KESHU BADHU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Keshu Badha and 7 others, by this Appeal have brought under challenge the impugned judgment and order dated 30-6-1987, rendered in Sessions Case No. 110 of 1986, passed by the learned Additional Sessions Judge, Bhavnagar, wherein on their coming to be tried for the alleged offences punishable under Secs. 302, 323, 147, 148, 149 and 114 of the Indian Penal Code were ultimately convicted for the same and sentenced to the imprisonment for life, and other minor punishments. 1.1. It may also incidentally be further stated that pending hearing and final disposal of this appeal, the appellant No. 6 Jivraj Keshu died on 26-12-1989, regarding which the Death Certificate issued by Bhavnagar Municipal Corporation has been produced on the record, and accordingly his appeal stands abated by this time.

(2.) In substance, according to the prosecution, the alleged incident in question wherein Mulji Raja was done to death and other two persons, viz., PW-5 Raja Bhikha and his wife PW-2 Bhaniben came to be injured, who happen to be the father and mother respectively of the deceased Mulji took place on 18-5-1986 at 2-15 P.M. in the Chawl of Mahalaxmi Mills at Bhavnagar, when Keshu Badha and his 7 associates armed with lethal weapons like sword, dharia, sticks and pipes, formed an unlawful assembly and with common object mounted deadly attack upon Mulji Raja and the two injured persons, namely, PW-2 and PW-5 bringing about the death of one and injuries to two others. Further, according to the prosecution, this incident was eye-witnessed in all by five prosecution witnesses, they are PW-1 Nanji Patta, PW-3 Magan Ganda, PW-4 Premji Harji, PW-2 Bhaniben, and PW-5 Raja Bhikha; the last two being the injured witnesses. The prosecution case, as it gets further unfolded from the evidence of PW-1 Nanji Patta (the original informant) is to the effect that he was having his house in Mahalaxmi Mills Chawl and also having a Pan-Galla under the name "Kailash Pan House" near his house. On 18-5-1986, when he was just proceeding towards the said Pan Galla, Mulji Raja who happens to be his cousin-brother came to his shop for taking MAVA (Pan-masala). At that time, a group of about 8 persons came from the opposite direction armed with different weapons, wherein accused No. 1 Keshu Badha and accused No. 8 Jesing Trikam were armed with dharia, while accused No. 2 Premji Malji, accused No. 5 Nagji Vashram, accused No. 6 Jivraj Bhada were armed with iron pipe, while accused No. 3 Meghji Jetha was armed with sword, while the rest of the accused No. 4 Jivraj Keshu, and accused No. 7 Dinesh Malji were armed with sticks. On seeing this group of 8 persons menancingly rushing towards him, Mulji Raja to save his life ran towards his house. He was chased by all the eight accused persons, and at the place near the Otta of one Usmanbhai, (not examined) the accused No. 1 overtaking him gave a dharia blow on the left shoulder of Mulji Raja, and thereafter, all other accused persons started attacking him at random with whatever weapons they had in their respective hands, as a result, Mulji Raja started bleeding and dropped unconscious on the ground. At that time, out of the said 8 accused persons, one of them exhorted the others by saying "Nanji is standing here. Finish him". Hearing this, according to this witness Naji Patta, he too ran towards his house to save his life and informed his father about the incident in question. Thereafter, he and his father returned to the scene of the offence. At that time, Premji Patta (not examined), PW-4 Premji Harji and PW-3 Magan Ganda had already arrived at the scene of the offence. On reaching the scene of offence, he saw his uncle PW-5 Raja Bhikha lying bleeding from his head injury and his aunt PW-2 Bhaniben was also found lying there with the blood oozing out of the hand. Thereafter, after about five minutes on PW-6, Aatabhai Bhikha on coming to the place of offence, he was informed about the incident. Further, when they reached near the scene of the offence, all the accused persons were still standing. Thereafter, all the three injured, viz., Mulji Raja, Bhikha Raja and Bhaniben were removed to the hospital. According to Nanji Patta, the incident in question took place because of the political rivalry which arose out of the election of Bhavnagar Municipal Corporation, wherein on the one hand accused No. 1 Keshu Badha and on the other hand PW-6, Aatabhai Bhikhabhai uncle of the deceased Mulji Raja, were the rival candidates and Keshu Badha lost the election. It is because of this heart-burning and resultant bad blood that the present incident took place. On the basis of these allegations, Nanji Patta filed F.I.R. (Exh. 87), which came to be recorded at "A" Division Police Station, Bhavnagar, for the aforesaid alleged offences. After the investigation was over, the accused persons came to be charge-sheeted before the Sessions Court at Bhavnagar, to stand trial for the aforesaid alleged offences.

(3.) At trial, the respondents pleaded not guilty and claimed to be tried. In his statement under Sec. 313 of the Code, in particular, according to appellant-accused No. 1 he was staying in Chawl of Mahalaxmi Mills since his birth and was conducting 'Bal Mandir' there. Further, since Khimji Raja (brother of the deceased Mulji Raja) and others were having a liquor-den in his locality, with a view to see that the children of his area do not come under the bad influence of liquor, he had requested Khimji Raja and others to stop the said illegal activity. Further, according to appellant No. 1 as he was often getting raided the houses of Khimji Raja and others, was an eyesore in the eyes of opponents. On the date, time and place of the incident in question, when he was going to his maternal uncle's house, at that time, Mulji Raja and some ten other people were found sitting on the bench of 'Kailash Pan House' and they immediately surrounded him and started beating. On his raising shouts, appellant No. 2 Premji Malji came rushing, whereupon the said persons also started beating him, as a result of this, the persons residing in the vicinity came running with the arms and collected there and because of them only, he and Premji Malji were saved. Further, according to appellant-accused No. 1, several cases have been filed against the prosecution witnesses and in support of this defence version, he has also examined two defence witnesses, viz., (1) DW-1 Jiva Tida, and (2) DW- 2 Hasmukh Mansukh, who happens to be Police Constable at "A" Division Police Station, and has produced on record the Crime Register showing various offences under the Prohibition Act and other Acts registered against the deceased Mulji Raja, Raja Bhikha and others. Virtually on the same lines as that of the appellant-accused No. 1, accused No. 2 Premji Malji has given his statement.