STATE Vs. KOLIS HIRA BHAGA AND ORS.
LAWS(GJH)-1960-7-24
HIGH COURT OF GUJARAT
Decided on July 26,1960

STATE Appellant
VERSUS
Kolis Hira Bhaga Respondents


Referred Judgements :-

SEBASTIAN DAVID V. SIRKAR PROSECUTOR [REFERRED TO]
JUMMAN BANSA HAZARA SINGH VS. STATE OF PUNJAB [REFERRED TO]


JUDGEMENT

Raju, J. - (1.)THE learned Sessions Judge acquitted all the four accused of the charges under Section 302 I. P. Code but convicted all of them under Section 324, I. P. Code, and sentenced each of them to imprisonment till the rising of the Court. In regard to the acquittal of all the four accused under Section 302 read with Section 34, I. P. Code, the State has filed an appeal from acquittal.
We hold that there are compelling reasons to set aside the order or acquittal, that the guilt of accused No. 1 under Section 302, I. P. Code, and of accused Nos. 2 and 3 under Section 324, I. P. Code, is proved beyond the possibility of any reasonable doubt, and that the learned Sessions Judge should not have acquitted accused Nos. 1, 2 and 3.

The learned Sessions Judge held that Bhagwan was murdered on 14 -1 -59 at 10 -30 a. m. near the Chora, that it was accused Nos. 1, 2, 3 and 4, who had caused injuries to Bhagwan near the Chora, that at that time accused No. 1 was armed with a spear and a dagger, accused No. 3 Govind had a hatchet, accused No. 4 was armed with an iron -shod stick and the accused No. 2 took up the sword of the deceased Bhagwan near the Chora. But the learned Judge held that the accused were entitled to the benefit of reasonable doubt. As regards the simple injuries with dangerous weapons caused to Mava, Bhana, Dhana, Kadvi and Moti, he held that all the four accused had caused these injuries and that they were guilty under Section 324, I. P. Code.

(2.)IN his judgment after discussing the evidence of 16 alleged eye -witnesses of whom 13 were eyewitnesses to the incident at the Panchayat office and 3 to the incident at the Chora, the learned Sessions Judge observed that at the Panchayat office it was crystal clear that accused Kana opened the attack on Bhagwan that at the Panchayat office, Bhagwan stabbed Kana with a dagger, but was followed and pursued by accused No. 1 Hira, who was armed with a spear and a dagger, and accused No. 3 Govind who was armed with a hatchet. Till learned Sessions Judge also observed that it is crystal clear that at the Chora there was a fight between. Bhagwan on the one side and the four accused on the other, in the course of which Bhagwan could inflict the sword injuries on the three accused before he fell down. He fell down because a spear injury was inflicted on him by Hira, accused No. 1. As he fell down, naturally his sword and dagger fell down, which Kana, accused No. 2, picked up. In the opinion of the learned Sessions Judge the case before him was one where if any one had the right of private defence, it was Bhagwan the deceased. The learned Sessions Judge also rejected the defence theory that at the Panchayat office it was Bhagwan who had attacked Kana. According to the learned Sessions Judge it was accused No. 2 and No. 4 who started attack on Bhagwan at the Panchayat office. The learned Sessions Judge further observed that the right of private defence set up by the accused is not proved. However, the learned Sessions Judge relied on the observations in Sebastian David v. Sirkar Prosecutor,, AIR 1950 TC. 9, and following this ruling he observed that as the eye -witnesses had suppressed the simple and obvious fact that it was the deceased Bhagwan, who had caused injuries to the three accused, the possibility that the accused were acting in the right of private defence cannot be denied. The learned Judge then proceeded to observe that he felt reasonably certain that in fact it was a case of mutual free determined fight between the rival factions. The learned Sessions Judge therefore thought that the accused were entitled to the benefit of reasonable doubt and that it is possible and likely that they were acting in the right of private defence as it was Bhagwan who had attacked the accused.
(3.)BOTH the findings of the learned Sessions Judge and the reasons given by him for such findings are inconsistent and illogical. He has held that Bhagwan was murdered on 14 -1 -59 at 10 -30 a. m. near the Chora and that it was accused Nos. 1, 2, 3 and 4 who had caused the injuries to Bhagwan near the Chora. After this finding, the only questions left to be determined were whether the accused had acted in the right of private defence and whether they exceeded the right of private defence. Having held that it was the four accused who caused the injuries to Bhagwan and thereby caused the death of Bhagwan, the learned Sessions Judge did not proceed to frame the point for determination whether the accused had acted in the right of private defence and whether the right had been exceeded. It is true that this question has been discussed at length in the judgment. It is also difficult to understand his finding that the accused were entitled of the benefit of reasonable doubt in view of his earlier finding that it was the four accused who had caused injuries to Bhagwan near the Chora. The learned Sessions Judge had no doubt as to whether the accused had caused the injuries or not but his doubt appears to be on till point whether they were acting in the right of private defence. In his judgment the learned Sessions Judge has not considered the question whether the accused or any of them had exceeded the right of private defence, and further at several places in his judgment the learned Sessions Judge has clearly stated that the right of private defence is not proved. However, the learned Sessions Judge has held that the accused are entitled to the benefit of reasonable doubt and it is possible and likely that they were acting in the right of private defence.
The learned Sessions Judge has accepted the evidence of these witnesses and has therefore given a finding that it was accused Nos. 1, 2, 3 and 4 who had caused injuries to Bhagwan near the Chora.

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