NATUBHAI BHUDARBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two criminal appeals are directed against the judgment and order dated 22/11/1989 passed by the learned Additional Sessions Judge. Surendranagar in Sessions Case No. 61 of 1988 whereby the learned Additional Sessions Judge has convicted accused No. 3 Natubhai Bhudarbhai tor the offence under Sec. 302 of the Indian Penal Code. as also under Sec. 25(1)(c) of the Arms Act and Sec. 135 of the Bombay Police Act and he has been sentenced to undergo life imprisonment and fine of Rs. 10.000.00 and in default, to undergo further imprisonment for a period of three years. Out of this amount of Rs. l0,000.00 a sum of Rs. 5,000.00 is ordered to be paid to the widow or the eldest child of the deceased Talsi Gangaram. The appellant-Natubhai Bhudarbhai has been sentenced to undergo rigorous imprisonment for a period of three months for the offence under Sec. 25(1 )(c) of the Arms Act and Sec. 135 of the Bombay Police Act. All the sentences have been ordered to run concurrent. The learned Sessions Judge has also convicted the accused Bhudarbhai Mohanbhai under Sec. 25(1 )(c) of the Arms Act and Sec. 135 of the Bombay Police Act and he has been sentenced to undergo one month's rigorous imprisonment. It has been ordered that the accused who were in jail since 19/05/1988 shall be given benefit of the period for which they have remained in jail during the course of the trial. By the very same order dated 2 2/11/1989. other accused persons, namely, Bhupat, Ishwar, Raghunath and Raghu Manu have been acquitted.

(2.) The appeal against conviction has been preferred by Natubhai Bhudarbhai, i.e.. Criminal Appeal No. 849 of 1989 and the State of Gujarat has preferred appeal against the order of conviction (sic: acquittal) of Bhudarbhai Mohanbhai for the offence under Sec. 302 read with Sec. 34 and Sec. 114 of the Indian Penal Code. i.e.. Criminal Appeal No. 77 of 1990. There is no appeal against the acquittal of the other accused persons. Whereas both these criminal appeals arise from the same incident and the same impugned judgment and order passed by the learned Additional Sessions Judge in Sessions Case No. 61 of 1988. both these appeals are decided by this common judgment and order. It may also be pointed out that a Criminal Revision Application No. 7 of 1990 had also been preferred by the complainant Mahadevbhai Laljibhai against the accused Bhudarbhai Mohanbhai, Bhupat Bhudarbhai and Ishwar Raghunath and Raghu Manu and on 29/01/1995, it was ordered by the Division Bench of this Court that this Criminal Revision Application No. 77 of 1990 may be placed on Board for final hearing along with these two criminal appeals but, from the record, we find that on Criminal Revision Application No. 77 of 1990. the Division Bench had already passed an order on 25/04/1990 that no order in view of the order passed in the appeal filed by the State and. therefore, nothing more is required to be done on this revision application. Although, Mr. H. D. Vasavada had appeared on behalf of the original complainant and in view of this Court's order dated 25/04/1990, revision application is treated as disposed of.

(3.) The case arise out of an incident dated 17/05/1988 which took place near village Devcharadi of Dhrangadhra Taluka. District Surendranagar Police Station. Dhrangadhra. With regard to this incident which took place at 6-30 p.m. on 17/05/1988. the complainant Mahadev Valjibhai filed F.I.R. at Police Station, Dhrangadhra on the same day at about 10-00 p.m. alleging that he was coming from his farm on that day and Talsi Gangaram had gone to receive his son who had gone with the cattle at the cattle camp to Prangadh. At that time, Natubhai Bhudarbhai and Bhupat Bhudar of village Devcharadi came from the road- side and Bhudar Mohan and Ishwar Raghunath came from the side of the village tank. Bhupatbhai Mohanbhai was having gun which he passed on to Natubhai Bhudarbhai who fired the gun in the chest of Taisi Gangaram and he fell down. It was further alleged that this complainant Mahadevbhai Valjibhai then came to his house and told his father Valjibhai and, thereafter, Mahadev and his father both came to the spot and found that Talsi Gangaram had already died and above-named four accused persons tad tied away. Thereupon, they went to Sitapur to file the complaint and, thereafter, to Dhrangadhra Police Station where the complaint was filed in which it was alleged that the reason for committing the murder of his Dada (uncle) Talsi Gangaram was hat the accused Nat' bhai Bhudarbhai had some quarrel with the son of the deceased before about 8 months back in Navratri about which no police complaint had been filed. It was also alleged that at the time of incident, Talsi Gangaram's son Narsi Talsi and one Bhikha Lala were present. On the basis of this complaint, criminal case was registered at the Police Station, Dhrangadhra. The Investigating Officer went to village Devcharadi on the spot where the dead body of deceased Talsi Gangaram was lying. Inquest report was prepared. Dead body of the deceased Talsi Gangaram was identified by his son Khodabhai and the pellets found on the body of the deceased were taken in possession and the dead body was sent for post-mortem examination at Dhrangahdra Hospital. In the morning of 18/05/1988 between 7-(X) and 8-00 a.m., panchnama of the scene of offence was prepared and the sample of blood-socked soil was taken and the respective panchnamas were prepared. It was found that there was distance of about 25 to 30 ft. between two places where the blood-socked soil was there and the spot is on the way between Devcharadi and Prangadh near the village tank wherefrom the village is about half a furlong or a furlong. After preparing the panchnama of the scene of occurrence, statements of Narsi Talsi, Shankar Pala, Bhikha Lalji. Vaiji Gangaram were recorded. Narottam alias Narsi's blood-stained clothes were taken into custody and its panchnama was prepared on 19/05/1988. The statement of Khodabhai Talsi was recorded and Bhudar Mohan was arrested. On the same day, on information being received that rest of the accused persons were near Umai River, the Investigating Officer went to the place near Umai River wherefrom Natubhai Bhudarbhai and Bhupatbhai hudarbhai were arrested in presence of the panchas and at that time, Natubhai Bhudarbhai was having the gun which was also recovered and the panchnama was prepared. This place is about 3 km., away from village Devcharadi. The gun was wrapped in cloth cover and it was sealed and the licence was demanded from the accused persons but they were not having the licence. On 20/05/1988, Ishwarbhai Raghunathbhai was arrested. Remand in respect of the accused persons till 24/05/1988 was granted and after inquiring from them. Raghu was arrested and he too had no licensed gun. On 5 3/05/1988, the house of the accused Nos. 1. 2 and 3 was searched in presence of the panchas. Natubhai Bhudarbhai gave pellets which were taken in the possession and the accused persons were produced before the Court on 24/05/1988. The clothes of the accused persons and the other articles were sent to the Forensic Science Laboratory at Junagadh and after completing the investigation, charge-sheet was filed on 1-8-1988. Thereupon, charge was framed against the accused persons Bhudarbhai Mohanbhai, Bhupatbhai Bhudarbhai Natubhai Bhudarbhai. Ishwarbhai Raghunath and Raghu Manu under Sec. 302 of the Indian Penal Code. Accused No. 1 Bhudarbhai, Mohanbhai was also charged for the offence under Sec. 109 of the Indian Penal Code and accused Nos. 1 and 3 were also charged for the offence under Sec. 25(1 )(c) of the Anns Act and Sec. 135 of the Bombay Police Act.,