SURJAN UKHADIYABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The sole appellant (original accused No.3) has preferred this appeal under section 374 of the Code of Criminal Procedure, 1973 (in short Sthe Code ) challenging the judgement and order dated 26.2.1999 passed by the Learned Additional Sessions Judge, Valsad, Camp Navsari, in Sessions Case No.84 of 1996, whereby the appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code, 1860 (in short the IPC) and sentenced to imprisonment for life and a fine of Rs.3000/- and in default to undergo two years imprisonment. The appellant has further been convicted for the offence punishable under section 324 IPC and sentenced to rigorous imprisonment for two years and a fine of Rs.1000/- and in default to undergo three months imprisonment. It has been further directed that the both the sentences shall run concurrently.

(2.) The case of the prosecution is that the first informant Kanubhai Singabhai Gamit had lodged a complaint with the Vaghai police station that at about 5:30 in the evening on 3.3.96, he, along with Kunverji Jivu, Suresh Manu and Devram Akhatiya had gone to Chunilal Khandu -s shop near the Jhavda bus-stand where they sat together and had sodas and stayed for about an hour. Thereafter the four of them set off to go their village and were walking on the road passing in front of the Jhavda Bus stand. When they reached behind the cabin, Surjan Ukhadia Gamit (the appellant herein), Rajnikant Surjan Gamit and Karsan Kalujya Konkani, who were hiding behind the Forest Department saplings, came there. Amongst them, Surjan Ukhadiya had an axe in his hand, Rajnikant Surjan had a stick in his hand and Karsan Kalujya had a dharia in his hand. At that time Surjan struck Kunverji Jivu Konkani (hereinafter referred to as Sthe deceased ) who was walking ahead of them, on the head with an axe, whereupon he asked him Suncle what are you doing but he did not say anything and continued to assault Kunverji. Thereafter Rajnikant Surjan dealt a stick blow on the head Suresh Manu Konkani who was coming behind them and Karsan Kalujya struck him on the head with the dharia whereupon his head started bleeding. Karsan Kalujya also struck him on the head with the end of the dharia injuring him near the left ear. Meanwhile Rajnik Surjan also struck Devram Akhatubhai of their village, who was coming behind them, on the head with the stick that he was wielding. At that time his father Akhatu Janubhai intervened to rescue him and put his hand across whereupon, Surjan Ukhadia Gamit struck him on the palm of his right hand with the axe resulting in the palm being cut and his hand started bleeding heavily. At that time Kunverjibhai and Sureshbhai fell down in a profusely bleeding condition, whereupon Khimchand Dhedha Konkani of their village came there with a gun in his hand and threatened to kill all of them. Consequently he was afraid that they would kill him also, hence he ran towards his home through Bavaji -s sugarcane and went to Kunverji -s house and informed his father and then went to Suresh -s house where his wife Marliben was present and told her that Suresh had been injured. He was coming along with her to the scene of occurrence, when they met Suresh on the road, coming from the opposite side. He had been injured on the head and was bleeding hence, he and Suresh -s father Manu Radku as well as Shukkar Kunverji of their village together went to Rustomji Bavaji -s place and requested him for his jeep to take the injured to the hospital. At that time Kunverji -s wife and his family members were crying hence, it appeared that Kunverji had expired. They seated Suresh and Akhatu Janu in the jeep and along with Dhanji Ukhadiyabhai Gamit, Police Patel of their village took them to the Vyara Referral Hospital for treatment, where both the injured were admitted for treatment. On inquiring at the hospital, it was learnt that as the incident had taken place within the limits of Vaghai Police Station in Dang District, they would have to go there to lodge the complaint. Hence, he went directly from Vyara to lodge the complaint.

(3.) The First Information Report was lodged on 4.3.96 at 7:00 hours and was registered as Vaghai Police Station I C.R. No.18/96 for the offences under sections 302, 307, 324, 323, 502 and 34 IPC, section 25 (c) of the Arms Act and section 135 of the Bombay Police Act. After registering the offence, Babulal Chedilal Sharma, P.S.I. took charge of the investigation. He held inquest on the dead body of the deceased in the presence of panchas and drew panchnama Exh.12. Thereafter he drew panchnama of the scene of offence (Exh.22) in the presence of panchas. From the scene of offence, the Investigating Officer collected steel strips, two bamboo sticks, control earth and bloodstained earth and a pair of slippers. He thereafter recorded statements of witnesses. He went to the Vyara Hospital and seized the bloodstained clothes of injured Suresh Manu in the presence of panchas. On receiving the post mortem report, the same was kept in the investigation file. The bloodstained clothes of another injured, Akhatu Janu, were seized from Surat Civil Hospital in the presence of panchas. The accused were arrested on different dates and arrest panchnamas were drawn in the presence of panchas. As there was sufficient evidence against the accused, J.C. Patel (P.S.I.) had submitted charge sheet in the court of the learned Judicial Magistrate First Class, Vansda-Ahwa, at Vansda, which was registered as Criminal Case No.112/96. In all there were six accused persons.