STATE OF GUJARAT Vs. SHYAM SHRIRAM KAHAR

JUDGEMENT

(1.) This Appeal is preferred by the State under Section 378 of the Criminal Procedure Code against the judgment and order delivered by Additional Sessions Judge, District - Baroda, on 2nd of August, 1985, in Sessions Case No. 154 of 1984.

(2.) According to prosecution case, the incident occurred on 9th of July, 1984 at about 8.45 p.m. in the area of Sursagar Lake where Sharada Talkies is situated. It is alleged that all the eight accused formed an unlawful assembly with a common object to commit murder of deceased Rashmikant Kanaiyalal Mehta and his brother Shaileshkumar Kanaiyalal Metha, and to fulfill the common object, accused No.1 with gupti, accused No.3 with pen knife, accused No.4 with razor and accused Nos. 6 and 8 with hockey sticks and pipes, attacked deceased Rashmikant Kanaiyalal Mehta and his brother Shailesh Kanaiyalal Mehta. According to further prosecution case, PW Shaileshkumar along with his brother Rashmikant Kanaiyalal Mehta, had been to watch movie, named as 'Kaidi' at Sharada Talkies at about 8.45 p.m. and they were standing near the booking window of the upper stall. Accused No.1 Shyam Shriram Kahar had been working as Booking Clerk of upper stall at that juncture and he came out and inquired from deceased Rashmikant that why had he come to see picture in Sharada Talkies. There was exchange of words between them and in the meantime accused Nos. 2 to 5 also reached there and started beating deceased Rashmikant with fists and kicks. Accused No.3 Kishor @ Killo Umajirao Baroker attempted to inflict a blow by knife, but deceased Rashmikant snatched the knife from accused No.3 and wielded the knife towards accused No.3, but the said blow landed on accused No.5 Parshram @ Paresh Kanaiyalal Kahar. On seeing serious trouble, Shailesh ran towards Prince Talkies while deceased Rashmikant ran towards Navrang Talkies and both of them in opposite direction. Accused Nos. 1 to 5 chased deceased Rashmikant and while Shailesh reached near public toilet of Prince Talkies, he noticed that his brother deceased Rashmikant was running near the building of Kurani Classes and accused Nos. 1 to 5 were chasing his brother. Accused Nos. 1 to 5 reached Rashmikant near the shop 'Chhotu Printing Works' and opposite that the brink of Sursagar Lake was situated. Rashmikant had fallen on the ground and thereafter all the five accused started beating Rashmikant with weapons which they had. Accused No.5 Parshram was standing there. Thereafter, all the five accused lifted deceased Rashmikant and threw him away in Sursagar lake. Shailesh further noticed that thereafter all these five accused i.e. accused Nos. 1 to 5 started coming towards him and, therefore, he ran from that spot. When he reached near Prince Talkies, he found accused Nos. 6, 7 and 8, who had hockey sticks and pipes with them and these three accused Nos. 6, 7 and 8 started beating Shailesh. A crowd was gathered and so these three accused ran away from the spot. Shailesh thereafter, in a rickshaw, went to the hostel where his friend PW Jayant Joshi was staying. According to further prosecution case, at about 5.00 a.m. on the next day, Shaileshkumar went to SSG Hospital for treatment and there he found that dead body of his brother Rashmikant was lying on one stretcher. He found that there were injuries on the body of his brother. He took his treatment and went to Raopura Police Station and gave complaint, which is at Exhibit-92. This complaint was registered at Raopura Police Station, vide Crime Register No. 563/84, for the offences punishable under Sections 147, 148, 149, 302, 201 of the Indian Penal Code and for the offence punishable under Section 135 of the Bombay Police Act. Investigation was handed over to the Deputy Superintendent of Police Mr. Thakur. In the meantime, accused No.5 Parshram had also received injuries in the said incident and according to the prosecution case, PW Kaushikbhai, friend of Parshram, took Parshram to the hospital for treatment on moped. Kaushikbhai had a tea stall. When they reached near Babajipura Police Station on way to hospital, Parshram narrated the incident to police there, but he was advised to go to Raopura Police Station for recording of complaint. Parshram was injured and it was necessary to take him to hospital, so PW Kaushikbhai brought him to the hospital where he was admitted. He also offered his complaint in the hospital, which was recorded by PW24 PSI Panchal, which is on record at Exhibit 104. Before recording of his complaint, Parshram had informed duty Constable and in turn the said duty Constable informed the Police Station, but that information was not in detail. PSI of Raopura Police Station Mr. Panchal visited the hospital and recorded complaint at Exhibit 104 as against the deceased Rashmikant and a crime was registered vide Crime Register No. 562/84 for the offence punishable under Section 324 of the Indian Penal Code. Deputy Superintendent of Police Mr. Thakur took the charge of investigation of Crime Register No. 563 of 1984 and investigated the offence. He recorded the statements of concerned witnesses and draw the panchnamas. He arranged the test identification parade for accused Nos. 6, 7 and 8 and ultimately a charge sheet against eight accused came to be submitted in the Court of Judicial Magistrate, First Class, Second Court, Baroda and was registered as Criminal Case No. 3749 of 1984 for the above said offences. The case was committed to the Court of Sessions and was registered as Sessions Case No. 154 of 1984. Vide Exhibit5, the learned Additional Sessions Judge, Baroda, framed charges against all the eight accused on 8th of April, 1985 and all the eight accused pleaded not guilty and, therefore, the prosecution tendered documentary evidence as well as 29 witnesses.

(3.) During pendency of the Appeal, it is found that respondent No.3 i.e. original accused No. 3 Kishor @ Killo Umajirao Baroker had died and, therefore, vide order dated 12th of June, 2007 passed by this Court, this Appeal stood finally abated as against respondent No.3 Kishor @ Killo Umajirao Baroker.