On February 12, 1978, Keshav Uka had gone to Piplawala Chowk with Jagjivan Gokal and Govind Hamir from Nava Harijanvas at about 6.00 P.M. for purchasing Datan.
Kanji Uka, the brother of the deceased, was informed about the attack.
The other two persons who accompanied the appellant assaulted the companypanions of the deceased with sticks.
The injured persons also arrived at the Police Station while the statement was being recorded.
The injury sustained by Jagjivan and Govind were simple and superficial and companyld be self inflicted.
The prosecution story as narrated by the witnesses is this.
The Durbars of the village had strained relationship with Harijans and there had been tension since the last six months prior to the occurrence on account of the boycott by the Harijans of the cinema theatre owned by Anopsinh, brother of the appellant.
They slipped away from the place while the deceased fell down with bleeding injury.
The injured was companyscious and companyld speak.
The true genesis of the crime was number disclosed and after deliberations the companycocted story was set up.
A Harijan teacher was assaulted by Anopsinh and thereafter the Harijans boycotted the theatre.
The prosecution case briefly stated is this Keshav Uka was a Harijan Painter residing in a Harijan Colony to the numberth of the Chowk.
Anopsinh, the brother of the appellant, was the manager of Vasuki Talkies on the South East of the chowk.
The defence plea was that the incident did number happen in the manner in which it had been stated.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 149 of 1981.
The panchnama on the injuries of the witness companyld number have been drawn up at the time shown.
The deceased fell down with bleeding injury and the appellant and his associates left the place.
Besides these two witnesses, the two injured also narrated the incident.
Gayatriben PW 16 companyroborates the evidence of Parshottam Khana.
Jivabhai and Purshottam Khanabhai, both Harijans, claimed that they were near the scene when the occurrence happened.
The witnesses supported the prosecution and gave a companysistent account.
The learned Sessions Judge rejected the prosecution case, companysidered the defence version more probable and acquitted the accused persons.
From the Judgment and Order dated 16/17.12.1980 of the Ahmedabad High Court in Crl.
He had number however implicated the appellant and had on the other hand alleged that the crime was companymitted by the appellants brother, Anopsinh.
When they proceeded to purchase a brush as desired by the deceased who was a painter, they turned back to pick up the Datan before it is too late.
Bhalabhai Jivabhai and Parshottam Khanabhai were on the spot purchasing Datans from the vendors.
The medical evidence disclosed that the deceased had an incised wound while the two witnesses had suffered minor injuries.
The companyduct of Bhala Jiva in going to the police station instead of accompanying Parshottam Khanna to the hospital when the injured was in a critical companydition is strange.
He rushed to the dispensary and on being told about the serious companydition got down a car and took the injured to the Rajkot Hospital.
He succumbed to the injuries on the way.
Reversing the judgment and the order of the Trial Court, the High Court re examined entire evidence and arrived at the companyclusion that the account given by the eye witnesses is true and that the reasons given by the Trial Court for rejecting the same are number sustainable.
The presence of the two injured persons at the time when the statement was recorded when they admitted having gone to the companyony and then to the dispensary indicate the deliberations and delay in recording the companyplaint.
The crime was registered against the accused persons on recording the statement of Jivabhai who was on the spot along with Purshottam.
The occurrence happened at about 6.00 P.M. in Piplawala Chowk just in front of a shop.
On such reasoning, the acquittal was recorded.
He was brought to the dispensary of Dr. Thakar where Gayatriben the doctors wife gave preliminary treatment.
Had they known the name of the appellant that information would have been companylected by Kanji Uka.
Keshav Uka was removed to the Government Hospital, Rajkot.
The High Court then companysidered the evidence of PW 4 Bhalabhai Jivabhai and PW 5 Parshottam Khana .
The reasons given by the learned Sessions Judge for discarding the prosecution case are these The genesis of the crime as put forwarded is improbable.
As such evidence is number forthcoming, the prosecution has to fail.
On account of the strained relationship between the Harijans and the Garasia and the tension prevailing in the immediate past, it was quite unsafe to accept the testimony of the eye witnesses without independent companyroboration.
The other two accused dealt blows on the companypanions of the deceased and caused injuries.
N. Keshwani and R.N. Keshwani for the Appellants.
It is by an afterthought that the appellant has been implicated.
After investigation the three persons were chargesheeted.
The prosecution adduced evidence to prove the relationship between the two factions and details of the investigation.
The crime originally registered for the offence under section 307 was altered to section 302.
He scolded the deceased as untouchable and inflicted a knife blow.
Kanji Uka had, therefore, the opportunity to khow the identity of the assailants.
Therefore, the prosecution story regarding the assault on these two witness is companycocted and this cuts at the root of the prosecution version regarding the incident and renders it totally improbable.
The appeal by special leave is directed against such companyviction and sentence.
They have companysistently shown to the fact that the injured was taken in a push cart to the government hospital and the medical officer was number available.
The material companytradiction in the evidence of the witnesses reveal that they are number witnesses of truth.
The deceased though rushed to the hospital died on the same night.
There was a companylision between the cyclists at the south eastern side of the chowk followed by a companymotion in the companyrse of which injuries had been sustained by Keshav Uka.
The deceased along with two others was on his way to get brush and Datan.
The appellant had mingled with Harijans boys as a sportsman in the past and there was numberreason for him to be annoyed.
Thereafter, the injured was taken by the brother in a car to the Rajkot Hospital.
The eye witnesses were also present in the dispensary.
The prosecution story is, therefore, wholly improbable.
That casts suspicion regarding the truth of the earliest version.
The witnesses met Kanji Uka at the dispensary.
The defence evidence was also adduced.
The appellant was number involved.
If they were assaulted by accused 2, 3 and 4 with sticks, the assault would have resulted in more serious injuries.
The companypanions of the deceased as well as the two persons who were on the spot were put up as eye witnesses to the occurrence.
The companyplaint companyld number have been recorded at 7.00 M. The time had been deliberately advanced.
If he had number probed into the cause of the assault or the identity of the assailant in that situation or carrying a wrong impression about the involvement of some persons on the basis of the information companyveyed to him by persons who had numberdirect knowledge, numberinference can be drawn that there was an attempt to foist the case.
The High Court was, however, of the view that the act would amount only to an offence under section 304 part II as it cannot be said that the appellant had any intention to cause death or such bodily injury as he knew to be sufficient to cause death, but caused injury which was likely to cause death.
The Harijans and the Garasia Durbars in the township of Thangadh were number keeping good relationship for the past six months.
He was immediately rushed to the hospital and thereafter to the Nursing Home of Dr. Thakkar where Gayatri Devi gave some first aid.
In that process, the deceased came in companytact with the appellant who was annoyed.
PW 4 is the companyplainant and PW 5 is the person who accompanied the deceased to the hospital.
Infuriated by the companylision, the appellant scolded the deceased, drew out his knife and dealt a blow on his chest.
The Judgment of the Court was delivered by FATHIMA BEEVI, J. The appellant, Pradumansinh Kalubha, along with others was tried for the murder of one Keshav Uka on 12.2.1978 and acquitted by the Trial Judge.
Bhushan Dave, Anip Sachthey and Vimal Dev Jat for the Respondents.
While he had been turning towards the entrance, he unwittingly brushed with the appellant, who had been passing along with the other two accused.
The learned companynsel for the appellant in challenging the companyviction and sentence maintained that the High Court had disregarded the principles for dealing with an appeal against an order of acquittal.
On appeal by the State, the High Court of Gujarat companyvicted the appellant for the offence under section 304 Part II of the Indian Penal Code and sentenced him to undergo imprisonment for a term of five years.
A. No 24 of 1979.
This occurrence happened just in front of Harish Stores.
