- (1.) Persons (hereinafter referred to as A-1 to A-1 1 respectively) were tried by the Additional Sessions Judge, Gondal for riotingwith deadly weapons and committing the murder of Dana Pitha in prosecution of their common object. The trial court acquitted eight of them and convicted and sentenced A-2, A-6 and A-7 under section 302 Indian Penal Code. Against the judgment of the trial court two appeals were preferred: one by the three convicts and the other by the State challenging the acquittal of A-1, A-3 to A-5 and A-8 to A-10, but not of A-1 1. In disposing of the appeals by the impugned judgment the High court upheld the conviction of A-2, A-6 and A-7 (after altering the conviction of A-7 to one under S. 302/149 Indian Penal Code) an4 the acquittal of A-9 and A-10, but reversed the acquittal of A-1, A-3 to A-5 and A-8 and convicted them under S. 148 and 302/149 Indian Penal Code. Against dismissal of their appeal A-2, A-6 and A-7 has filed one of these two appeals (Criminal No. 598 of 1987 while the other one has been filed by A-1, A-3 to A-5 and A-8, against their conviction and sentence as recorded by the High court. Both the appeals have been heard together and this judgment will dispose of them.
(2.) Bereft of details the prosecution case is as under: (A) The deceased Dana Pitha hailed from Village Ambardi in Gondal taluka where all the accused also live. A month prior to the incident with which we are concerned in these appeals a quarrel took place between Accused 1 and 2 and members of Dana Pitha's family in their village for which a complaint was lodged at the former's instance with the police against Dana Pitha and his two sons. (B) IN the morning of 26/4/1981 Dana Pitha had gone to the market- place of their village while his son Ramji Dana (Public Witness 1 along with his two brothers had gone to the field to work as labourers. Uga Lakha (Public Witness 3, who hails from Village Machharda, had come to the house of Dana Pitha in that morning and having Gome to know that Dana had gone to the market went there. On their way back from the fields at or about 8.30 a. m. Ramji proceeded towards their house in the Harizan Vas to leave the shovel he was carrying and his two brothers went to the village market. While Ramji was going home he saw his father Dana and Uga Lakha also going towards their house. (C) For going to the house of Dana one has to go along a road which runs north to south. That road meets a lane which runs east to west and in that lane is the house of Dana. While proceeding along the road when Dana and Uga reached near the house of A-io, which is on its eastern side, A-9 and A-10 threw stones from the terrace of the house which hit deceased Dana. Immediately thereupon the other accused persons rushed there from the adjoining deli of Gova Daya armed with various weapons including dharia, axe, pickaxe (trikam) , pipes and sticks and started beating Dana with their respective weapons. As a result of such beating Dana fell down dead. The accused persons then fled away. (D) In the meantime Ramji, who had come out of their house after leaving the shovel, heard the shouts of Uga for help and rushed to the scene of occurrence. Devuben, who was sitting in the osari of her house heard her daughter, who was playing in the lane, crying and she also ran there. (E) An information about the incident was given to the police station over phone by Uga Lakha and on receipt of the same Jamadar Shri Shukia came to the village. He recorded the complaint of Ramji and sent it to the 549 police station. On that complaint a case was registered and Shri V. S. Gupta, Assistant Superintendent of Police took up investigation. Shri Shukia then went to the scene of offence and prepared the inquest panchnama as also the panchnama of the scene of offence. He then recorded the statements of Devuben, Uga Lakha and other witnesses. After completion of investigation police submitted charge-sheet and in due course the case was committed to the court of Session.
(3.) The accused pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated.;