MER MALDE VEJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants who have been convicted for the offences under Secs. 302, 324 and 323 read with Sec. 34 of the Indian Penal Code and sentenced to life term and a fine of Rs. 500 each, in default to undergo further rigorous imprisonment for 2 months for the offence under Sec. 302 read with Sec. 34 of the IPC, rigorous imprisonment for 3 months and a fine of Rs. 200 each, in default to undergo farther R.I. for 15 days for the offence under Sec. 324 read with Sec. 34 of the Indian Penal Code and also one month rigorous imprisonment and fine of Rs. 100 each, in default to undergo further rigorous imprisonment for 7 days for the offence under Sec. 323 read with Sec. 34 of the Indian Penal Code, by judgment and order dated 24.4.1989 of the Additional Sessions Judge, Jamnagar, in Sessions Case No. 39 of 1986, have challenged the said decision before us in this appeal.

(2.) The prosecution story is that there were some disputes between the accused No. ! and deceased Vaghji Hirji. On 22.11.1985, Vaghji Hirji and his wife Maniben Vaghji started from their house in a bullock-cart in the morning around 5.30 for going to the bus stand. Prabhulal Chhaganlal was driving the bullock-cart. When they proceeded hardly a hundred feet ahead, the accused persons-Malde Veja armed with a spear and Menand Malde armed with a stick, chased the bullock cart and started giving blows to them with their weapons. The accused No. 1 Malde Veja gave spear blows to Vaghji Hirji, while he was sitting in the cart. Vaghji Hirji had got his both legs amputated due to cancer years back and was having aluminium legs. Vaghji Hirji who was given several blows was killed on the spot and his wife Maniben was injured by spear and stick blows. When this incident was occurring, she had raised shouts. The bullock cart had proceeded some feet and stopped near a water tank, which was near the Mahajan Vadi. On hearing the. shouts, Mahajan Velji Samat, who was in the Mahajan Vadi due to arrangements which were being made for the marriage reception of his son, came out and on his telling the accused persons to stop beating, the accused No. 1 Malde Veja gave spear blows to him and the other accused gave a stick'blow, as a result of which, Mahajan Velji Samat fell down. His son who was also in the Mahajan Vadi and on hearing the shouts come out, had seen the incident and on finding that his father falling down due to injuries caused by the accused persons, he went near him and alongwith others, picked him up. Mahajan Velji was then taken to the Jamnagar Hospital from the said village Navagam and at Jamnagar, he passed away on the next morning. In the meantime, Veljibhai's dying declaration was recorded as per Ex. 33 after his complaint, which was also treated as a dying declaration, came to be recorded as per Ex. 67. According to the prosecution, the injured witness Maniben witnessed the incident and witness Rameshchandra, son of Velji had also seen the accused persons attacking Vaghji, Maniben and his father. Witness Bhavarlal who soon came there also supported their version. Prabhulal, after getting the first stick blow ran away and does not throw any light on the prosecution case, except by stating that there were two assailants and one of them had given him a stick blow and that therefore, he had run away. The dispute between the accused persons with Vaghji Hirji, started after the accused persons purchased the land which was adjoining the land of Vaghji Hirji. There was a common hedge between the two parcels of land and the accused persons were claiming a right of way over the land of Vaghji and in the past, there were cases filed over such disputes. The prosecution version is that though it was a wintry morning, there were a street lights and witness Maniben had identified these assailants, whom she already knew, from close quarters. Even witness Rameshchandra had known these persons and he could identify them. The deceased Mahajan Velji Samat in his dying declaration only expressed his suspicion against the persons of the accused No. 1 having been the assailant and he did not in either of his dying declarations Ex. 33 and Ex. 67 specifically name the accused persons as the assailants. He named the accused No. 1 stating that his persons were the assailants and he did mention that there were disputes between Vaghji Hirji and the accused No. 1 Malde Veja and further that he was attacked with spear while he went out on hearing the shouts of the lady. The prosecution case is that on the basis of the intimation sent by the Jamnagar Police after Mahajan Velji Samat was admitted in the Irvin Hospital, Police Sub-Inspector Sodha of Lalpur Police Station, which was having jurisdiction over Navagam area, made an entry Ex. 74 at 7.45 A.M. in the station diary at serial No. 9 to the effect that information was received from the control room that a murder was committed in Navagam, of a Mahajan and that Police should proceed to Navagam and take further steps. Navagam is about 45 k.m. away from Lalpur. On reaching Navagam, PSI Sodha had seen the dead body of Vaghji Hirji lying in the bullock cart. He called the panchas and prepared the inquest panchnama, during which Nemchand, brother of Vaghji Hirji, identified the dead body and thereafter, panchnama of the scene of the offence was drawn and statements of witness Nemchand and Prabhulal were recorded. According to the prosecution, witness Maniben who had sent for her son-in-law earlier by sending Nemchand to Jamnagar, was taken to Jamnagar in a taxi. The prosecution case is that soon after the attack by the accused persons, Rameshchandra had taken his injured father Mahajan Velji in a bus which was to go to Jamnagar from Navagam and in the very bus. Nemchand travelled to give message to Maniben's son-in-law Rasiklal. The fact that Mahajan Velji Samat reached the hospital around 7.20 A.M. shows that the bus had reached Jamnagar before that time. According to the prosecution, PSI Sodha thereafter proceeded to Jamnagar and there he recorded statements of Rameshchandra and others. In the meantime, Maniben who was not admitted as an indoor patient, was discharged after some treatment and she went back to Navagam and her statement came to be recorded in the evening at Navagam. The prosecution version is that, earlier, PSI Sodha had already come to know about the names of the accused persons before he left Navagam for Lalpur. In fact, the accused persons had already surrendered themselves at Lalpur Police Station by 3.45 P.M. The prosecution case further is that the accused No. 1 had filed a non-cognizable offence complaint against Mahajan Velji Samat and in that connection he was, under a Police yadi, sent to the hospital. According to that complaint, the accused No. 1 had received the injuries at the hands of Velji Samat. The yadi Ex. 23 dated 22.11.1985 sent by PSI Lalpur to the Lalpur Primary Health Centre reflects that the accused No. 1 Malde Veja, who had filed N.C. No. 56/85 for the offence under Sec. 323 of the Indian Penal Code against Mahajan Velji Samat for giving stick blow to him and causing injury was being sent for treatment. The medical certificate in that connection which is at Ex. 25 shows that the accused No. 1 Malde Veja was examined by the doctor on 22.11.1985 at 6.15 P.M. and a bruise 4 cm x 2 cm in size with redness on left leg on the calf region posterior aspect was found. The prosecution case therefore is that, the presence of these accused persons is not only established from the evidence of the eye witnesses, but even from the complaint made by the accused No. 1 that he was injured by Mahajan Velji Samat, who later on succumbed to the injuries caused to him by the accused persons, after having been taken to Jamnagar in the early morning on 22.11.1985. The prosecution case is that all the spear injuries were caused by accused No. 1 and the accused No. 2 had caused stick injuries. These accused persons had, at the early morning, come together and after attacking Vaghji Hirji, Maniben Hirji and Mahajan Velji Samat with lethal weapons, run away together from the scene of the offence. According to the prosecution, the fact that they had come together armed with lethal weapons early in the morning at 5.30, chased the bullock cart and caused the fatal injuries resulting in death of two persons, clearly showed that they were acting in furtherance of common intention of causing murder. According to the prosecution, these accused persons who are father and son were residing at the outskirts of Pipli village and their presence at Navagam near the house of the deceased in the early morning with weapons and their attacking the two deceased persons and Maniben, amply showed that accused had participated in the crime with a prior meeting of mind to commit the offence and had acted in a concerted manner.

(3.) The defence version is of total denial and the accused have even denied having known Maniben and Rameshchandra. According to them, they were picked up from their place and taken to Lalpur Police Station and beaten up and then sent to the hospital.