R.S.Bachawat, J. - (1.) Aher Kana Laxman, Aher Nanu Laxman, Aher Mulu Laximan, Aher Nirmal Laxman, Bharwad Ghola Karamchi, Bharwad Jodha Bhala were convicted by the Sessions Judge, Rajkot under Sections 302 and 394 and 323 all read with Section 149 and also under Section 148 of the Indian Penal Code and under Section 136 of the Bombay Police Act and each of them was sentenced to imprisonment for life six months rigorous imprisonment and three years rigorous imprisonment respectively on the first three counts and six months rigorous imprisonment on the fourth count and four months rigorous imprisonment on the fifth count. The substantive terms of imprisonment were directed to run concurrently. Appeals were filed by the convicted persons in the High Court of Gujarat. The High Court set aside the orders of convictions and sentences passed on Nirmal, Ghela and Jodha under Section 148 of the Indian Penal Code but it affirmed the rest of the convictions and sentences. All the convicted persons filed a petition for special leave to appeal against the order of the High Court. This court dismissed the petition with respect to Kana but granted to Mulu, Naru, Nirmal, Ghela and Jodha special leave to appeal against the above order.
(2.) The prosecution case is that on July 19,1964 at about noon-time when Janmchamad and P.W. 15 Babu were proceeding in a tonga near the old customs chowky, Rajkot, Kana asked Janmohammad to stop the tonga. As soon as Janmohammad stopped the tonga, Kana whipped out a knife from his waistband and stabbed him on his left side. When Janmohammad and Babu alighted from the tonga Mulu carrying a dharia, Nanu carrying a knife, Nirmal carrying an iron-pipe, Ghela carrying a stick and Jodha carrying a stick came running, pounced upon Janmohammad and Babu and attacked them with their respective weapons. Nirmal struck Babu's head with the iron-pipe. Nanu stabbed Janmohammad on his right side with a knife. Mulu gave a dharia blow on Janmohammad's left ear, Kana gave another blow to Janmohammad on the left side near the arm-pit. Mulu aimed another dharia blow at Janmohammad, but on his being pushed by Janmohammad the dharia blow struck Kana on his cheek. As soon as PW 16 Suleman intervened Nirmal struck him with the iron-pipe, Ghela and Jodha gave him stick blows and Nanu gave a knife blow on his palm. On an alarm being raised all the six assailants ran away.
(3.) The following injuries were found on the dead body of Janmohammad: "(1) An incised wound 3" below left axilla posterior axillary fold 1" x 1/4 x cavity deep, horizontal. (2) An incised wound cutting the pinna at its root of the left ear hanging with a tag from below. (3) An incised wound 11/4 x 1/4" x muscle deep left flank posteriorly oblique in direction. (4) An incised wound 11/2" x 1/2 x cavity deep in the right flank 21/2" above and middle to anterior superior illine spine oblique. Coils of intestines were coming out from his incised wound.";