HIKHA JIVA GUJARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) INSTANT appeal is preferred under Sec. 374 (2) of the Code of Criminal Procedure, 1973, and is directed against the judgment and order dated 13th of October, 1999, rendered by learned Additional Sessions Judge, Junagadh, in Sessions Case No. 164 of 1996, whereby present appellant Nos. 1 and 2 came to be convicted for the orfence punishable under Sec. 302 of the Indian Penal code, while appellant Nos. 3 and 4 came to be convicted for the offences punishable under Sec. 302 to read with Sec. 34 of the Indian Penal Code. Each of the appellants was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- in default to undergo simple imprisonment of 30 days.

(2.) AS per the prosecution case, incident occurred on 10th of June, 1996, near the statue of Ambedkar at old bus-stand chowk, in the town of Visavadar, district - Junagadh, wherein Samat Sajan Charan died on account of injuries. On that day, deceased Samat Sajan and his brother P. W. 4 Pala Sajan, residents of haldarwa nesh (hamlet), came to village Visavadar to sell ghee and purchasing of house-hold things. Both these brothers reached Visavadar at about 8-00 a. m. and went to the shop of one Jagadishbhai Chandubhai to sell ghee. Thereafter, deceased Samat Sajan separated from his brother Pala Sajan and asked him to complete the purchasing, and that he (deceased) was going towards old bus-stand, and thereafter, he (deceased) wanted to go to Junagadh. Now, after the deceased and his brother Pala Sajan separated, complainant Oghad Pancha met deceased samat Sajan in the old bus-stand chowk. They exchanged pleasantry and talked about a plot of land, which was to be purchased by the complainant. In the meantime, one Kathi Jagubhai and forester Chavdabhai also came there and deceased suggested to take tea together. All of them took tea at the hotel of amubhai, and thereafter, complainant and deceased both went to see the plot of land and returned after about one and half hour. While when they reached at near new bus-stand, in the chowk of statue of Ambedkar, deceased was walking behind the complainant and heard beckoning shouts. When complainant looked behind, he found four persons, which turned out to be four appellants herein in t. I. parade, were beating Samat Sajan with axe ('farsi) and sticks. Jagubhai kathi, who was standing near, attempted to prevent the appellants, but in the meantime, all the four appellants started suddenly beating the deceased Samat. Out of four appellants, two were having axes and the two were having sticks. One of the appellants gave consecutive blows on the right side of the head and behind the ear of the deceased. The second appellant, who had an axe, also gave blows on the head of the deceased. It was turned out during investigation that accused No. 1-Hikha Jiva Gujaria and accused No. 2-Gogan Kalabhai had axes with them and accused No. 3-Harsur Vala Gujaria and accused No. 4-Gabha valabhai Gujaria had sticks with them. Accused No. 2-Gogan Kala Gujaria had also inflicted an axe blow on the lower part of the body of the deceased and attempted to extract an axe from the body of the deceased. He could not do it. P. W. 4-Pala Sajan, according to prosecution case involved to Lakhabhai Sidabhai gujaria, who was 5th accused and acquitted by the trial Court and he was saying that to kill Samat. It was also transpired from the prosecution case that the deceased was friend of complainant Oghad Pancha and they had relation for last five years. Wife of the complainant was made sister by the deceased. The cause of dispute was that daughter of one Charan Hikha Mandan was kidnapped by the deceased, and thereafter she was relieved, and therefore, for the last 15 years between these families, the enmity was continued. The complainant Oghadbhai pancha did not know the names of the accused at that time, but in T. I. Parade, he identified four accused to be the participating accused along with weapons attributed to them. During investigation, in all six accused were revealed and charge-sheeted. Accused No. 5-Lakhabhai Sidabhai Gujaria came to be acquitted by the trial Court by judgment and order impugned in this appeal and there is no appeal against the acquittal by the State. Accused No. 6-Valabhai Bhimabhai gujaria died during trial and trial was abated as against him.

(3.) ACCORDING to the further case of the prosecution, P. W. 17-Pradipkumar odhavji Bhatt was serving as P. S. I. Visavadar Police Station and was in patrolling. At that time, he received information that a murder is committed in the chowk of old bus-stand at Visavadar. Therefore, he immediately went to said chowk and found the dead body of the deceased lying in bleeding condition. Complainant Oghad Pancha was present at that time and he gave the complaint, which he produced on record at Exh. 53. The said complaint came to be recorded in Visavadar Police Station by P. W. 15-Jujarsinh Ramsinh Thakore, who was in-charge of police station. The complaint was forwarded by P. W. 17-Pradipkumar odhavji Bhatt to the police station. Investigation was entrusted to P. W. 17 and he arranged to draw the inquest panchnama and forwarded the dead body for the post mortem at Government Hospital. He also drew the panchnama of scene of offence and from the scene of offence, blood-stained earth was seized. He recorded the statements of witnesses Pala Sajan and Jagubhai Bhimabhai Khuman. One motorcycle belonged to accused No. 6 was found near the scene of offence was seized. The accused were arrested and the weapons were recovered from them. Since, the complainant Oghad Pancha did not know the accused, Test identification Parade was held on 13th of April, 1996 by P. W. 16-Vishalbhai rudabhai Bharvad, Executive Magistrate, Visavadar, wherein the present appellants were identified by the complainant Oghad Pancha. Therefore, charge-sheet came to be filed in the Court of learned J. M. F. C. , in all, against six accused. Out of the six accused, accused No. 1 died during trial and accused No. 6-Lakhabhai Sidabhai Gujaria was acquitted by the trial Court.