ASHOK SOMALAL THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both the abovereferred Criminal Appeals have arisen from the same judgment and order delivered by the learned Additional Sessions Judge, Narol on 19th April, 1986 in Sessions Case No.12/1986. There were in all nine accused and were charged with the offences punishable under Sections 148, 323, 307, 302 to read with Section 149 of the Indian Penal Code us well as for the offences punishable under Section 135 of the Bombay Police Act.1951.

(2.) Vide abovesaid judgment and order, the learned trial Judge acquitted all the nine accused for the offences charged against them so far as the offences punishable under Sections 302, 307, 148 and 149 of the Indian Penal Code is concerned. While, except accused No.1 - Ashok Somalal Thakkar and accused No.3 - Arvind Somalal Thakkar, all other accused also were acquitted by the Trial Court for the rest of the offences charged against said seven accused. Vide abovesaid judgment and order, accused No.1 was convicted for the offence punishable under Section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of nine months and to pay fine of Rs.1,000/-, in default, to undergo imprisonment of six months, while accused No.3 was convicted for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of two years and to pay fine of Rs.1,000/-, in default, to undergo imprisonment of six months. Accused No.1 and 3 as aforesaid were acquitted by rest of the charges levelled against them.

(3.) Against the abovesaid judgment and order, so far as the order of acquittal of learned trial Judge is concerned in respect of all the accused, the State has preferred Criminal Appeal No.765/1986, while accused No.1 Ashok Somalal Thakkar and accused No.3 Arvind Somalal Thakkar. both preferred Criminal Appeal No.602/ 1986 against the conviction of each of the accused as aforesaid. According to the prosecution case. deceased and victim of the incident is Bhailalbhai Madhabhai Patel, while injured is one Banesingh Vajesingh and one Rameshbhai. The incidents have taken in two parts, but as per the prosecution case, both the incidents have occurred in the same transaction and, therefore, the accused were charged in the same charge-sheet for both the incidents. According to the further prosecution case, deceased Bhailalbhai Madhabhai Patel and witness Jalaji Vajaji and other prosecution witnesses had enmity with accused persons and on account of that on 12th September, 1985 at about 9.30 a.m. all the accused formed unlawful assembly and with weapons like dharia, iron rod, sticks etc. first caused injuries to witness and complainant Banesingh Vajesingh near the houses of Gujarat Housing Board at village Chandkheda on I.O.C. Road and, thereafter, they chased the witness - Jalaji Vajaji and near double storied buildings of Gujarat Housing Board caused injuries to deceased - Bhailalbhai Madhabhai Patel, who died on 14th September, 1985 and caused injuries to witness Rameshbhai. The complaint came to be filed by witness Banesingh Vajesingh at Adalaj Police Station right after the incident. According to the further prosecution case, injured Banesingh Vajesingh were three brothers, out of them two were residing at village Chandkheda and to see his brothers, witness Bunesingh Vajesingh used to visit village Chandkheda about twice in a month and, therefore, he knew people residing at village Chandkheda. On the day of incident, he had been to Sabarmati at 8.30 a.m. for purchasing dhotis, and his brother - Jalaji Vajaji and one Vajubha Ramaji both had accompanied him. Vajubha Ramaji happened to be his cousin brother. After purchasing dhotis from Sabarmati, all these three persons were returning to village Chandkheda in one rickshaw. When their rickshaw reached near housing colony from the road of Railway Station and turned towards the housing colony, they noticed eight persons standing there, out of which Banesingh Vajesingh identified accused No. 1, accused No.3, accused No.4 and accused No.5. According to him, accused No.3, i.e. appellant - Arvind Somalal Thakkar had a dharia with him, accused No.4 had a knife with him, accused No. 1 and 5 had sticks with them, others had also sticks with them. According to him, he knew other accused, but not by name. According to the prosecution case, all those accused were standing near housing board colony. The accused halted their rickshaw and on rickshaw being stopped, his brother Jalaji Vajaji started running and witness Banesingh Vajesingh also started running after Jalaji Vajaji. At that time accused No.3, appellant - Arvind Somalal Thakkar inflicted one blow by dharia on the head of Banesingh Vajesingh and, thereafter, accused No.4 inflicted a blow with knife between the fingers of left hand and left leg of Banesingh Vajesingh. Remaining accused started beating Banesingh Vajesingh with sticks. He fell down on the ground and, thereafter, one Vajubha Ramaji and Anupsinh brought him to Adalaj Police Station where he gave complaint. According to the further prosecution case, while Banesingh Vajesingh was being attacked. Jalaji Vajaji ran towards the double storied building. He heard the accused uttering that they had intended to beat Bhailalbhai Madhabhai Patel and one Ramesh Babulal. According to the prosecution case, Banesingh Vajesingh had acquittance with Ramesh Babulal and Bhailalbhai Madhabhai Patel. The witness - Jalaji Vajaji overheard utterance of the accused and, therefore, he ran towards Bhailalbhai Madhabhai Patel to convey him that the accused were rushing to attack him and Ramesh Babulal. According to the prosecution case, chaising Jalaji, accused reached near double storied building at village Chandkheda where deceased Bhailalbhai Madhabhai Patel and other injured person Ramesh Babulal were standing. Reaching there, out of all the accused, accused No.1 inflicted a blow of stick on the head of deceased Bhailalbhai Madhabhai Patel. Accused No. 1 also inflicted one stick blow on the back of the Bhailalbhai Madhabhai Patel. It is the further prosecution case that Bhailalbhai Madhabhai Patel had fallen on the ground and all other accused inflicted sticks injuries on Bhailalbhai Madhabhai Patel. It is also the prosecution case that one other accused, i.e. accused No. 1 inflicted stick blow on the head of witness - Ramesh Babulal and accused No.2 Natubhai Jivram inflicted a slick blow on one eye of witness Ramesh Babulal. According to the prosecution case, when at about 10.30 a.m. Banesingh Vajesingh was offering his complaint before P.W.15 - Kanabharti Shivabharti, P.S.O. of Adalaj Police Station, the witness - Ramesh brought Bhailalbhai Madhabhai Patel at Adalaj Police Station and all the three were sent to hospital for further treatment. An investigation was handed over to Police Jamadar Jagdishchandra Ambalal Vyas, who is examined as P.W.16 and, thereafter, P.W. 17 - Lallubhai Harilal Desai, examined at Ex.66, investigated further and submitted the charge-sheet against all the accused in the Court of learned Judicial Magistrate, First Class at Ahmedabad (Rural), Ahmedabad. The case was committed and learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad framed abovesaid charges against all the accused vide Ex.4 on 7th March, 1986. All the accused pleaded not guilty and the prosecution tendered oral as well as documentary evidence.