CHAUDHARI RAMJIBHAI NARASANGBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellant questions correctness of the judgment rendered by a Division Bench of the Gujarat High Court setting aside the judgment of acquittal passed by the trial Court and convicting the appellant for an offence punishable under Sections 304, part II, 325 and 447 of the Indian Penal Code, 1860 (in short the "IPC") and sentencing him to undergo rigorous imprisonment for a period of 5 years, 3 years and 2 years respectively with a direction that the sentences to run concurrently. Two other persons who are respondents 2 and 3 in this appeal had also faced trial with the appellant. They were acquitted by the trial Court, but convicted by the High Court. They were, however, ordered to be released on probation of good conduct and behaviour for a period of 3 years instead of sentencing them at once.

(2.) Prosecution version as unfolded during trial is as follows : The complainant Madhevbhai Veljibhai (PW-4), one of the injured witnesses filed the first information report stating that on 28-4-1983 a.m. his father Veljibhai Bhavsang (hereinafter referred to as the deceased) along with his either brother Cheljibhai (PW-6) and younger brother Kanjibhai (PW-7) were working on their Vadalo agricultural field situated in the outskirts of Magroda village. At about 10.00 a.m. the complainant went on to a well to take bath. After taking bath and washing clothes, he was trying to dry his clothes. At that time his father the deceased was sweeping leaves under a Peepal tree and his brother Chelji (PW-6) was sitting near the well whereas his younger brother Kanji (PW-7) was bathing cows at the place where they were grazing. At about 11.00 a.m. his cousin brothers (uncles son) Chaudhari Ramji Narsang (A-1) (appellant No. 1) armed with hoe, Chaudhari Bababhai Narsang (A-2) (respondent No. 2) armed with stick and Chaudhari Bai Suraj (A-3) (respondent No. 3) armed with log entered the field and started assaulting his father. It was alleged that accused-appellant Chaudhari Ramji Narsang gave two blows with hoe on the head of his father as a result of which he raised some cries. As a result of injury, he was having profused bleeding. On hearing cry, his brother Chelji (PW-6) and Kanji (PW-7) ran towards the scene of offence. On seeing them, Chaudhari Bababhai Narsang (A-2) gave stick blow on the forehead of Chelji, whereas Suraj (A-3) assaulted Chelji with log. As a result of such assaults Chelji also received injuries. On seeing this, he (PW-4) also proceeded towards that place. One Velji Kuber and Chaudhari Madhevbahi Velji also appeared, but in the meanwhile all the accused had run away. As his father Velji and brother Chelji were injured, both were taken to village in bullock cart and from there they were removed in a tractor for treatment to Visnagar Hospital. In FIR it was also stated about the motive of this incident. It was stated that on account of partition of agricultural properties belonging to his aunt Sakiben, one field had come to the share of his father and, therefore, the accused nurtured grudge and enmity against them and with a view to do away with life of his father and brothers, all the three accused armed with weapons had entered the field and attacked and caused injuries. It was further stated that owing to the attack by accused, his father Velji had become unconscious and was unconscious till the time FIR was lodged. Injured Veljibhai who was admitted in the Civil Hospital, Ahmedabad died on 8-5-1983 due to the injuries sustained by him and therefore, the charge under Section 302 was added, though initially Section 307 was indicated. On completion of investigation, charge sheet was filed. Prosecutions version mainly rested on the evidence of eye-witnesses. Accused persons pleaded innocence and false implication. It is to be noted that additionally the defence version was to the effect that the incident did not take place in the agricultural field as stated by the prosecution witnesses. The prosecution witnesses were the aggressors and in the scuffle the deceased fell down and the bullock cart ran over him.

(3.) The informant was examined as PW-4. His mother Hetiben was examined as PW-5. Cheljibhai brother of the deceased and son of the deceased was examined as PW-6. This witness is blind having lost eyesight since long. However, he has stated that he can identify his relatives, near and dear ones by their voice and that he used to visit the agricultural field with his family members. While narrating the incident, he stated that on the fateful day, time and place, he heard the cries of his father saying that he is being killed. At that time, his father was beneath the peepal tree. He also went there whereupon accused Nos. 2 and 3 started assaulting him. He narrated this fact as was told by the informant and other brother. He stated thereafter that he was dragged to the Neliya (a narrow road to agricultural field) and thereafter the accused ran away from there. Since Kanjibhai (PW-7) son of the deceased had also given similar narration, the trial Court held that the testimony is not trustworthy and reliable because there were material contradictions between the evidence of different witnesses and extended benefit of doubt. It was also noticed that the medical evidence did not fit in with the eye-witnesss version. It was, inter alia, observed that there was no sufficient and reliable circumstance which would show that there was any reason for the accused persons to go to the field of the complainant side and assault the deceased and his sons. The defence version that the complainants had gone to the Neliya and had obstructed the cart and as saulted the accused appears to be more probable. The absence of the name of one Shantaben in the FIR or in the police statement was also considered to be a suspicious circumstance. It was also observed that some independent witnesses whose presence was established were not examined.