JAGDISHBHAI BABUBHAI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these appeals are preferred against the judgment and order dated 24.10.2008 passed by Additional Sessions Judge, Court No. 4, Ahmedabad City in Sessions Case No. 211 of 2000 and allied matters. By the impugned judgment, accused No. 2-Mahipalsinh Ajabsinh Chauhan is held guilty for offence under Section 324 read with Section 34 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for three years with fine of Rs. 10,000/- and, in default of payment of fine, he was ordered to undergo further simple imprisonment for one month, he is also held guilty for offence under Section 302 of IPC and ordered to suffer rigorous imprisonment for life and to pay fine of Rs. 25,000/- and, in default of payment of fine, further simple imprisonment of one year was imposed. Being aggrieved by it, this accused has preferred Criminal Appeal No. 2807 of 2008.

(2.) The facts in brief giving rise to the filing of present appeal are as under:

(3.) Mr. Y.S. Lakhani, learned Senior Advocate appearing for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that the trial Court has seriously erred in appreciating the evidence on record and misdirected its judgment inasmuch as the crucial witnesses, who are referred to in Exh. 147, page 2141, and who have immediately taken to the Civil Hospital have not been examined in the present case. He submitted that the employee, who was suspended on the previous day has filed a complaint by keeping grudge against the accused persons. He submitted that after the incident, the injured was taken to the hospital which is 15 kms. away from the place of the incident, whereas one of the largest hospital of the State is just 2 kms. away from the place of the incident. He also submitted that not only that another hospital of the local authority is just 3 kms. away from the place of the incident and the injured is taken to a hospital which is near to the union office and the complaint is lodged after some delay, though the police inspector was present at the site and a constable was also injured in the incident, whose statement was recorded in the cross-complaint. He submitted that the injured police personnel are also not examined in the present case and the prosecution has failed to bring on record the true version of the incident. He submitted that material facts are suppressed and the prosecution has tried to twist the case against the present appellants. Mr. Lakhani has taken us through the evidence of PW-3, Ramesh Chana Rathod, Exh. 76 and has tried to point out that the story put forward by the prosecution has been dislodged by the defence in the cross-examination of this witness. This witness has stated that his brother was suspended by the management on the day prior to the incident. This witness has also stated that in the past cases were filed against his brother for attacking other labourers and the labour officers of the company, who are accused in the present case. Therefore, he submitted that with a view to take revenge with such persons, the complainant has filed a false complaint against them. Mr. Lakhani has also taken us through the panchnama of the scene of offence, which was drawn immediately after the incident and it is clear therefrom that there was industrial unrest and members of two rival unions were present when the incident had occurred. He also submitted that since an employee was suspended on the previous day, members of the management have been made accused to take revenge of the action of suspension. He has also taken us through the evidence of PW-20, Bharatkumar S. Shukla-PI, Exh. 190 and contended that this Police Inspector has clearly admitted that the statement of a constable and other witnesses, which were recorded in the cross-complaint were not recorded in the present case. In view of all these, Mr. Lakhani submitted that accused Nos. 10, 11 and 12 have not played any role in the offence and they have been wrongly implicated in the present case. He further submitted that these accused persons being in the management of the company had tried to salvage the situation and they have acted only with a view to save the property of the company and they were wrongly convicted by the complainant in the present case to take revenge. He has also taken us through the evidence of PW-16, Dr. Dhaval Bhavsar, Exh. 154, who has examined the complainant. This doctor has stated in his evidence that the complainant had received simple injury and he was discharged immediately after treatment. He has also taken us through the evidence of PW-10, Dr. Anupsinh Hiraji Thakore, who had examined 15 workers. This witness has stated that these workers had sustained simple injuries. This witness has also stated that there was no consistency in the statements of these workers so far as weapon used in the offence is concerned. These workers have stated different story and one of the worker even could not recognize the security man properly. Therefore, taking into consideration all these aspects and statement of other witnesses, Mr. Lakhani contended that the prosecution has failed to prove its case against any of the appellants and the trial Court has committed an error in convicting them.