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1993 DIGILAW 107 (GUJ)

MOMNA BABU JAMAL v. STATE

1993-02-26

J.N.BHATT

body1993
J. N. BHATT, J. ( 1 ) FIVE accused persons including the present three appellants came to be charged and tried for the offences punishable under Sections 143 147 and 148 and also for the offences punishable under Sections 323 and 325 read with Section 149 of the Indian Penal Code. Upon the trial the learned Additional Sessions Judge convicted the present appellants who are the original accused Nos. 2j 4 and 5 and acquitted the original accused Nos. 1 and 3 from the charges against them. Appellant No. 1-original accused No. 2 is sentenced to suffer rigorous imprisonment for six months for the offence punishable under Section 323 of the Indian Penal Code. Appellant No. 2 original accused No. 4 is sentenced to suffer rigorous imprisonment for 3 years for the offence punishable under Section 325 of the Indian Penal Code. Appellant No. 3 original accused No. 5 is sentenced to suffer rigorous imprisonment for six months for the offence punishable under Section 323 of the Indian Penal Code. He is also sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 325 of the Indian Penal Code. Therefore the original accused Nos. 2 4 is 5 who are the appellants herein have questioned the legality and validity of the conviction and sentence order passed against them by the learned Additional Sessions Judge in Sessions case No. 39 of 1985 by invoking the aids of the provisions of Section 374 of the Criminal Procedure Code 1973 (Code for short ). ( 2 ) THE incident out of which two Sessions Cases arose took place on 5-12-1984 at about 8. 30 a. m. at village Haripur. In that the prosecution alleged that one Desa Deva and his wife Amri Desa were staying at village Haripur and they had constructed a house in which they were living at the relevant time. They had five sons. Appellants Nos. 2 and 3 who are the original accused Nos. 4 and 5 were staying in village Haripur and accused No. 5 was the Sarpanch of that village at the time of the incident. They had five sons. Appellants Nos. 2 and 3 who are the original accused Nos. 4 and 5 were staying in village Haripur and accused No. 5 was the Sarpanch of that village at the time of the incident. According to the version of the prosecution in the morning on the day of the incident Parshottam and Vira had gone to the house of their father to request him to sent Rajshi for the purpose of watering their crops as Parshottam had to go out of his house for the treatment of his wife. Rajshi was sent there and Vira returned from his fathers house and just had gone to the bazar to purchase pan. Parshottam continued to sit at the house of his father. It was alleged that at that time six persons came there with arms. It was alleged that original accused Nos. 1 2 and 3 were armed with sticks and accused No. 4 was armed with iron pipe. P. W. 1 Vira Desa the complainant has a Vandi (compound wall) which original accused No. 5 Muradali Punia wanted to demolish for making way for going to the other side of the village. It was objected by Desa. Thereafter there was altercations between them. It is the prosecution case that the accused persons thereafter started giving blows on the injured persons and they were removed to the hospital for treatment where the First Information Report was lodged by Vira Desa. Father of the complainant Desa had also sustained fractures. This is the sum and substance of the story of the prosecution case. ( 3 ) ACCORDING to the defence version there was Khad near the compound wall of the complainant Vira Desa and they had reason to demolish the said compound wall. The accused persons further contended that they had constructed a wall near the Khad about ten days before the incident and a part of that wall was demolished by the father of the complainant i. e. Deva. Thereafter they had sent original accused Nos. 1 2 and 3 to reconstruct the said part of the wall with stones. It was objected by Desa Deva. Thereafter they had sent original accused Nos. 1 2 and 3 to reconstruct the said part of the wall with stones. It was objected by Desa Deva. Therefore it is the contention of the defence that while in the process of reconstruction of the said wall near the Khad the accused persons were attacked and they were severely beaten and as such on account of the assault one Jiva Punja sustained fatal injuries. ( 4 ) THERE is no dispute about that cross cases were instituted and in one of the cases the charge was of murder and the accused persons were charged for the offence of murder of Jivabhai and for causing injuries to original accused Nos. 4 and 5. ( 5 ) IN order to substantiate the offence and the charges against the accused persons the prosecution has placed reliance on the evidence of 18 Prosecution Witnesses. The prosecution also relied upon the documentary evidence about which reference will be made as and when required at an appropriate stage. ( 6 ) THE learned Counsel for the appellants/ original accused persons has seriously contended that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. In that it is contended that the accused persons are entitle to the benefit of doubt as the origin of the incident is not proved and the injuries on the person of the accused are also not explained by the prosecution. ( 7 ) THERE is no dispute about the fact that accused No. 4-Abdul Punja has sustained injuries. The medical certificate in respect of the injuries sustained by him is produced at Ex. 46. Original accused No. 5-Muradali Punja had also sustained injuries. There was one C. L. W. with bleeding present on the head and the medical certificate in respect of the injury sustained by him is produced at Ex. 47. It is true that the aforesaid injuries sustained by the above two accused persons are not explained by the prosecution. The injuries sustained by them cannot be said to be serious. However there is no dispute about the fact that one of accused persons Jiva Punja has sustained serious injuries in the fight and he succumbed to the same. Medical certificate in respect of the injuries sustained by him is produced at Ex. 48. Post-mortem report in respect of autopsy is produced at Ex. 48. However there is no dispute about the fact that one of accused persons Jiva Punja has sustained serious injuries in the fight and he succumbed to the same. Medical certificate in respect of the injuries sustained by him is produced at Ex. 48. Post-mortem report in respect of autopsy is produced at Ex. 48. It is an admitted fact that the prosecution has not been able to explain the injuries sustained by Jiva Punja. Thus the prosecution has failed to explain the injuries sustained by the deceased. Therefore it is seriously contended that since the prosecution has failed to prove the injuries sustained by the accused persons the prosecution has concealed the origin of the incident and therefore this aspect casts material shadow of doubt on the authenticity of the version of the prosecution. Reliance is also placed on a decision of the Supreme Court in the case of State of Rajasthan v. Madho AIR 1991 SC 1065 ( 8 ) HAVING examined the facts and circumstances emerging from the record of the present case it becomes crystal clear that the prosecution has failed to explain the aforesaid injuries sustained by the accused Jiva Punja which shows that the gist and the genesis of the prosecution version is concealed and the contention that the origin of the incident is suppressed by the prosecution cannot be ruled out. The ratio of the decision of the Supreme Court in State of Rajasthan v. Madho (supra) is fully attracted to the facts of the present case. Attention of the Court is also invited to the observations made by the learned Additional Sessions Judge in paras 45 54 and 55 of the impugned judgment. ( 9 ) IN view of the observations as aforesaid this court is of the clear opinion that the present appellants/original accused persons are entitled to the benefit of doubt. Therefore the appeal is required to be allowed and the appellants are required to be exonerated from the charges against them. IN the result the appeal is allowed. The appellants/original accused Nos. 2 4 and 5 are hold not guilty and they are therefore acquitted from the said charges against them and the impugned order of conviction and sentences is quashed. Bail bonds shall stand cancelled forthwith. .