VAGHABHAI TALSIBHAI KOLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellants, who were original accused in Sessions Case No. 4 of 1999, came to be convicted for the offences punishable under Sections 302, 504 and 324 read with Section 34 of the Indian Penal Code ('ipc', for short) by Sessions Court, Amreli on 31. 8. 2001. Each of the appellant - accused was ordered to undergo imprisonment for life and fine of Rs. 5000/-, and in default of payment of fine R. I for six months for the offence punishable under Section 302 read with Section 34 of the IPC. No order of separate sentence came to be passed for the offences punishable under Sections 504 and 324 read with Section 34 of the IPC.

(2.) THE prosecution case in nutshell is that the incident occurred on dated 29. 7. 1998 at about 7. 30 p. m. in Village Kariyana, Tal. Babra, Dist. Amreli. At the time and place of the incident, deceased Lakhubhai Harsurbhai along with his son - first informant Maheshbhai Lakhubhai and Chhaganbhai Jivabhai (PW-12) were proceeding in a rickshaw driven by the first informant Maheshbhai Lakhabhai towards house of witness Chhaganbhai Jivabhai. They reached in the area called Kolina Nehaliya, at that time, the rickshaw was intercepted by all the four appellants, and at that time, the appellants No. 1 and 2 were armed with stick, appellant No. 3 was armed with axe and the appellant No. 4 was armed with iron-pipe. The deceased Lakhubhai and witness Chhaganbhai came out from the rickshaw and immediately appellant - accused No. 3 Valabhai Talsibhai inflicted a blow of axe on the head of deceased Lakhubhai and Lakhubhai fell on the ground and became unconscious. Deceased was immediately taken to Government hospital, Babra, and from there he was removed to private hospital of Dr. Trivedi at Rajkot. During the treatment, the deceased succumbed to the injuries on 30. 7. 1998 at 13. 10 p. m. Son of deceased Lakhubhai named Maheshbhai Lakhubhai lodged first information report ('fir', for short) before PSI, Malaviyanagar police station, Rajkot, and the report, for the purpose of investigation came to be transferred to Babra police station, as the offence took place within the territorial jurisdiction of Babra police station. The report came to be registered and police commenced the investigation. During the course of investigation, it was revealed that witness Chhaganbhai Jivabhai (PW-12) was assaulted by appellant - accused No. 4 Chakabhai Talsibhai with iron-pipe and he sustained injuries on his head and that he was also assaulted by appellants No. 1 and 2 with sticks. Statements of material witnesses were recorded, weapons used in the crime came to be seized by drawing necessary panchnamas. After collecting material evidence for the purpose of lodgment of chargesheet, the chargesheet came to be filed in the Court of learned JMFC, Babra. As the offence was exclusively triable by the Court of sessions, learned JMFC, Babra committed the case to the Court of sessions, Amreli, which came to be registered as Sessions Case No. 4 of 1999.

(3.) LEARNED advocate Mr. Buddhbhatti for the appellants submitted that the prosecution miserably failed to prove its case beyond reasonable doubt. It is submitted that all the so-called eye-witnesses examined by the prosecution in this case, admitted that in the incident, appellant - accused No. 4 Chakabhai Talsibhai sustained bodily injuries, but, they failed to explain the injuries sustained by accused No. 4. On the contrary, they pleaded total ignorance about the material aspect. In the FIR, Exh. 46, lodged by first informant Maheshbhai Lakhubhai, the son of the deceased, nowhere he stated that in the incident, witness Chhaganbhai Jivabhai (PW-12) sustained bodily injuries. It is, therefore, submitted that the prosecution is suppressing the very genesis of the incident. As a matter of fact, it was the first informant - Maheshbhai, his deceased father Lakhubhai and witness Chhaganbhai, who assaulted with deadly weapons and caused serious bodily injuries to the accused No. 4 Chakabhai Talsibhai. Therefore, it is submitted that the accused were justified in exercising their right to private defence of person. Thus, the learned Sessions Judge erred in recording conviction of the appellants for the offence of murder. It is further submitted that about the aspect of motive behind the commission of the offence, the prosecution has come forward with different stories. That the Investigating Police Officer Mr. Vora (PW-17) admitted that in connection with injuries sustained by accused No. 4, FIR came to be lodged by the accused No. 4, which came to be registered as C. R. No. I 87 of 1998. He admitted that he investigated both the offences and that there was a quarrel and free-fight between both the group of persons. Therefore, it is submitted that the prosecution failed to establish that the act was committed by the accused with premeditation. The evidence reveals that it was a sudden fight, and a sudden quarrel. It is further submitted that the evidence further reveals that the deceased first in point of time inflicted axe blow on the head of appellant - accused No. 4 Chakabhai and to save accused No. 4 Chakabhai, the deceased was assaulted. That thus, as a matter of fact, the accused exercised their right of private defence to their person, but, even if alternatively it is accepted that the right of private defence came to be exceeded, yet, the offence of murder punishable under Section 302 of the IPC cannot be said to have been constituted. Thus, alternatively, it is submitted that Exception Nos. 2 and 4 will play predominant role in the facts and circumstances of this case, and therefore, also the learned Sessions Judge erred in recording conviction for the offence of murder, punishable under Section 302 of the IPC. It is submitted that the cross-FIR, Exh. 62, lodged by appellant - accused No. 4 Chakabhai against deceased, his son Maheshbhai (the first informant) and Chhaganbhai Jivabhai (PW-12) came to be tendered in evidence during the course of deposition of Investigating Police Officer Mr. Vora by the prosecution itself, and therefore, the FIR of the cross-case, Exh. 62 deserves to be considered together with the contents of the FIR. Therefore, it is submitted that the appeal may be appropriately allowed.