Decided on September 19,1979



D.C.GHEEWALA, M.K.SHAH - (1.) In the unfortunate incident which happened on 5th March 1974 in the town of Khambhat a youthful life just on the threshold of a career. got extinguished. These were the days when the Nav Nirman movement rather a unique popular agitation which ultimately resulted not only in the downfall of the State Government established by law but in the dissolution of the State Assembly elected by popular votes also had spread like a wild fire throughout the length and breadth of the State of Gujarat; and the town of Khambhat was no exception to it. As a part of the agitation the members of the Assembly as also those occupying positions as Members in Local Bodies such as municipal ities were being pressed and coerced into tendering their resignations.
(2.) Accused No. 1 at the relevant time was the President of the Khambhat Municipality and he was one of those few who had withstood the pressure as also the threats and had refused to resign his post. He and his house therefore were the targets of attacks by the agitators and the accusation was that when deceased Jyotindrakumar accompanied by 3 or 4 boys threatened to stage a hunger strike near the house of accused No. 1 if the latter failed to resign within 2 days accused No. 1 got enraged and asked accused No. 2 to open fire on the deceased and thereupon accused No. 2 fired a shot on the deceased who along with his companions had in the meanwhile started running away which shot hit the deceased on his gluteal region through and through and killed him
(3.) The defence of the accused was more or less on the same lines as is indicated in the complaint ex. 35 filed by accused No. 2 against the deceased and a crowd of 1000 to 1500 boys within a few houre of the incident. Accused No. 1 denied that he had given any instructions or instigation to accused No. 2 to resort to firing or that any such previous incident as alleged by the prosecution wherein the threat with regard to the breaking of the skull of the deceased as alleged to have been given by accused No. 1 had happened. The defence case to put it in a nutshell is that when accused No. 2 found that there was imminent danger to his life as well as lives of his colleagues accused No. 1 and inmates of his family he in the exercise of the right of self defence when the crowd which inspite of repeated warnings was advancing in a menacing manner with continuous stone throwing came very near the place where accused No. 2 was standing i. e. within 20 or 25 feet from that place and apprehending that if no immediate action was taken the action of the crowd or some of its members may result in grievous hurt or death being caused of any one or more of them as a last resort fired the said gun shot and that too after he had ducked to avoid being hit by the incessant hurling of stones on him and after even with this precaution he had received injuries by the pelting of stones and after hls constables also were similarly injured and after he sat down on his knees on the ground. In addition the following features also indicate that according to the defence there was no criminal intention of opening fire in the circumstances in which it was resorted to. The gun was not specifically aimed towards the deceased but was aimed in the direction of the crowd towards the ground and on realising that some boy had sustained injuries no further shot was fired seen though at that time the members of the crowd were delivering threats. Be it noted that as a matter of fact the god shot hit the lower middle of the glottal region but unfortunately it proved fatal as there was laceration of the funeral vessels. ... ... .. ... ...;

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