HARIJAN BECHAR BADHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals arise out of the same judgment and order dated 7-4-1983 by the learned Additional Sessions Judge Rajkot camping at Gondal convicting three accused and acquitting eight out of the eleven accused in Sessions Case No. 43 of 1980 holding that the prosecution has failed to establish that all the accused were the members of the unlawful assembly and holding accused No. 2 Harijan Bechar Badha accused No. 6 Harijan Jetha Samant and accused No. 7 Naja Samant guilty for the offence punishable under sec. 302 of the Indian Penal Code for committing the murder of Harijan Dana Pitha. As three accused ate convicted they have preferred Criminal Appeal No. 423 and as the eight accused are acquitted the State has preferred Criminal Appeal No. 634 of 1983 against seven accused and has not preferred appeal against accused No. 11 Patel Parbat Bechar. .. .. ... ...

(2.) On 26-4-1981 in the morning Dana Pitha had gone to the market at Amberdi village and his son Ramji and other two sons had gone to the filed for labour work. Witness Uga Lakha had gone to the house of Dana Pitha as Danas wife Devuben considered him as his brother. On coming to know that Dana had gone to the market he also went to the market. Ramji son of Dana and his two brothers returned from the field at about 8.30 a. m and when they reached the outskirts of the village Ramji went home to leave the shovel and his two brothers went to the village market. While Ramji was going home he saw his father Dana and Uga Lakha proceeding towards home. After Ramji reached home and left the shovel within a short time he heard the shout of Uga Lakha that Dana was being caused hurt.

(3.) For going to the house of Dana Pitha situated in Harijan Vas at Amberdi village Dana and Uga were proceeding on the road on side of which cattle poudi is situated. That road is in the south-north direction and houses of accused No. 9 Kala Pitha and accused No. 10 Pala Pitha are situated towards the estern side of that road. On the western side nearby there are other houses. That road meets another lane proceeding in east-west direct on and in that lane house of deceased Dana is situated. Dana and Uga were proceeding to the house of Dana and when they passed by the house of Pala Pithas a stone was pelted by Pala Pitha from the terrace of his house which according to the prosecution hit deceased Dana. Immediately other accused rushed armed with weapons like Dharia axe pick-axe (Trikam) pipes and sticks from the Dela of accused No. 3 Gova Daya. According to the prosecution accused No. 1 Dhana Badha inflicted Dharia blow on Dana accused No. 2 Bechar Badha inflicted a pipe blow on the head of Dana and accused No. 6 Jetha Samant inflicted axe blows on Dana accused No. 7 Naja Samant inflicted pick-axe blow on deceased and the rest of the accused started causing injuries to deceased Dana with pipes slicks etc.