STATE OF GUJARAT Vs. CHAVDA MANAJI CHELAJI

JUDGEMENT

(1.) This acquittal appeal has been preferred against the judgement and order dated 12.12.1991 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No. 186 of 1990, acquitting all the seven respondents - accused persons, for the offences punishable under Sections 302, 504 read with Section 149 and/or Section 34 and Sections 147, 148 and 447 of the Indian Penal Code and Sec. 135 of the Bombay Police Act.

(2.) All these accused persons were alleged to have formed an unlawful assembly with a view to commit murder of Hariji Mongaji Chavda and in pursuance of such common object, they are said to have attacked Hariji with lethal weapons like dharias and sticks and caused his death by inflicting multiple injuries on him, around 4.45 P.M on 28/05/1990 in the field of Hariji, bearing Survey No. 1720 in village Kada, which is in Tal. Visnagar of Mehsana District. The prosecution version is that on 27th May, 1990, there was a quarrel over removing a part of the hedge lengthwise on the side of the field of the accused No.3 - Jivanji Chelaji bearing survey No. 1719, which was adjoining the field of Hariji. According to the prosecution, when a part of the hedge was broken by cultivating it lengthwise, Hariji had objected in the evening on 27/05/1990. That quarrel had taken place between the deceased Hariji and the accused No.3 Jivanji Chelaji, accused No.7 Ranjitsinh Jivanji and the accused No.1 Manaji Chelaji. Thereafter, on coming to know about this quarrel, Manuji Madhaji , brother of the deceased, went to Hariji's field and questioned him about the quarrel. Hariji told him that he should go and see the damage caused to the hedge and then he would know who was at fault. Therefore, the informant Manuji Madhaji saw the hedge and noticed that the hedge of his brother's field was broken. Manuji however advised Hariji not to make an issue of it. Thereafter, on 28/05/1990, when Manuji went in the afternoon to his field for tethering buffaloes, and his son Ranjit Manuji had followed after some time, according to the prosecution, Hariji Mongaji and his son Ganpatsinh were present at the tubewell which belonged to Hariji. At about 4'O Clock in the afternoon, Manuji heard some commotion from near the tube-well of Hariji and therefore, he and his son Ranjit went in that direction and at that time they saw that these seven accused persons armed with dharias and sticks were abusing Hariji and the accused No. 3 - Jivanji Chelaji and accused No.4 - Pratapji Chelaji shouted to finish him off, and all of them started giving blows with their weapons to Hariji. The accused No.3 Jivanji Chelaji gave a dharia blow on the head of Hariji, who was wearing a turban (fenta). Hariji therefore started running shouting for help. The other accused persons rounded him up and gave blows as a result of which Hariji fell down. Ganpatsinh, son of Hariji was also present at the scene of offence. According to the prosecution, the accused Nos. 2, 3, 6 and 7 were having dharias, while the accused Nos. 1, 4 and 5 were having sticks. All of them had given blows to Hariji and had thereafter gone away. The informant and his son Ranjit and Ganpatsinh who had seen the incident did not intervene when Hariji was assaulted because they were unarmed and were outnumbered. After these assailants went away, the informant Manuji and his son Ranjit went nearer Hariji and saw that he was dead. At that time Ganpatsinh was also present. The informant Manuji then proceeded to Visnagar for filing the complaint, leaving Ganpatsinh and Ranjit near the dead body. The FIR Ex.52 was filed in the Police Station around 5.45 P.M on the same day. Thereafter, at about 6.15 P.M, PSI Kishorsinh Vaghela and PSI Prakash Bhalia and other police persons proceeded to the place of the offence, alongwith the informer and inquest of the dead body of Hariji Mongaji was drawn. Thereafter, the dead-body was sent to the Civil Hospital, Visnagar, where it was received at about 9.00 P.M. The postmortem was done on the next day morning i.e. on 29.5.1990 between 6.15 A.M and 8.15 A.M. The accused Nos. 1 to 5 were arrested on 28.5.1990 itself and on 29.5.1990 at about 4.45 P.M, the accused Nos. 6 and 7 appeared before the Police with two dharias. According to the prosecution, even the accused Nos. 1 to 5 had produced muddamal weapons. The accused Nos. 1 to 4 are brothers and the accused No.5 Hemtaji Pratapji is son of the accused No.4 Pratapji Chelaji, the accused No.6 Pravinji Manaji is son of the accused No.1 Manaji Chelaji and the accused No.7 Ranjitsinh Jivanji is son of the accused No.3 Jivanji Chelaji. As per the postmortem report, there were as many as nine injuries found on the body of Hariji, which were all ante-mortem. The cause of death was extensive haemorrhage due to injuries to right upper limb. The medical officer opined that the death might have taken place 5 to 6 hours after taking of the last meal.

(3.) All the accused persons pleaded not guilty to the charges. The defence was of total denial. The defence of the original accused No.7 - i.e. the respondent No.7 herein Ranjitsinh Jivanji, was that on the relevant day he was serving as a watchman at Hajipura. The defence is put up in the cross-examination of the investigating officer. The accused persons also examined defence witness Mafabhai Lallubhai at Ex.77, to show that on 28.5.1990, the accused No.7 had attended a dinner party in Hajipura at about 2.00 P.M. The muster-roll in respect of the accused No.7 was got produced at Mark 50/1, to show that on 28.5.1990 he was on duty as a daily wager watchman. That muster-roll did not indicate whether he was on day-time duty or night duty. The defence version also is that Hariji had disputes with several persons and that he might have been killed by one of his enemies and his body might have been thrown in his field.