THAKORE DASHRATHJI SHIVAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Instant Criminal Appeal under Section 374 of the Code of Criminal Procedure ('Code' for short) is directed against the judgment and order dated 7.12.1996 rendered in Sessions Case No.19 of 1996 by the learned Assistant Sessions Judge, Mehsana by which the appellants ('accused' for short) have been convicted for offences punishable under Sections 326, 325, 324 and 323 read with Section 114 of the Indian Penal Code ('IPC' for short) and sentenced to suffer R.I. ranging from 1 year to 8 years and also fine ranging from Rs.250/- to Rs.1,000/- and in default of payment of fine, R.I. ranging from one month to one year. All the accused have been sentenced as under: Accused No. Convicted under sections Sentence imposed Accused No.1 324 of IPC R.I. for 3 years and fine of Rs.500/- i.d., R.I. for one year. Accused Nos.2 & 3 326, 324 read with section 114 of IPC R.I. for eight years and fine of Rs.1,000/- i.d., R.I. for one year. Accused No.2 324 of IPC

(2.) The prosecution case as disclosed from the FIR and unfolded during trial is as under:

(3.) Mr. K.G. Vakharia, learned Senior Advocate with Mr. Tushar Mehta, learned advocate for the accused, contended that the incident took place on the night between 16.6.1995 and 17.6.1995. According to him, it was an incident of free fight between the complainant's side and the accused' side. It is highlighted by him that the presence of the accused at the scene of the incident was natural since they were residing at a distance of 100 ft. from the field of the complainant where the incidence occurred. It is also pointed out by him that the accused being agriculturists, it is but natural that they will be armed with dharia, axe or stick when they usually move in their field. It is also emphasized by him that A-1 received serious injuries of fracture of ulna and radius which prove that both the accused and the complainant injured each other on account of free fight which took place at the spur of the moment. It is also emphasized by him that the injuries on A-1, Dashrathji, has remained unexplained in view of the contradictions in the deposition of witnesses Jawanji, Chamanji, Kuriben, Hajaben and Rukhiben. According to him, Jawanji, in his examination in chief, has stated that Hajaben gave blow with dharia to Dashrathji. But in cross-examination he stated that his wife Rukhiben gave blow to Dashrathji. Witness Chamanji stated that his wife Hajaben gave blow with dharia to Dashrathji. Witness Rukhiben stated that she had given stick blow to Dashrathji. Witnesses Kuriben and Hajaben are totally silent on this point. Therefore, the said inconsistency leads to one conclusion that the witnesses were deliberately suppressing the facts as to how the injury was caused to Dashrathji. Relying upon the aforesaid evidence, it is submitted by Mr. Vakharia that legal position is clear that if the injury upon the accused remains unexplained, the accused are required to be acquitted. He, therefore, submitted that the accused may be acquitted of the charges levelled against them and the appeal may be allowed.