HARSHAD ALIAS HASMUKH BHANABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals arise out of common judgment and order recorded by the learned Additional Sessions Judge, Rajkot, in Sessions Case No. 143 of 1989 passed on 24-4-1992, and raise the question as to whether the culpability of the appellant-original accused No. 1, Harshad @ Hasmukh Bhana, held to be proved under Sec. 302 of the Indian Penal Code (I.P.C.) and acquittal of original accused No. 2, respondent No. 1 in Acquittal Appeal No. 773 of 1992, Kishore @ Uyo Bhana, from the charge of murder of one young deceased. Anil Gora Makwana. in an incident, which occurred on 5-10-1989, in the evening about 6-00 to 6-30 p.m., and therefore, they are being dealt with, simultaneously, by this common judgment.

(2.) Criminal Appeal No. 388 of 1992 is filed by original accused No. 1 (A- 1) whereas. Criminal Appeal No. 773 of 1992 is filed by the State questioning only the acquittal of respondent-original accused No. 2, Kishore @ Uyo (A-2) and acquiesced in case of original accused Nos. 3 and 4. Therefore, out of the four accused persons, only two, A-1 and A-2 are. before us, in these two appeals and, whereas, the State has chosen not to question the acquittal of original accused No. 3, Tulsi Bhana and original accused No. 4, Kalu Kala. Initially, there were four accused persons out of which original accused No. 1 has questioned his conviction by filing Criminal Appeal No. 388 of 1992, whereas, original accused No. 2's acquittal has been questioned by the State in Criminal Appeal No. 773 of 1992.

(3.) Obviously, a skeleton spectrum of relevant and material facts, leading to the rise of this group of two appeals need narration, at this stage. On 5-10-1989, in the evening at about 4-00, deceased Anil Gora, went to the residence of his father-in-law, situated, near Mafatiapara, in Ambedkar Nagar, in the city of Rajkot, in a rickshaw to see his minor daughter who was with his wife. who was, on account of strained matrimony was sheltering, at her father's place. After seeing his daughter and sitting for a while in the house, the deceased started going back his home around 6-30 to 7-00 p.m. in the said rickshaw. He was driving rickshaw No. GRP-289. When his rickshaw reached near Survoday Society. A-1. Harshad @ Hasmukh Bhana and A-2. Kishore @ Uyo. who are real brothers, came in a rickshaw, from the opposite direction. They attacked on the running rickshaw of the deceased. A- 2. who was armed with an axe, attacked the frontal of the rickshaw with the help of axe he held, as a result of which, deceased stopped the rickshaw and no sooner the rickshaw came to be stopped, then, accused No. 1, Harshad @ Hasmukh Bhana, who was armed with knife inflicted blow on the right side portion below, arm-pit and also on the abdomen. Accused No. 2, Uyo, who had held axe also attempted to blow (sic.) on the person of the deceased with the help of axe which was saved and warded off by the deceased by raising his left hand, as a result of which he sustained injury on his left hand. There were two other persons, at the time of attack, who held the hair of the deceased. Original accused No. 3, Tulsi Bhana. is also the brother of A-1 and A-2. Original accused No. 3, Tulsi Bhana, and original accused No. 4, Kalu Kala. came after the rickshaw came and they had also contributed in and abetted the common intention to kill deceased. Anil Gora. Thus. the deceased had sustained injuries due to infliction of knife and axe blows. The prosecution has also ascribed, deep-seated, motive for commission of the culpability by the accused persons. In that, it has been alleged that the wife of the deceased, PW 5. Geeta and the accused No. 1, Harshad had affairs and illicit relationship, as a result of which, in the month of April 1989, the deceased attempted to punish. A-1. Harshad. by inflicting knife blows. Thus. the motive for the commission of the crime in question, is alleged to be the illicit relationship between, PW 5 Geeta, and A-1 Harshad. The deceased who had sustained serious injuries was taken to the Civil Hospital, at Rajkot, by one Bhikha Khoda in a rickshaw, where, he was admitted in the emergency ward for medical treatment. After seeing the seriousness of the injuries and the medico-legal case. the doctor who examined him. immediately, communicated to the duty police constable of the Police Chowky, situated in the hospital premises, itself. On being summoned, the police constable, on duty. reached to the hospital before whom, upon inquiry, the deceased made an oral dying declaration. PW 15, Govind Moti, was the Head Constable before whom the deceased made an oral dying declaration about the incident which came to be reduced to writing in the hospital police chowky register, as a cognizable offence entry, which came to be communicated to the Head Constable, in charge of City "B" Division Police Station, who is PW 16, and thereafter PW 17. C. V. Sonara, Police Inspector started investigation. Upon completion of the investigation, accused persons came to be charge-sheeted for having committed offences under Secs. 302 and 324 read with Sec. 34 and in the alternative read with Sec. 114 of I.P.C. over and above under Sec. 135 of the Bombay Police Act in the Court of Chief Judicial Magistrate, Rajkot who remitted and committed the matter to the Sessions Court, at Rajkot. for trial in Sessions Case No. 143 of 1989 arising out of C. R. No. 280 of 1989. Four accused persons were charged by the Sessions Court on 3/02/1990 for offences under Sec. 302 read with Sec. 34 or under Sec. 302 read with Sec. 114, 427, 324 of I.P.C. and Sec. 135 of the Bombay Police Act to which accused persons denied and claimed to be tried.