. Head Constable Mansukhlal (P.W. 13) Exhibit 45 on the basis of the information received made an entry in Police station diary and ultimately it appears that P.S.I. Chavda took up the investigation and he prepared the panchnama of the place of the scene of offence and attached earth from that place. On 25 -2 -1982 when accused No. 1 was discharged from the hospital he arrested him and prepared the arrest panchnama, and attached his bloodstained clothes. On 26 -2 -1982 accused No. 2 was arrested and arrest panchnama was prepared. Thereafter he showed his willingness to produce Khappali which was attached under a panchnama. Thereafter he submitted a charge -sheet in the court. In due course the case came to be committed to the Court of Sessions and before the learned Additional Sessions Judge the prosecution examined 14 witnesses. The accused denied the guilt and accused No. 1 filed written statement Exhibit 49 and accused No. 2 filed written statement Exhibit 50. They did not lead any evidence in defence. Their case in the written statement was that they had kept the field of Ranchhod Bhura and the deceased and his son did not like and they cooked up a false case on the ground that the cattle had grazed in their field. Their further say was that the quarrel was started by Bhikha Soma and he had started an attack with a stick. First stick blow was given to accused No. 1 and accused No. 1 received injury on the finger and there was fracture and his clothes also became blood -stained. In those circumstances accused No. 1 sat at some distance. Thereafter Bhikha Soma deceased started giving blow to Amritlal, accused No. 2 and the blow was given on his leg and there was a fracture. Another blow was given to accused No. 2 on his head as a result there was bleeding. At that time accused No. 2 felt that he would be killed and, therefore, he whirled stick which he had and by whirling the stick if deceased received the injuries, the accused did not know.

(3.) NOW to establish the case so far as the prosecution is concerned, the prosecution mainly relied on the evidence of two witnesses, P.W. 4, Dhirajlal and P.W. 5 Kadviben. Now P.W. 4, Dhirajlal is the son of the deceased and he is the complainant who filed the complaint, Exhibit 17. In his evidence his version was that at about 12 -30 noon he was working on the machine which was fixed on the well and his father was working in the field. At that time bullocks of accused No. 1 entered their field and his father drove away the bullocks. Thereafter according to him, accused No. 2 came and there was exchange of words between accused No. 2 and his father. Thereafter according to Dhirajlal, accused No. 2 went to his field and he came back with accused No. 1. At that time accused No. 2 had brought Khappali and accused No. 1 had a stick and they both gave blows to his father and his father fell down. According to him he ran to that place and accused No. 1 threw the stones at him and he was injured. He was caught and accused No. 2 gave a blow on his head with Khappali and accused No. 1 gave blows by stones on his back and on his leg. Thereafter according to him one Bharwad (shepherd) passed from that place and he advised them to take Bhikha to some hospital, as a result he took his father on a bicycle to the village and informed about the incident to the Sarpanch and ultimately after consulting Sarpanch, on a motor -cycle his father was taken to Vadal where his condition was critical and thereafter his father was taken to Junagadh. This version is repeated by P.W. 5, Kadvi Exhibit 18 who is widow of Bhikhabhai. Now admittedly she was grazing cattle at a distance of more than 1000 ft. Though she tried to pose as an eyewitness it was more than clear that she did not see the incident but she came up immediately after the incident.