KOLI TRIKAM JIVRAJ Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In sessions Case No. 3 of 1966 Shri D.A. Desai Sessions Judge Bhavnagar convicted the appellants for having committed an offence punishable under secs. 394 326 read with sec. 34 and sec. 324 of the Indian Penal Code and sentenced them for an offence under sec. 394 of the Indian Penal Code to suffer rigorous imprisonment for 7 years No order of sentence was passed in respect of offences punishable under sec. 326 read with sec. 34 and sec. 324 of the Indian Penal Code

(2.) The prosecution case was that one Bhikha Sukha was a resident of village Khakhoi Taluka Botad District Bhavnagar. Bhikha Sukha had purchased vadi land bearing S. No. 60 admeasuring 75 bighas and situated in the said village. Bhikha Sukha has no child. He has a sister who was married to one Premji Prag who originally resided in village Ugamedi. Premji has four sons. After Bhikha Sukha had purchased the vadi land he brought his brother-in-law Premji Prag and his four sons to village Khakhoi and they settled in the said village. Dharamshi and Talshi 2 elder sons of Premji were cultivating this vadi land. In the cultivating season of 1964-65 Premji Prag and his sons had raised Juwar Sugar cane chillies and cotton crops in the different portion of the said survey number. The cotton crop was raised in an area of about 14 bighas which was situated on the southern boundary of the vadi land. There was a hedge on the southern boundary of this field Premji Prag and his sons had also raised wheat crop in a tank in the village Bhimdad. Suvery No. 60 abutted on the boundary of the revenue limits of village Bhimdad. Premji Prag bad dug a water channel from the well in the field upto the tank and the point where the channel passed through the fence there was an opening in the hedge. Premji had engaged one Chhagan Devji as an agricultural servant since 2 years. Dharamshi Talshi and Chhagan Devji were sleeping in the vadi during the night to keep a watch on the crop. On the date of the incident i.e. on the night between 3rd and 4th December 1965 Dharamshi Talshi and Chhagan were sleeping in the field. Near the well there was a small shed. Chhagan was sleeping in the shed while Dharamshi and Talshi were sleeping out side in the field. At mid-night time Dharamshi Talshi and Chhagan woke up on hearing the barking of a dog. Dharamshi and Talshi went running in the direction from which they heard the sound. They came near the southern boundary of the field near the cotton crop. They saw one man standing near the opening of the hedge. On seeing Dharamshi and Talshi that man came near them and gave a blow with a stick to Talshi. Talshi fell down on the ground. At that time the appellants and 4 other persons were plucking cotton from the cotton crop and on seeing Dharamshi and Talshi they ran to wards them and bet Dharamshi and Talshi. Dharamshi had a dharia with him and Talshi had 8 spade with him. Dharamshi and Talshi also hit the accused with their respective weapons. Dharamshi and Talshi fell on the ground. The accused and his companions ran away from the place of the incident. Chhagan Devji came near the injured persons. He helped Talshi to get up and Dharamshi Talshi and Chhagan went near the well. On the way Chhagan asked Talshi as to what had happened and Talshi replied that the appellants and other accused had come to commit theft of cotton crop and that he had identified 4 of them. He gave the names of the 4 accused as Titku Laghra Moti and Naja. Chhagan made Talshi to sit on a cot and ran to the village to inform Bhikha Sukha and Premji Prag. He informed Bhikha Sukha and Premji Pragji that thieves had entered his field to commit theft of cotton crop and that they had caused injuries to Dharamshi and Talshi. Bhikha Sukha came to the vadi on a horse back. Dharamshi informed him in the vadi that 6 kolis of Dhankania village had come to commit theft and caused them injuries. Chhagan and Premji also came to the field. Chhagan yoked the cart and Dharamshi and Talshi were removed in the cart by Bhikha and Sukha to Botad Hospital They reached Botad Hospital at 6 a.m. and the injured were admitted in the Hospital. The Medical Officer sent a telephone message to Botad Police Station and informed the Police Officer-in-charge of the Police Station that two persons from Khakhoi had been admitted in the Hospital. Police Head Constable F. R. Zala who was in Charge of the Botad Police Station on receiving the telephone message from the Medical Officer Botad directed Police Head Constable N. B. Zala to investigate into the matter. So Head Constable N. B. Zala went to the Hospital and contacted Dharamshi and Talshi. Before he reached the Hospital Talshi Premji bad died. Mr. Zala recorded a complaint of Dharamshi Premji and sent it to the Police Station for registering the offence. After some investigation Mr. N. B. Zala left the Hospital at about 11-30 a.m. It was further the case of the prosecution that the appellants who were accused Nos. 1 and 2 respectively came to the Hospital and they were also admitted therein. The Medical Officer sent information to the Police Station that two Kolis of Dhankania village with the history of assault had been admitted in the Hospital. Mr. F. R. Zala was the Officer in charge of the Police Station. He directed Police Constable Mr. Gohil to go to the Hospital and to inquire into the matter. Mr. Gohil went to the Hospital and recorded a complaint of accused No. 1 and sent it to the Police Station for registering an offence at the Police Station. Mr. N. B. Zala who was investigating into the complaint filed by Dharamshi want to the village Khakhoi and carried out the investigation at the place. Mr. Gohil after recording the complaint given by accused No. 1 had also gone to Khakhoi for investigation. Mr. N. B. Zala had handed over the Investigation to Police Sub- Inspector B. T. Sama who also took over the investigation from Mr. Gohil and the investigation in both the cases thereafter was carried on by Police Sub-Inspector Sama on these allegations the appellants along with other 3 accused were charged for having co-jointly committed a dacoity and in commission of such dacoity caused murder of Talshi Premji and thus having committed an offence punishable under sec. 396 of the Indian Penal Code. They were also charged that during the course of commission of the robbery they had caused hurt to Dharamshi Premji and thus committed an offence punishable under sec 394 of the Indian Penal Code. The accused were alternatively charged for having committed an offence punishable under sec. 302 read with sec. 34 of the Indian Penal Code. The accused were also charged for having committed an offence punishable under sec. 324 read with sec. 34 of the Indian Penal Code for causing injury to Dharamshi.

(3.) The defence of the accused No. 1 was that he had not committed any offence and he did not go to the vadi of Premji Pragji at the time of the commission of the offence. On the night of occurrence his bullock had gone away from the vadi land and therefore he and accused No. 2 went out in search of the bullock at night. They went in search of the bullock within the revenue limits of village Khakhoi. When they were passing though one field two persons came there beat them and both of them fell down on the ground. He did not know who those persons were and he did not beat them as he was not armed with any weapon. He denied to have committed theft of cotton crop from the vadi of Premji Pragji. He also denied that he filed a complaint before the police in respect of injuries which he received on that night. He also denied that any Police Officer contacted him in the Hospital. He stated that the contents of the complaint Ex. 27 were false and that a false complaint had been got up by the police to involve him in the case.