STATE OF GUJARAT Vs. GOPALDAS KALIDAS HARIJAN

JUDGEMENT

(1.) The respondents who will hereinafter be referred to as Tthe accused were tried before the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 30 of 1980 for offences punishable under section 302 read with section 34 Indian Penal Code, section 323 read with section 109 Indian Penal Code and also accused No.1 further for the offence punishable under section 135(1) of the Bombay Police Act and acquitted of the same. The said order of acquittal is challenged by the State by filing this appeal.

(2.) The facts as alleged by the prosecution may be briefly stated. The complainant Kantibhai Bapubhai, P.W. 4, has a brother by name Ashokbhai Bapubhai, P.W.5, Ex. 25, Champaben, the deceased was their mother. Champaben bad originally married with Bapubhai and after his death, she married Himatlal Parsottam about 15 years back. Himatlal is the younger brother of the-said Bapubhai. Champaben was staying with her husband Himatlal in panghat Society, Block No.7, Room No. 13 for the last about 15 years. The complainant Kantibhai and his brother Ashok were also staying with their parents: One Ramjibhai is another brother of Himatlal. He is residing in the front portion of the house, while Himatlal is residing in the rear portion of the house. Accused No. 2 and 4 are brothers, accused No.1 is the son of accused No.4. Accused also reside in the same society. Accused No.4 has a daughter named Jashi. There was some love affair between Jashi, the daughter of accused No.4 and the complainant Kantibhai. It appears that Jashi used to give smile on seeing Kantibhai, which was not liked by the accused. They beat the complainant by giving him fist and kick blows and also stick blows. The complainant lodged a complaint with Dariapur Police Station, but at the intervention of some persons, a compromise was arrived at between them. The complainant, however, then went to stay at the place of his maternal uncle from 14-10-1979 or thereabout. The present incident in which Champaben died took place on 7-12-1979. On the day, the complainant Kantibhai came from Khokhra Mehmadabad for doing his work as a sweeper. He came to Panghat Society to see his mother at about 11.30 A.M. He took his meals and was about to leave. Accused Nos. 1, 2 and 4 started abusing him and asked him why he had come there. The complainant thereupon ran away from that place and was going to the house of his sister Lalita: P.W. 28, who is staying in the Police Lines nearby. The complainant Kantibhai was going out through a small bole in the compound wall of the Police Lines and at that time accused No. 2 gave a stick blow to him whereupon Champaben, the mother of Kantibhai, came in the meanwhile and she lifted Kantibhai and pressed his head and asked him to go away as otherwise, the accused would beat him. Accused No.1 tried to give a knife blow to Kantibhai but instead of striking the complainant, it struck to his mother Champaben. Kantibhai thereupon called his brother Ashok who was playing outside and sent him to the Police Station. The Police did not turn up and, therefore, Kantibhai himself went to the Dudheshwar Police Chowki where he was told that the police van would come. He, therefore, returned home. In the meantime, the police van came and took Ashok, Kantibhai and the deceased Champaben to the Civil Hospital. The doctor found that Champaben had died. The post mortem was performed on the dead body of Champaben and the police after necessary investigation submitted charge-sheet against all these four accused to the Court of the Metropolitan Magistrate, Ahmedabad for the above offences. The learned Metropolitan Magistrate committed the accused to the Court of Sessions for trial according to law- The learned Additional City Sessions Judge framed charge at Ex. 2. All the accused were charged for the offences punishable under section 302-read with section 34 as also section 323 read with section 34 Indian Penal Code and in the alternative, accused No.1 was charged for the offence punishable under section 302 Indian Penal Code and the rest under section 109 Indian Penal Code. Accused No I was further charged under section 135(1) of the Bombay Police Act, in that he was in possession of a knife in contravention of the notification issued by the Police Commissioner. The accused pleaded not guilty to the charge framed against them. They denied that they had beaten the complainant or the deceased. Accused No.1 stated in his statement under section 313 of the Criminal Procedure Code that Jayantibhai, accused No.3 was coming from the Pan-Galla after taking pan and the complainant Kantibhai attacked him with a pen knife and Jayantibhai caught hold of the pen-knife whereby he was injured on his hand. tie further stated that another blow was given to him and when the third blow was given to him, Champaben came to intervene and at that time he moved aside and hence the blow instead of striking him struck Champaben whereby Champaben was injured, which injury resulted in her death. Accused No.2 Kalidas stated that he was not present at the time of this incident and he did not know anything. Accused No.3 Jayantibhai stated that when he was returning from the Pan-Galla, the complainant Kantibhai gave a knife blow to him and he caught hold of the pen-knife whereby he was injured and, when another blow was given, accused No.1 Gopalbhai came and he was injured and when the third blow was given, it struck Champaben, the mother of Kantibhai. He further stated that they i.e., the accused also went to the Police Station to give complaint. Accused No.4 Maganbhai stated that he did not know anything and he was innocent:

(3.) The learned Additional City Sessions Judge, after appreciating the evidence recorded before him, came to the conclusion that the prosecution evidence was not reliable and hence it was unsafe to base a finding of guilt on the same against any of the accused. The learned Judge accordingly held all the accused not guilty of the offence with which they were charged and acquitted them of the same.