ABDUL GAFAR UMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) - In Sessions Case No. 42 of 1985 of Junagadh the present appellant and two other persons (arraigned as the accused Nos. 2 and 3 in the Case) stood charged with having committed the offences under sections 326 and 323 both read with section 34 of the I.P.C Code, or in the alternative with having committed the offences under sections 326 and 323, both read with section 109 of the I.P.C. Further, in the alternative, the appellant (Original accused No.1 of the case) was charged with having committed an offence under section 326 of the I.P.C Code and the original accused Nos. 2 and 3 were charged with having committed an offence under section 323 of the I.P. Code. The appellant also faced a charge under section 135 of the Bombay Police Act. The particulars of the charge leveled against the appellant and the original accused Nos. 2 and 3 were that, at about 4.45 p.m. on 22-2-1985, at village Keshod, in furtherance of their common intention, the appellant voluntarily caused grievous hurt to P.W. Rafiqbhai Mohmedbhai with a dharia and the original accused Nos. 2 and 3 voluntarily caused hurt to P.Ws. Majidbhai Mohmedbhai and Rashidbhai. The alternative charge was based on the allegation that the appellant and the original accused Nos. 2 and 3 had abetted one another in the commission of the offences. It was also alleged that, at the relevant time, the appellant having carried a dharia in a public place and having thereby contravened a notification issued by the District Magistrate of Junagadh prohibiting carrying of arms in public place, had committed the offence punishable under section 135 of the Bombay Police Act.

(2.) At the end of the trial, however, the learned Judge has acquitted the original accused Nos. 2 and 3 altogether while he has convicted the present appellant only of the offence under section 326 of the I.P. Code and sentenced him to suffer five years R.I. for the same. In the present appeal the appellant challenges this order of conviction and sentence recorded against him.

(3.) Briefly stated, the prosecution case, as revealed from the F.I.R. which was lodged on the same day by the injured P.W. Rafiqbhai Mohmedbhai and the other investigation papers, was as follows. He himself and P.W. Majidbhai Mohmedbhai and P.W. Rashidbhai Mohmedbhai are full brothers and they reside at village Keshod with their father, Mohmedbhai Umarbhai. The appellant Abdulgafar is the full younger brother of Mohmedbhai Umarbhai. Mohmedbhai Umarbhai, and the appellant have agricultural lands belonging to the appellant bears survey No. 181 and there is also a farm-house on this land. Somewhere in 1974 or thereabout, the appellant contracted marriage with the original accused No.3 Jayshreeben who is a Hindu divorcee-lady. The original accused No.2 Babulal alias Narbheram Pragji is the father of this Jayshreeben. The name of the wife of the accused No.2 Babulal is Jayaben. After his marriage with the accused No.3, the appellant shifted to village Chiloda in Gandhinagar District and has set up a business there. He resides at Chiloda with the wife, that is, the original accused No.3 and his father-in law that is the original accused No.2. His mother-in-law, the deceased Jayaben, was also residing with these persons at Chiloda. Since the appellant went away to settle down at Chiloda, his lands, including survey No. 181, were cultivated by his brother Mohmedbhai and, in consideration thereof, Mohmedbhai was paying a flat amount of Rs. 4,000/- per year to the appellant. In June, 1984, the appellant executed a Banakhat in favour of his brother Mohmedbhai agreeing thereby to sell his portion survey No 181 together with the farmhouse standing thereon for a consideration of Rs. 1,13,000/- out of which an amount of Rs. 10,000/- was paid to the appellant at the time of the Banakhat as earnest money. The remaining amount of Rs. 1,00,000/- was agreed to be paid by 2 1.2.1985 and the appellant was then required to execute a sale-deed for the property and to hand over possession of the property to Mohmedbhai as the owner thereof. On 20-2-1985, the appellant, along with his father-in-law (accused No.2) and his wife (accused No.3) and his mother-in-law Jayaben, went to Keshod with the idea of getting from Mohmedbhai the remaining consideration amount and executing sale-deed in favour of Mohmedbhai. However, Mohmedbhai did not have sufficient funds to make the payment to the appellant and thereupon a settlement was arrived at between the two whereby time for payment of the amount of Rs. 50,000/- was extended upto 2.3.1985 and time for payment of the remaining amount of Rs. 53,000/- was extended upto 2-4-1985 and it was agreed that the necessary sale-deed should be executed thereafter. Despite this settlement, the appellant, accompanied by the other two accused and his mother-in-law Jayaben, went to the field survey No. 181 at about 4.45 pm. on 22-2-85 while P.Ws. Majidbhai, Mohmedbhai Rafiqbhai Mohmedbhai and Rashidbhai Mohmedbhai and Mohmedbhai's Bhagiya, P.W. Kasamkhan Ahmedbhan, and Kasamkhan's two sons Hasan and Hasam were working in the field. The appellant told the aforesaid three brothers that he did not went to sell the land to them and asked them to vacate the land forthwith. Thereupon Majidbhai and his two brothers told the appellant that they would not vacate the land. At that, the appellant dealt a dharia blow to P.W. Rafiqbhai Mohmedbhai and hit him thereby on his head causing a fracture of the head-bone. The other three companions of the appellant, i.e. the original accused Nos. 2 and 3 and the appellants mother-in-law Jayaben, gave stick blows to the three brothers, P.W. Rafiqbhai Mohmedbhai tried to resist the attack with a stick which he had with him. The three brothers and Kasambhai and his sons then ran away from the field and thereafter the three brothers went to the Government dispensary at Keshod. P.5.1. V.V. Vaja (P.W. 8) recorded the F I.R. lodged by P.W. Rafiqbhai Mohmedbhai at the dispensary at 6.30 p.m. and registered a crime against the appellant and the original accused Nos. 2 and 3 as also the appellants mother-in-law Jayaben. It appeals that, in the Course of the same incident, the appellant himself had also sustained injuries and his mother-in-law. Jayaben had sustained a stab- wound in the abdominal region and had scurried to the said injury on the same day in the Civil Hospital at Junagadh. It further appears that a cross-information was recorded for that part of the incident also. Investigation was carried out by P.S.I. Shri Vaja in both cases and in the present matter the appellant and his wife and the father-in-law were charge-sheeted while in the cross matter the aforesaid three prosecution witnesses viz. Majidbhai, Rafiqbhai and Rashidbhai were charge-sheeted.