KARSAN MANDAN CHUDASAMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal arises out of a judgment and order rendered by Sessions Court, Amreli, in Sessions Case No. 12 of 1995 on 13th April, 1999. The appellants were accused before the Trial Court. They were arraigned for the offence of murder of one Dhirubhai Jivabhai, son of Jivabhai Karnabhai (P. W. 3 ). According to the prosecution case, the roots of the incident lied in an incident that had occurred exactly one year prior to the present incident. The present incident occurred on 4. 11. 1994, at about 7. 00 A. M. in the field of one Cheena Teja of village Chhara of Taluka Kodinar. Incidentally, that day happened to be the New Year day according to Indian calendar and, as per the prosecution case, in an incident that had occurred on the previous New Year day, deceased-Dhirubhai Jivabhai and others committed murder of the father of appellants Nos. 2 to 5. 1. 1 According to the prosecution case, on the day of the incident, deceased-Dhirubhai Jivabhai went to attend to nature's call in the outskirts of the village, near the pond. While proceeding to answer nature's call, Arshi Naran and Karsan Lakha also joined him for the very purpose. Around that time, the accused persons were seen proceeding in the same direction with axe in their hands by Rana Naran and Jaswantsing Bhavsing. Rana Naran, therefore, went to the house of deceased-Dhirubhai Jivabhai and informed his father, Jivabhai Karnabhai, that the accused persons have gone towards the pond with axe in their hands to attack Dhirubhai Jivabhai. Jivabhbai Karnabhai, therefore, immediately rushed towards the pond along with Bhikha Rama, Ukha Masri and Rana Naran. Upon reaching near the pond, they noticed all the accused persons assaulting the deceased with axe and then fleeing from the place on seeing them. The incident was also witnessed by Arshi Naran and Karsan Lakha, who had followed the appellants. According to Arshi Naran, when the deceased saw the appellants rushing towards them with axe in their hands, he started running northbound from where they were sitting near the pond. The appellants started chasing him. The deceased could run about two to three fields when the appellants closed in to him and appellant-Karsan Mandan inflicted an axe blow on head of Dhiru Jiva, as a result of which he fell down. Rest of the appellants immediately surrounded Dhiru Jiva and assaulted him with axe in their hands. Arshi Naran and Karsan Lakha tried to intervene and rescue the deceased, but appellant-Natha Punja intimidated them by showing a knife and telling them that, if they intervene, they would also be done to death. They, therefore, stopped at a distance. In the meantime, Dhiru Jiva's father, Jivabhai Karnabhai, in company of Bhikha Rama, Ukha Masri and Rana Naran came there and, on seeing them, all the appellants escaped towards village Damli. On reaching the spot, Jiva Karna found his son lying dead. He, therefore, went to police, at Kodinar, to lodge an F. I. R. He was asked to prepare a written information, which he did with the help of some petition writer and lodged the F. I. R. at 8. 30 A. M. On the basis of that F. I. R. , offence was registered and investigation was initiated. The police reached the spot, prepared Panchnama of place of incident and Inquest Panchnama, recorded statements of witnesses, sent the dead body for post-mortem and collected requisite information. The accused were arrested and weapons were discovered by them. The weapons discovered were sent to F. S. L. for examination. On receipt of the report from the Serologist of the F. S. L. , it was found that clothes of the accused and the weapons discovered by them contained blood of the group of the deceased, i. e. group "b". The police, therefore, filed charge sheet in the Court of J. M. F. C. , Kodinar. Since the case was triable exclusively by the Court of Sessions, the case was committed to the Sessions Court at Amreli, as Kodinar fell under that Sessions' Division at the relevant time and Sessions Case No. 12 of 1995 came to be registered. 1. 2 The charge against the appellants was framed at Exhibit 1. The accused-appellants pleaded not guilty to the charge and claimed to be tried. 1. 3 The prosecution led the evidence. The defence was that of total denial and false implication. On the basis of the evidence led by the prosecution, the Sessions Court came to a conclusion that the prosecution was successful in establishing charges for the offences punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. The Sessions Court also concluded that charge under Section 506 (2) of I. P. C. was proved against accused-appellant No. 3-Nathabhai Punjabhai. The Sessions Court, however, sentenced them to undergo imprisonment for life for the principal offence and did not pass any separate sentence for the other offences. Aggrieved by the said judgment and order, present appeal is preferred by the original accused-convicts.

(2.) WE have heard learned Advocates, Mr. Tirmizi, appearing for appellants Nos. 1 to 4 and 6 and Mr. Kaushal Pandya, appearing for appellant No. 5 and learned Additional Public Prosecutor, Mr. K. T. Dave, for the respondent-State. We have also examined the record and proceedings before us.

(3.) THE case pleaded on behalf of the appellants by the learned Advocates is that the Trial Court committed an error in not appreciating the fact that the prosecution evidence is self-contradictory and inconsistent; that the witnesses are interested witnesses; that all the eye-witnesses are not examined, though available; that the witnesses could not have seen the incident as they are claiming because of the distance as well as obstructions in the form of a row of babul trees; that the witnesses do not give details of individual role or overt act to any of the accused; and that the motive which is alleged is only an eye-wash and there is no concrete evidence in support of the alleged motive. 3. 1 It is contended that names of the appellants are not disclosed in the F. I. R. and that involvement of all the appellants is not emerging from the F. I. R. There is inconsistency between the F. I. R. and the evidence of first informant, Jivabhai Karnabhai. It is also contended that though Arshi Naran is examined, Karsan Lakha, who also claimed to be an eye-witness to the incident, has not been examined by the prosecution and he has been deliberately kept back. The Sessions Court ought to have considered these aspects before recording the conviction. If all these factors are considered collectively, they would at least render the prosecution case doubtful and, therefore, benefit of doubt, if not a clean acquittal, ought to have been recorded by the Sessions Court. The F. I. R. given to the police is the result of deliberations, consultation and premeditation. The appeal, therefore, may be allowed.