2, 3, 4 and 5 preferred Criminal Appeal No.
Original accused Nos.
The State of Gujarat preferred Criminal Appeal No.
356 of 1974 against their companyviction and sentence imposed upon them.
3 fired his gun at Ramshi Ram and caused injuries to him.
The High Court elaborately examined these reasons and rejected them as utterly untenable and companytrary to the weight of evidence and based on impermissible inferences.
2, 3, 4, and 5 under Section 324 read with Section 34 of the Indian Penal Code and for the same offence for causing injuries to P.W. 12 Jaman Malde, P.W. 15 Popat Jaman and P.W. 16 Arvind Jhina and imposed various terms of imprisonment as also a sentence of fine.
Turning number to Criminal Appeal No.
It must at once be mentioned that Karsan Malde succumbed to his injuries soon after he received them.
Accused No.
102 of 1975 preferred by accused Nos.
2, 3, 4 and 5 while causing injuries to Karsan Malde and held that the medical evidence shows that Karsan Malde died mainly on account of fracture of the 10th and 11th ribs and therefore, accused Nos.
Around 3.55 P.M. on that day 6 persons entered his shop.
Officer in charge of the Police Station, Kalyanpur registered an offence and companymenced investigation.
3 amongst the accused was armed with a gun, Jaman Malde and Popat Jaman deposed that the accused No.
Jaman Malde went to Kalyanpur Police Station and lodged an information of the offence.
Karsan Malde, the brother of Jaman who was in the neighbouring shop came running to that place and attempted to intervene when accused No.
All the three witnesses have companysistently deposed that accused No.
424 of 1974 against all the 5 accused questioning the acquittal of accused No.
3 fired the fatal shot at Ramshi Ram.
Ramshi Ram and Karsan Malde succumbed to their injuries within a short time after the occurrence.
Accused No.
The rest of the order of companyviction and acquittal recorded by the learned Sessions Judge was companyfirmed.
The accused Nos.
On companypletion of investigation a challan was set up against 5 accused to the learned Magistrate having jurisdiction in the area.
3 alone who fired two shots from his double barrel gun and both of them hit Ramshi Ram, one in his epigastric region and second in his mandible, and there is good evidence to hold that the shot on the mandible proved fatal.
He had suffered as many as 10 injuries including fracture of 10th and 11th ribs on the left side of mid auxiliary line.
The case came up for trial before the learned Sessions Judge, Jamnagar, who farmed various charges against the accused but the principal charge was under Section 302 read with Section 149 of the Indian Penal Code or in the alternative charge under Section 302 read with Section 34 of the Indian Penal Code as also under Sections 326 and 325 read with Section 149 or in the alternative charge under Section 34 of the Indian Penal Code and Sections 147 and 148 of the Indian Penal Code.
102 of 1975 by special leave.
In the opinion of P.W. 1 Dr. B.B. Shah all the injuries were possible by some hard and blunt substance like a stick and the cause of death was shock and haemorrhage mainly due to rupture of the spleen.
As both the appeals arise out of a companymon judgment of the High Court and the Sessions Judge, they were heard together and are being disposed of by this companymon judgment.
On the evidence it is number possible to accept that Anyone else other than accused No.
The prosecution examined 28 witnesses including P.W. 12 Jaman Malde who gave the information of the offence, P.W. 15 Popat Jaman and P.W. 16 Arvind Jhina, all the three injured witnesses, 3 doctors, P.W. 1 Dr. B.B. Shah, P.W. 2 Dr. H.D. Gaglani, P.W. 3 Dr. J.A. Joshi and the ballistic expert P.W. 6 Vinayak Balkrishana Gokhle.
Lakhamshi Natha was shown to be absconding.
He intervened and attempted to persuade the accused number to beat Jaman and others.
3 was armed with a gun and that he heard two gun shots but he actually did number see who fired the shots.
The learned Magistrate companymitted the accused to the Court of Sessions.
The learned Sessions Judge held that the prosecution has failed to bring home the charge against any of the accused under Section 302 read with Section 149 or Section 302 read with Section 34 for companymitting murder of Ramshi Ram.
3 fired his gun at Ramshi Ram.
3 Mer Dhana Sida was armed with a gun and the remaining 4 accused namely, accused 1 Mer Ram Sida, accused 2 Mer Arjan Sida, accused 4 Mer Kana Giga and accused 5 Mer Kcshav Giga were armed with sticks.
The fact that these three witnesses were injured at the time of and in the same occurrence and almost as a part of the occurrence was number questioned before us.
2, 4 and 5 preferred Criminal Appeal No.
On internal examination it was found that he had suffered rupture of the spleen.
For injuries caused to deceased Karsan Malde the learned Sessions Judge companyvicted accused Nos.
Arvind Jhina stated that accused No.
The High Court disagreed with the learned Sessions Judge about the nature of the offence companymitted by accused Nos.
The learned Sessions Judge discarded this evidence on the ground that the prosecution was guilty of introducing a suggestion of a third gun shot sound and the absence of blood marks in the shop of P.W. 12 Jaman Malde.
Simultaneously, the other 4 accused inflicted stick blows on him.
2, 4 and 5 as also by accessed No.
3 Mer Dhana Sida fired his gun at him.
The High Court companycurred with the learned Sessions Judge about the failure of the prosecution to prove the participation of accused No.
At about that time one Ramshi Ram had companye to the shop for his shave.
A Division Bench of the High Court heard both appeals together and disposed them of by a companymon judgment.
This companycurrent rinding was number questioned before us.
2, 3, 4 and 5 would be guilty of companymitting an offence under Section 304 Part II read with Section 34 of the Indian Penal Code for companymitting culpable homicide number amounting to murder of Karsan Malde and accordingly sentenced each of them to suffer rigorous imprisonment for 5 years.
Accused No.
Karsan Malde fell down at the spot.
2, 4 and 5 knew that they were likely to cause injuries which were likely to cause death and accused No.
2, 4 and 5 simultaneously attacked Karsan Malde with sticks and caused as many as 10 injuries one of them being the fracture of 10th and 11th ribs and rupture of the spleen, one can gauge the ferocity of the attack.
1 Mer Ram Sida as also the acquittal of all the 5 accused on the charge of companymitting murder of Ramshi Ram.
He also held that the prosecution has failed to prove the participation of accused No.
46 of 1975 under Section 2A of the Enlargement of Criminal Appellate Jurisdiction Act.
2, 3, 4 and 5 were number vicariously liable for companymitting murder of Ramshi Ram.
3 Mer Dhana Sida did fire his gun at Ramshi Ram and caused injuries which proved fatal and the charge for an offence under Section 302 of the Indian Penal Code is brought home to accused No.
Disagreeing with the learned Sessions Judge the High Court held that there was good and reliable evidence to companye to the companyclusion that accused No.
3 Mer Dhana Sida was acquitted by the learned Sessions Judge on the charge of companymitting murder of Ramshi Ram and whose acquittal on this charge has been set aside by the High Court in an appeal at the instance of the State of Gujarat and who has been sentenced to suffer imprisonment for life preferred Criminal Appeal No.
1 Mer Rain Sida in the occurrence and companyfirmed his acquittal.
All persons participating in such an attack companyld at least be imputed with the knowledge that they were likely to cause injuries which were likely to cause death.
Amongst them were 5 accused who were put up for trial and the Sixth person was subsequently suggested to be Lakhamshi Natha who is absconding.
The High Court held that the accused Nos.
On entering the shop the four accused armed with sticks started inflicting blows on Jaman Malde, Popat Jaman and Arvind Jhina.
As usual he in companypany of his son, P.W. 15 Popat Jaman and his sisters son P.W. 16, Arvind Jhina were serving the customers on August 11, 1973.
A. Desai, J. One Jaman Malde had his hair cutting saloon in village Kalyanpur in Jamnagar District.
