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Judgment
Bankim N. Mehta, J.—This appeal arises out of the judgment and order dated 22.3.2000 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No. 56 of 1996 whereby the trial Court has convicted the appellant with other accused and sentenced them for imprisonment for life with fine of Rs. 1000/-, in default thereof, to undergo simple imprisonment for thirty days.
The prosecution case before the trial Court was that on 31.1.1996 one Kantilal Laxmidas filed a complaint (Exh.29) alleging that on the date of incident at about 9-00 AM, his father went by taking his bullock-cart to the agricultural farm. At that time, Madhavjibhai Ramji, his uncle, and five others came there, armed with weapons like axe, spear, pipe etc. to collect cotton crop. It was further alleged that on refusing to do so by his father, all the six persons got enraged and started beating his father. It was further alleged that accused Shantilal Kurjibhai (A1) caused injury on the head of his father with axe and accused Madhavji Ramji (A5) hit left leg of his father by stick with iron ring. It was also alleged that accused Kanulal Kurji (A2) caused injury by spear on the right leg and accused Mansukh Popat (A6), accused Laxmidas Karsan (A3) and accused Raju Madhavji (A4) beat him with stick and fist and kick blows. It is further alleged that on account of assault, his father was taken to village in the bullock-cart and thereafter taken to Junagadh Government Hospital for treatment. During the treatment, his father expired.
On the basis of the complaint, offence was registered for the offences punishable u/s 302 read with Sections 147, 148 and 149, alternatively, u/s 302 read with Section 120B of IP Code and investigation started. The appellant-accused with other five accused was arrested during the course of investigation. At the end of investigation, charge-sheet came to be filed against the accused for the aforesaid offences. As the offence of murder was triable by a Court of Sessions, the case was committed to the Sessions Court and it was registered as Sessions Case No. 56 of 1996.
Learned Additional Sessions Judge, Junagadh framed charge (Exh.1) against the accused for the aforesaid offences. The charge was read over and explained to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidences, incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded u/s 313 of Criminal Procedure Code, 1973 stated that they are innocent and false case is filed against them. After hearing the learned APP and the learned advocate for the accused, the learned trial Judge convicted all the accused and sentenced them. Being aggrieved by the said decision, the accused preferred appeal.
The appeal filed by other convicts were heard and decided by this Court (Coram : Bhagwati Prasad & Bankim N. Mehta, JJ.) by judgment dated 23.10.2008. The appeal of present appellant-accused No. 6 was not heard as he was absconding and office was directed to separate his appeal and place it on Board after he surrendered to the custody. Pursuant to the said order, it is stated that appellant-accused No. 6 has surrendered to the custody and, therefore, the appeal is placed on Board for final hearing.
We have heard learned advocate Ms. Sadhana Sagar for appellant-Mansukh Popat and learned APP Mr. Parikh for respondent-State at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court.
It appears from the prosecution case that the prosecution mainly relied upon two witnesses, namely, PW-3 Kantilal Laxmidas (Exh.28) and PW-9 Vajiben Laxmidas (Exh.50).
The prosecution evidence indicates that after the assault, injured Laxmidas was taken to Junagadh Civil Hospital and Medical Officer PW-1 Dr. Arjun Rathod (Exh.17) noticed the following injuries:
(i) An incise wound 4'' x 2'' bone deep on the parietal region on the head
(ii) A contused lacerated wound on the left leg with swelling
(iii)An abrasion of 1'' x 1'' on the right leg
The prosecution evidence further indicates that after the initial treatment at Junagadh Hospital, the injured was referred to Jamnagar Hospital and thereafter to Ahmedabad on 2.2.1996. It also indicates that the injured succumbed to the injuries on 3.2.1996 and, therefore, postmortem was performed upon the dead body of the deceased by PW-2 Dr Devan Desai (Exh.26). The postmortem report (Exh.27) indicates that the cause of death was shock due to injuries sustained. This evidence indicates that the death was homicidal in nature.
It appears from the prosecution case that the role attributed to the present appellant-accused No. 6 Mansukh Popat is injuries with stick and kick and fist blows to the deceased.
The evidence of PW-3 Kantilal Laxmidas (Exh.28) indicates that he himself, his mother and his father went to the agricultural farm on the date of incident, but in the complaint (Exh.29), there is no reference of his mother being with his father and, therefore, it appears that the mother has been introduced in the deposition with a view to support his version and to create another eye-witness to the incident. The witness has made allegation in the deposition that appellant-accused No. 6, Mansukh Popat, gave stick and pipe blows as well as kick and fist blows. Therefore, the witness has improved his version with regard to role of the appellant-accused in causing injury to the deceased.
The evidence of PW-9 Vajiben (Exh.50) indicates that the accused were in the agricultural farm and when her husband found them collecting cotton he went there and all the accused surrounded her husband with weapons and started speaking on high voice and as her husband shouted to save, she with her son PW-3 Kantilal went running to the farm. In the cross-examination, she has admitted that she does not know certain facts whether mentioned in the police statement or not as her statement was given by her son. It also appears that the statement of the witness was recorded on 5.2.1996. Therefore, after about six days of the incident.
In view of above evidence, the participation by appellant-accused No. 6-Mansukh Popat in the offence appears to be very doubtful. A coordinate Bench of this Court, wherein I was also one of the members, while deciding the appeal filed by the co-convicts, has observed as under:
If we consider the evidence produced by the prosecution, then the evidence of mother of Kantilal namely Vajiben was recorded late. She was not referred to be an eye witness in the FIR. This fact persuades us to conclude that she was not an eye witness at all because if she was present then the FIR which was given by eye witness should have mentioned her name in the FIR. This late recording of the evidence of this witness also puts us on guard and in that background her evidence is required to be discarded.
Now we are left with the testimony of witness complainant Kantilal. According to Kantilal, six persons assaulted his father. There are three injuries and he distributed the injuries to three accused appellants and other three accused persons are left with no assignment of any injury caused by them. This kind of adjustment of injuries and distribution of injuries amongst accused persons shows that there was an intention of the complainant to implicate as many as he thought. If this inference is taken then three accused persons who were though stood with weapons have not participated in giving any injury. This fact goes to establish that there was no common intention or approach of the group of people to make any assault on the deceased. There is no such common object or intention otherwise nothing prevented accused Nos. 3, 4 and 6 from making any specific injuries on the deceased. Thus, their case has to be viewed with suspicion towards prosecution and has to be considered to be a case of over implication.
Then comes the case of accused Nos. 3, 4 and 6. Out of these three accused, accused No. 6 is absconding. Therefore, his appeal is not decided. Appeal of accused Nos. 3 and 4 is decided by this judgement. Since we find that they were not the participants and it was mainly a case of over implication and therefore their appeal is required to be accepted and they are ordered to be acquitted of the charges levelled against them.
We have also examined the aforesaid observations in the context of appeal of this appellant-accused. On examination of record, we find that the observations made therein are applicable qua appellant -accused No. 6 Mansukh Popat also.
In view of the above, the appeal qua appellant-accused No. 6 Mansukh Popat is required to be allowed and conviction and sentence imposed upon him is required to be set aside and he is required to be set at liberty forthwith giving him benefit of doubt.
In view of the above, the appeal qua appellant No. 6 - Mansukh Popat is allowed. His conviction and sentence recorded in the judgment and order dated 22.3.2000 passed by learned Additional Sessions Judge, Junagadh in Sessions Case No. 56 of 1996 is set aside. He be set at liberty forthwith, if not required in any other case. Fine paid, if any, be refunded to him.