(1.) THE present appellants are convicted for the offence punishable under Section 307 of IPC and sentenced them to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/ - each, in default, to further undergo Rigorous Imprisonment for six months, by the judgment and order dated 30.9.1983 passed by the learned Addl.Sessions Judge, Rajkot in Sessions Case No. 12 of 1983. By filing this appeal, the said judgment and order is challenged by the present appellants -original accused Nos.1 and 2.
(2.) THE brief facts of the prosecution case are as under:
2.1 It is the case that injured Ravji Pancha and the accused are residents of the village Moti Marad. Both the appellants -accused are real brothers. There are in all, four brothers. The injured Ravji Pancha is having his field known as 'Vidi' in the sim of village Moti -Marad. The field of the accused also is touching the field of Ravji Pancha. Before about five days or so before the incident, there had been a quarrel between the accused on one hand and Ravji Pancha on the other hand, in connection with grass on the 'Sheda' land between the fields of both the parties. On the date of the incident, Ravji Pancha had gone to his field 'Vidi' on his motor -cycle at about 6.30 p.m. and he was on his way back to home. The witness Muktaben, who was working as a labourer in the field of Ravji Pancha, had also accompanied Ravji Pancha on his motor -cycle. On the way, they saw that the accused were going towards village Moti -Marad along with agricultural implements. On seeing Ravji Pancha and Muktaben on the motor -cycle from behind, the accused halted their cart and got down from it. Accused No.1 was having a Ramp (an iron blade to be fitted with a plough for agricultural operations) in his hand and accused No.2 was having a Kharpiya (a stick with a curved iron -blade used for cleaning the plough while in operation). On seeing the accused, Ravji Pancha asked Muktaben to get down from the motor -cycle. After he stopped his motor -cycle, taking advantage of the loneliness of Ravji Pancha, both the accused pounced upon him and began to beat him. Ravji Pancha ran to escape towards the canal upto a distance of about 30 ft. where he fell down. The accused ran after him and beat him till he was unconscious and then they rode the cart. By this time, Muktaben, afraid of the accused, was going towards the village, but she was overtaken by the accused and she was threatened by the them that if she disclosed the incident to anybody else, she would also be beaten to death. Muktaben went home, leaving Ravji Pancha where he was lying in an unconscious condition and at that time, one motorist Nikhilbhai Jayantilal Shah passed by that road as he was going from Dhoraji to Bhader in his Ambassador car. Said Nikhilbhai took Ravji Pancha to the hospital in village Moti -Marad. The relatives of Ravji Pancha including his wife and cousins gathered together in the hospital, and after Ravji Pancha was given first aid, he was removed to Dhoraji hospital from where he was referred to Junagadh hospital. The cousins of Ravji Pancha, Maganbhai and others who had gone to Dhoraji and Junagadh returned to Moti -Marad and began to make inquiries as to how the incident had occurred and Ravji Pancha was injured, as nobody knew as to how Ravji Pancha was injured. In their pursuit, Maganbhai Naranbhai went towards 'Vidi' of Ravji Pancha and when he came near the canal, he found that the motor -cycle of Ravji Pancha was lying on the road and the petrol was spilled on the road. He also found a pool of blood. In order to make further inquiry, Maganbhai Naranbhai and his brother Trikambhai Naranbhai went to the house of Muktaben and after she was assured protection, she disclosed as to how Ravji Pancha was injured. Muktaben narrated to them that Ravji Pancha was beaten by the accused and on that strength of information at about 6.15 a.m. on 30.8.1982, Maganbhai lodged the complaint in Patanvav Police Station that one Jayantilal Chhagan and his brother whose name he did not know had assaulted Ravji Pancha and made an attempt to murder him. On receiving this complaint, an offence was registered and investigation was started. On the other side, the story is that, at Junagadh Hospital, the Constable on duty sent a note to Junagadh City Police Station that one Ravji Pancha had been admitted in Civil Hospital, Junagadh with injuries by motor -cycle and necessary action is to be taken. The Station diary entry was made in Junagadh Police Station. A policeman went to the hospital and on questioning the relatives and particularly one Ratna Mavji who is related to Ravji Pancha noted that the injured had received injuries as the motor -cycle slipped and he had fallen down. The PSI of Patanvav Police Station was then informed by Junagadh City Police Station, as the incident occurred within the jurisdiction of Patanvav Police Station.
2.2 PSI, Amrutiya, who had already started investigation informed his higher authority about the incident and drew up a panchanama of the site of the offence. He recorded the statements of Muktaben and other witnesses and attached blood soaked soil and control samples, a pair of shoes, a watch strap, and blood soaked tar. The accused presented themselves at about 2.00 p.m. before the PSI along with the weapons and the weapons were attached and sealed. The PSI went to Junagadh, but the injured was found in an unconscious condition and the Medical Officer on duty told him that the injured was not in a fit state of health to give statement. The PSI attached the blood -stained clothes of Ravji Pancha and recorded the statements of other witnesses available. He informed the Executive Magistrate to take the dying declaration of the injured, but the Magistrate did not appear to have recorded the statement. Even as on the next day, the investigation was continued and the accused were sent to the judicial custody. On 2.9.1982, PSI Amrutiya went to Junagadh hospital and recorded the statement of the injured. The muddamal attached was sent to Forensic Science Laboratory (FSL), Junagadh for analysis. On receiving the medical certificate and receiving the muddamal sent to FSL, the accused were charge -sheeted before the learned Judicial Magistrate, First Class, Jetpur.
2.3 The learned Magistrate finding the case to be exclusively triable by the Court of Sessions, by his order, committed the case to the Court of Sessions for trial. During trial, the accused pleaded not guilty of committing the offence and claimed to be tried.
(3.) THE prosecution has examined the following witnesses:
PW -1 - Maganbhai Naranbhai
PW -2 - Jayaben Dayabhai
PW -3 - Bavanji Rudabhai
PW -4 - Nikhil Jayantilal Shah
PW -5 - Ravjibhai Panchabhai
PW -6 - Dr.Gokaldas Manjibhai Kansagara
PW -7 - Dr.Jasmatbhai Dayabhai Rabara
PW -8 - Dr.Dhirajlal Ladhabhai Raiyani
PW -9 - Ratnabhai Mavjibhai
PW -10 - Chhaganlal Gordhanbhai
PW -11 - Jivabhai Khimjibhai
PW -12 - Muktaben Ravji
PW -13 - Trikambhai Naranbhai
PW -14 - PSI Mansukhlal Bhagvanji Amrutiya.
I have heard learned Senior Advocate Shri Arun Mehta for the appellants and learned APP Mr.U.R.Bhatt for the respondent State. I have also gone through the entire record of the case. For the purpose of deciding this appeal, the deposition of the main and important witnesses, namely, (i) PW -5 - Ravji Panchabhai, Exh.10; (ii) PW -12 - Muktaben Ravji, Exh.30; and (iii) PW -8 - Dr.Dhirajlal Ladhabhai Raiyani, Exh.20. Learned Senior Advocate Mr.Arun H.Mehta for the appellants -accused has argued that the charge under Section 34 of the IPC is not framed against the appellants -accused and the trial Court has convicted both the appellant -accused under Section 307 of IPC which is bad in law for the reasons that neither the injured Ravji nor the eye witness Muktaben says which accused has given nature of blow to the victim and that out of the three Doctors who have been examined, none of them says that a particular injury caused by a particular blow could have been proved fatal. In support of his submission, he took this Court to the evidence of injured witness Ravji, eye witness Muktaben Ravji, Dr.Gokaldas Manjibhai Kasangara of Junagadh Civil Hospital; Dr.Jasmatbhai Dayabhai Rabara; and Dr.Dhirajlal Ladhabhai Raiyani. It is argued by him that there is no evidence on record that both the accused have common intention so as to attract the provisions of Section 307 of IPC. It is also argued by him that nothing comes out on the record as evidence which shows that in furtherance of a pre -planned meeting, injured Ravji was attacked and in any case, it cannot be said that there was a common intention of both the accused to injure Ravji. However, without considering the same, the trial Court has convicted both the appellants -accused for the offence punishable under Section 307 of IPC.;