CHANABHAI KARSANBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an application at the instance of a convict - accused (original accused No.3) under Section 389 of the Code of Criminal Procedure, 1973, (for short 'the Code') seeking suspension of the substantive order of sentence of life imprisonment passed by the 5th Additional Sessions Judge, Rajkot At- Dhoraji vide judgment and order of conviction dated 28.02.2018 in the Sessions Case No.29/2012 (old Case No.58/2010).

(2.) It appears from the materials on record that in all six accused were put on trial for the offence punishable under sections 302 , 326 , 325 , 323 , 504 , 147 , 148 , 149 of the IPC and section 135 of the Bombay Police Act. The case of the prosecution in brief is that the accused persons were at inimical terms with the prosecution witnesses i.e. the deceased and his sons. There was a longstanding dispute between the two sides relating to the boundaries of the agricultural field. According to the case of the prosecution, on 09.05.2010, all the accused formed an unlawful assembly with the common object to inflict injuries on the deceased and his sons. Having regard to the specific case put up by the prosecution, the trial court framed charge against all the accused persons of having formed an unlawful assembly with a particular common object. In the course of the trial, the prosecution examined as many as five eye witnesses to the incident. It also appears from the materials on record that some of the accused persons also sustained injuries for which a cross case was filed. However, in the cross case, all the accused came to be acquitted and against the said judgment and order of acquittal, the State is here before this court with the acquittal appeal.

(3.) We may go back to the genesis of the occurrence. The trial court upon appreciation of the evidence on record, oral as well as documentary, arrived at a conclusion that the prosecution has failed to prove its case of unlawful assembly and common object. To this extent, all the five eye witnesses have been disbelieved by the trial court. We take notice of the fact that although each of the five eye witnesses has specifically deposed with regard to the individual role of all the accused who were put on trial, yet the trial court disbelieved all the five eye witnesses. However, the trial court thought fit to convict the applicant herein for the offence u/s. 302 of the IPC simplicitor fixing his individual liability. According to the trial Court, there is evidence on record to indicate that the applicant herein had a sickle in his hand and he is alleged to have hit a blow with the blunt side of the sickle on the head of the deceased. According to the case of the prosecution, on account of such blow on the head, the deceased fell down and became unconscious. He was admitted to Wockhardt hospital. As the family members were not able to bear the expenses of the Wockhardt hospital, they took discharge and shifted the injured to the house of one of his daughters. Later, his condition deteriorated and he died. That is how Section 302 of the IPC came to be added.