STATE OF GUJARAT Vs. MER KARSHAN MULU

JUDGEMENT

(1.) This Criminal Appeal is preferred by the State against the judgment and order delivered by learned Additional Sessions Judge, District Junagadh at Porbandar, on 29th of April, 1986, in Sessions Case No. 30 of 1985, under Section 378 of the Criminal Procedure Code, 1973. All the three present respondents were accused in the said Sessions Case and were charged for the offences punishable under Sections 447, 341, 323, 324, 504, 302, 397, 201 to read with Section 113 and 34 of the Indian Penal Code as well as for the offences punishable under Section 25(1)(a) and Section 27 of the Indian Arms Act. The respondents were also charged for the offences punishable under Section 37(1) to read with Section 135 (1) of the Bombay Police Act. Vide judgment and order impugned in this Appeal, all the three respondents came to be acquitted by the Trial Court for all the charges levelled against them and, hence, this Appeal.

(2.) According to the prosecution case, the incident in question occurred on 5th of February, 1985, between 22.00 hours and 23.00 hours, in the field belonged to complainant, situated in the sim of village Bharvada. Ramde Samat - complainant and Narmad Samat - deceased in the incident, are real brothers and Samat Hamir happened to be their father. Other two witnesses Masari Narmad and Veja Narmad happened to be sons of deceased Narmad Samat. According to further prosecution case, this family was residing in the residence situated in their field in the sim of village Bharvada. At the time of incident, complainant Ramde Samat with his nephews Veja Narmad and Masari Narmad had been to their field for irrigating the agricultural land because they intended to sow crop of bajari. At about 10'O clock at night, Ramde Samat, Veja Narmad and Masari Narmad were doing agricultural work. At that time, three respondents accused came to their field, and out of them, accused No.1 Mer Karsan Mulu and accused No.2 Mer Balu Lakhman were identified by the witnesses, but accused No.3 was referred as unidentified person. Accused No.1 had spear with him, accused No.2 had an axe with him while accused No.3 (referred to as unknown person) had a spear with him. Accused No.1 as soon as he reached near Ramde Samat, gave a slap on his cheek. Ramde Samat asked that why a slap was delivered to him. Accused No.1 stated that he wanted Rs. 50,000/-. Ramde Samat thereupon replied that he did not have that much money with him. Thereafter, accused No.2 inflicted a blow of an axe on the waist of Ramde Samat by blunt side. Thereupon Ramde Samat had fallen down on the ground and accused Nos. 1 and 2 thereafter started dragging Ramde Samat out of field. At that juncture, accused No.3, who is referred all the while to be unknown person, gave three blows by spear on left hand of Ramde Samat. Veja Narmad, who was present at the field, ran towards their house to call his grandfather and father and thereafter immediately Samat Hamir, Raniben, and Narmad Ramde reached at the spot. Samat Hamir requested accused No.1 to let go Ramde Samat, but accused No.1 stated that he needed Rs. 50,000/- and on delivering that amount only he would let loose Ramde Samat. On further persuasion by Samat Hamir, etc accused No.1 got excited and inflicted a blow of spear on the stomach of Narmad Samat. Narmad Samat had fallen down on the ground and blood started oozing from his wound. In the meantime, Ramde Samat got himself freed and all the three accused started running towards waste land situated near their field. While all the three accused were escaping, accused No.1 took out a revolver from his shirt and fired a round in the air. All the three accused were speaking abuses while running away. Thereafter Ramde Samat as well as Narmad Samat were seriously injured, were shifted to their house situated in the field.

(3.) On reaching at their house, Samat Hamir called one Jivabhai at his field and one Kana Karna was also called at his field. Thereafter Jiva Nathu and Samat Hamir both went to the village at the house of one Mulu Nathu and narrated the incident. Bhura Natha and Mulu Nathu both came to the field of the complainant and thereafter Samat Hamir, Hamir Natha, Devshi Natha, etc also reached at the field. Injured Narmad Samat was shifted in a tractor and was taken to the government hospital, Porbandar. Injured Ramde Samat was also taken to the same hospital. Other persons including mother of the deceased accompanied them. When they reached Porbandar Government Hospital, Dr.Dilip Amrutlal Vyas, PW-6 treated them and informed Porbandar Police Station. According to the prosecution case, injured persons reached at the Government Hospital at 1.30 am. At 1.50 a.m. on 6th of February, 1985, Dr. Vyas informed Porbandar Police Station about the injured being brought to the hospital, and the then PSO of Porbandar Police Station Trikambhai Rambhai made entries in the station diary and Police Constable Jagannath Govinda PW-23 visited the hospital and he found that Narmad Samat was in serious condition and was not in a position to speak and Ramde Samat also was not in good condition. At about 5.00 a.m., Ramde Samat was conscious and therefore he recorded the complaint offered by Ramde Samat. He went to the Police Station at Porbandar and the complaint which he produced at Exhibit-68 was registered at 'Zero number' by Porbandar Police Station as the jurisdiction of the crime was of Bagavadar Police Station. At about 6.00 a.m. PSO Trikambhai Rambhai, by a special messenger, forwarded the above said First Information Report to Bagavadar Police Station, which was received by Bagavadar Police Station at about 10.30 a.m. Investigation thereafter was entrusted to Mansukhlal Ramjibhai Jeni, PW-25, at that time, serving as PSI of Bagavadar Police Station. The crime was registered initially under Section 307 of the Indian Penal Code as Crime Register No. 15 of 1985. Thereafter, a surgery was performed on injured Narmad Samat, but he succumbed to the injuries and died at 14.15 hours in the hospital and, therefore, the offence was converted to Section 302 of the Indian Penal Code.