STATE OF GUJARAT Vs. HIRA BHAGA
LAWS(GJH)-1960-7-8
HIGH COURT OF GUJARAT
Decided on July 26,1960

STATE OF GUJARAT Appellant
VERSUS
HIRA BHAGA Respondents


Referred Judgements :-

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



Cited Judgements :-

ASHOK ATMARAM VS. STATE OF GUJARAT [LAWS(GJH)-1979-8-14] [REFERRED]
SIRAJ MOHAMMAD MALEK VS. STATE OF GUJARAT [LAWS(GJH)-2012-3-26] [REFERRED TO]
MUKESH KUMAR VS. STATE OF CHHATTISGARH THROUGH DISTRICT MAGISTRATE [LAWS(CHH)-2017-4-36] [REFERRED TO]
DURGA PRASAD GUPTA VS. STATE OF CHHATTISGARH [LAWS(CHH)-2017-4-61] [REFERRED TO]


JUDGEMENT

V.B.RAJU - (1.)RAJU J. This judgment will dispose of Criminal Appeal No. 25/60 and Criminal Revision Application No. 8/60 arising out of the same judgment by the learned Sessions Judge Junagadh in Sessions Case No. 10 of 1959 in which four accused Kolis Hira Bhaga Kana Bhaga Govid Bhaga and Meram Jeram were charged under sec. 302 read with sec. 34 of the Indian Penal Code for causing the death of one Bhagwan Bhaya and also under sec. 324 read with sec. 34 of the Indian Penal Code for having caused hurt with dangerous weapons to prosecution witnesses Mava and Bhana. The learned Sessions Judge acquitted all the four accused of the charges under sec. 302 I. P. Code but convicted all of them under sec. 324 I. P. Code and sentenced each of them to imprisonment till the rising of the Court. In regard to the acquittal of the four accused under sec. 302 read with sec. 34 I. P. Code the State has filed an appeal from acquittal. We hold that there are compelling reasons to set aside the order of acquittal that the guilt of accused No. 1 under sec. 302 I. P. Code and of accused Nos. 2 and 3 under sec. 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.
(2.)The learned Sessions Judge held that Bhagwan was murdered on 4-1-59 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 hatchets 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 sec. 324 I. P. Code. In his judgment after discussing the evidence of 16 alleged eye-witnesses of whom 13 were eye-witnesses 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 and that at the Panchayat Office Bhagwan stabbed Kana with a dagger but was followed and pursed 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. The 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 defense it was Bhagwan the deceased. The learned Sessions Judge also rejected the defense 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 defense set up by the accused is not proved. However the learned Sessions Judge relied on the observations in Sebastian David and another vs. Sirkar Prosecutor A.I.R. 1950 Travancore-Cochin P. 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 defense 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 defense 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 defense and whether they exceeded the right of private defense. 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 defense 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 to 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 the point whether they were acting in the right of private defense. 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 defense and further at several places in his judgment the learned Sessions Judge has clearly stated that the right of private defense is not proved. However the learned Sessions Judge has held that the accused are entitled to the benefit of reasonable doubt as it is possible and likely that they were acting in the right of private defense.
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