AHER PRAFUL MERAM CHHAIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these appeals arise out of the judgment and order rendered by the Ld. Addl. Sessions Judge, Junagadh on 29/1/2002 in Sessions Case No. 134/1998, whereby the Ld. Trial Judge convicted original accused no. 1 Praful Meram Chhaiya and original accused no. 4 Dilip Meram Chhaiya for the offence punishable under section 302 read with section 114 of the Indian Penal Code [for short 'ipc'] and section 135 of the Bombay Police Act [for short 'bp Act'] and each of them was sentenced to undergo rigorous imprisonment [for short 'ri'] for life and fine of Rs. 1,000/- and in default pf payment of fine, simple imprisonment [si] for six months for the offence punishable under section 302 read with sec. 114 of the IPC and SI for six months and fine of Rs. 200/- and in default of payment of fine, SI for seven days for the offence punishable under section 135 of the BP Act. Both the sentences were ordered to run concurrently. By virtue of the impugned judgment and order, the Ld. Trial Judge recorded acquittal of original accused no. 1 Arjan Meram Chhaiya and original accused no. 3 Meram Haja Chhaiya. The original accused nos. 2 and 4, who came to be convicted by the trial Court for the offence punishable under section 302 read with section 114 of the IPC and section 135 of the BP Act, preferred Criminal Appeal No. 340 of 2002 challenging their conviction. Since the original accused nos. 1 and 3 came to be acquitted of all the charges levelled against them, the State of Gujarat preferred Criminal Appeal No. 463 of 2002 challenging their acquittal.

(2.) THE prosecution case, in nutshell, is that the incident occurred at about 9. 00 p. m on 21/6/1998, opposite to the Pan Bidi cabin of accused no. 4 Dilip in the village called Bhindora, district Junagadh. It is the case of the prosecution that at the time of the incident, deceased Ashok Vala passed near the Pan Bidi cabin of accused no. 4 Dilip and at that time he was called by accused no. 4 Dilip and accused no. 2 Praful and thereupon deceased Ashok went near the Pan Bidi cabin of accused no. 4 Dilip. It is alleged that deceased Ashok was assaulted upon by accused no. 4 Dilip with axe and two blows were inflicted by him, one on the back side of head and second blow on the right arm of deceased Ashok. It is further alleged that accused no. 1 Arjan was armed with Gupti and he inflicted blow with Gupti on the lower abdomen of the deceased and accused no. 2 Praful who was armed with Gupti inflicted Gupti blow on the chest of deceased Ashok. It is further alleged that at that time accused no. 3 Meram was instigating accused nos. 1, 2 and 4 to kill Ashok. Ashok in seriously injured condition was removed to Community Health Centre, Manavadar in a rickshaw, but at about 11. 00 p. m on 21/6/1998 when Ashok was brought to the hospital, he was declared dead. Dr. Hareshkumar Nathabhai [ PW 3 ] informed Manavadar Police by a letter informing that Ashok was brought dead sustaining fatal injuries and the dead body was kept in P M room. The letter addressed to P. S. O. Manavadar Police Station by Dr. Hareshkumar Nathabhai came to be received by concerned police station at 11. 20 p. m on the same day. Head Constable Mohmedkhan Ismailkhan [ PW 15] immediately went to Manavadar Hospital and drew inquest panchnama of the dead body of deceased Ashok between 11. 30 and 12-00 in the mid night [ exh. 16]. Since the first informant Nagdan Vasan was there in the hospital, Head Constable Mohmedkhan recorded the first information report of first informant Nagdan Vasan [ PW 1] in the hospital itself. The FIR was registered in Manavadar Police Station and police investigation was commenced.

(3.) LD. Trial Judge framed charge against all the 4 accused persons at exh. 7 for the offence punishable under section 302 read with section 114 of the IPC and section 135 of the BP Act, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined 21 witnesses and produced relevant documentary evidence. After the prosecution concluded its oral evidence, Ld. Trial Judge recorded further statements of all the 4 accused persons under section 313 of the Criminal Procedure Code. They denied generally all the incriminating circumstances brought to their notice by the Ld. Trial Judge and stated that on account of some election dispute they were wrongly implicated in this case. It was further stated that all the family members including father and 3 sons have been falsely implicated as the deceased happened to be near relative of Sarpanch of their village [pw 1 Nagdan Vasan]. That Nagdan Vasan and accused no. 4 Dilip had contested, in past, an election of Sarpanch and keeping said grudge in mind, all the family members of one family have been implicated in this case. After considering the evidence on record and the submissions made on behalf of both the sides, the Ld. Trial Judge came to the conclusion that the case against original accused no. 2 Praful and original accused no. 4 Dilip regarding murder of deceased Ashok has been proved beyond reasonable doubt by the prosecution and recorded their conviction for the offence punishable under section 302 read with section 114 of the IPC and section 135 of the BP Act and awarded the sentence as hereinbefore referred to in this judgment. However, the Ld. Trial Judge came to the conclusion that the prosecution failed to prove its case beyond any reasonable doubt against the original accused no. 1 Arjan and original accused no. 3 Meram and recorded their acquittal. The conviction recorded by the trial Court is challenged by original accused nos. 2 and 4 by preferring Criminal Appeal No. 340 of 2002 and the acquittal recorded by the Ld. Trial Judge of original accused nos. 1 and 3 has been challenged by the State of Gujarat by preferring Criminal Appeal No. 463 of 2002.