RAMESHBHAI MOHANBAHI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants along with one accused-Kanubhai Bijalbhai came to be tried by Sessions Court, Bharuch, for offences punishable under Sections 147, 148, 149 of Indian Penal Code (à ¢ ¬SI.P.C.à ¢ ¬Ãƒ 1/2 for short); 147, 148, 149 read with Sections 302, 307 and 34 of I. P. C. as well as for offences punishable under Sections 302 and 307 of I. P. C. and Section 135 of the Bombay Police Act in Sessions Case No.240 of 1996. The Sessions Court, by judgment and order dated 20th August, 1999, acquitted original accused No.5-Kanu Bijal disbelieving his presence at the time and place of incident. The Sessions Court, however, convicted accused Nos.1 to 4 (present appellants 1 to 4) for offence punishable under Section 302 read with Section 34 of I. P. C. and sentenced all of them to imprisonment for life and a fine of Rs.500/- payable by each of them, in default, to undergo simple imprisonment for one month. The Sessions Court also convicted original accused Nos.2, 3 and 4 (present appellants 2, 3 and 4) for offence punishable under section 324 read with section 34 of I. P. C. and sentenced them to undergo rigorous imprisonment for three months and, hence, this appeal.

(2.) The prosecution story, in brief, is that the incident in question occurred on 26th July, 1996, at about 14.45 hours in the outskirts of village Bhimpor, in the field of Mohanhai Upalabhai Vasava. It is alleged that, while deceased-Ashwinbhai Simonbhai and Amarsing Mohanbhai were returning to village, the appellants intercepted them and committed assault on Ashwin Simon where accused No.1 (A1) inflicted a blow with axe on shoulder of Ashwin. Ashwin, therefore, started running. As per the prosecution case, the acquitted accused-original accused No.5(A5), Kanu Bijal, was waiting near the field on his motorcycle and he instigated the accused persons to see that Ashwin Simon does not escape. It is the case of the prosecution that, thereafter, appellants 3 and 4 Ã ¢ ¬ Manubhai Mohanbhai and Bhayaji Muljibhai, respectively, committed assault on the deceased with stick, as a result, the deceased fell down. At that point of time, appellant No.2-Manilal Mohanbhai inflicted a blow with an axe on neck of the deceased causing a fatal injury. Witness-Amarsing Mohanbhai was also assaulted upon where appellant No.2 caused head injury to Amarsing with an axe whereas appellant No.4 caused injuries on leg and head of injured Amarsing and accused No.3 (appellant No.3) caused hurt on wrist of Amarsing.

(3.) The Trial Court accepted version of the eye-witnesses that because of rains on the day of incident, it was not possible to ply motorcycle near the place of incident and, therefore, disbelieved the case of the prosecution about presence and instigation by original accused No.5-Kanubhai Bijalbhai and recorded his acquittal.