CHANDU KALYAN RATHOD Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
CHANDU KALYAN RATHOD
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(1.) . This is an appeal filed by four appellants-original accused Nos. 1 2 3 and 5 who were tried along with six other accused before the learned Sessions Judge Bharuch in sessions case No. 5 of 1977 for the offences under secs. 147 148 452 302 read with sec. 149 and sec 326 read with sec. 149 of the Indian Penal Code. All the appellants that; is original accused Nos. 1 2 3 and 5 are convicted for the offence under sec. 302 read with sec. 34 I. P. Code and each one is sentenced to R. I. for life for the said offence. Accused No. 1 is also convicted for the offence under sec. 323 and is sentenced to R. I. for one year for the same. Accused No. 3 and 5 are further convicted for the offence under sec. 324 I. P. C. and each one is sentenced to R. I. for two years for the same and accused Nos. 1 and 3 are also convicted for the offence under sec. 452 I. P. C. and each one is sentenced to R. I. for two years for the same with no separate sentence under sec. 323 and 334 read with sec. 34 for accused Nos. 1 3 and 5 and with a direction that all the substantive sentences will run concurrently.
(2.) But so far as the case against accused No. 2 is concerned in our opinion the prosecution evidence does not establish beyond reasonable doubt his guilt for the offences with which he is convicted and the learned Judge was in error in recording a finding of guilt against him for the said offences. As per the evidence of the eye witnesses he was one of the seven persons present outside the hut with sticks. No particular overtact is attributed to this accused. It is an admitted fact that there was darkness outside and it is difficult to understand how Shana and others would be able to see any participation if any by this accused in the attack which was made on the deceased outside by means of sticks. The learned Judge it seems was carried away by the fact that he was the root cause of the trouble and that he was the person who had material grievance against Guman and Shana and that the wife of this accused (Amrat) had a cause of complaint against Guman and Shana. But this does not necessarily mean in the absence of any evidence in that direction that he was the person who had participated in any attack on the deceased when h came out in an attempt to run away from further attack by accused Nos. 1 3 and 5 inside the hut.
(3.) Another circumstance relied upon by the learned Judge was that when this accused was interrogated by P. S. I. Pathan he showed his willingness and made a statement before the police in the presence of panchas to take them to place where he had personally buried the right forearm of deceased Guman and at the instance of this accused the right forearm was discovered from the place where it was found buried and it was this accused who himself took the police and panchas to the said place and who dug out the place and took out therefrom the right forearm. It is true this does connect the said accused with an act of causing evidence on record with regard to the commission of offence to disappear with intention of screening the offender from legal punishment and may therefore result in his being found guilty for an offence under sec. 201 of the I. P. Code. But that does not establish that he is guilty of the offence under sec. 302 read with sec. 34 of the said Code or sec. 326 read with sec. 34 so far as the attack on Guman is concerned. It is an admitted position that this accused had not severed the right forearm of Guman. The overt act in this connection is attributed to accused No. 5. But in view of the fact that in pursuance of an incriminating statement made by this accused with regard to his burying the severed right forearm of the deceased at a particular place and his having dug out the arm from that place in the presence of the police and panchas he may be held guilty for an offence under sec. 201. But it would not be proper from this circumstance to jump to the conclusion that he was also guilty of the main offence under sec. 302 read with sec. 34 or sec. 326 read with sec. 34. The learned Judge in our opinion has missed this aspect of the legal position and has laid undue stress on this aspect for coming to the conclusion that this accused was also guilty for the offences for which he is convicted.;
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