Case: Makan Jivan &amp; Others Vs. State of Gujarat

1. The appellants and one Dahya were tried before the Additional Sessions Judge, Surat in Sessions Case No. 13 of 1966, on his file. The second accused Ichhu and thed Dahya were tried for an offence under Section 302, read with Section 34, I.P.C. The first accused Makan Jivan and the 4th accused Jadav were tried for offences under Section 323, I.P.C. The Trial Court acquitted Dahya. It convicted accused No. 2, Ichhu under Section 302, I.P.C. and sentenced him to suffer imprisonment for life. Accused 1 and 4, viz. Makan Jivan and Jadav were found guilty of offences punishable under Section 323, I.P.C. For those offences each one of them was sentenced to undergo rigorous imprisonment for one month and also to pay fine of Rs., in default to undergo further imprisonment for 15 days. The convicted accused went up in appeal to the High Court of Gujarat but their appeal was dismissed. Thereafter this appeal was brought by special leave2. The accused Ichhu, Dahya and Jadav are the sons of accused Makan Jivan. The accused own a field in Survey No. 9 in the village of Ckha. The adjoining field in Survey No. 6 was owned by P.W. 2 Lallubhai. The deceased Thakore and P.W. 3 Kantilal are the sons of P.W. 2 Lallubhai. P.W. 4 Divali is the wife of deceased Thakore. In between the field of P.W. 2 and that of the accused there is a stream3. According to the prosecution case the deceased Thakore and P.Ws. 2 to 4 worked in their fields on the day of the occurrence, viz. November 28, 1965. At about 4 p.m. on that day they began to water their brinjal plants by taking water from the stream that separates their field and the field of the accused. The accused were in their field at that time. The further case of the prosecution is that when Thakore and others were watering their field, all the accused came to the field of P.W. 2, in a body; at that time Accused 2 and 3 were armed with Bhallas and Accused 1 and 4 were armed with sticks; after coming there the accused with P.W. 2s party for taking water; then deceased Thakore told them that if they wanted they could also take water from the stream but there was no point in their abusing them and threatening them; but seeing the menacing attitude of the accused the deceased Thakore ran away from the place, then the accused pursued him, overlook him; Accused 2 Ichhu alias Chiman Makan gave a Dharia blow on his head; thereafter Accused 3 also gave him a blow; at the same time Accused 1 and 4 beat Kantilal and Divali; as a result of this assault Thakore sustained injuries. Thakore was immediately shifted to the hospital at Rander and admitted therein at about 6/15 p.m. The same day at about 8.10 p.m. Lallubhai as well as Kantilal were also admitted into the hospital for treatment. The first information report was laid before the police at about 7.15 p.m. on the same day. As the condition of Thakore was very critical, under medical advice he was shifted to the Civil Hospital, Surat. He passed away on the night between the 29th and 30th.

Reasoning: They were simple injuries. P.W. 4 was not produced before the doctor for examination. Her evidence is to the effect that as her husbands condition was critical, she chose to be by his side and therefore she did not appear before the doctor for examination. There is no reason toe her evidence on this point7. The prosecution case is fully supported by the testimony of P.Ws. 2, 3 and 4. Their presence at the scene at the time of the occurrence is probabilised by the injuries sustained by them. As mentioned earlier, the first information report in this case was laid within about an hour after the occurrence. Therein all the details of the occurrence had been given. Further the injured persons were produced for medical examination very soon after the occurrenceTheir examination was unnecessary for unfolding the prosecution case18. In this context it may be remembered that the plea of the accused persons in this case was that they were not present at the scene at the time of the occurrence. In view of that plea any further question to them would have been purposeless.