Judgment

RAY, J.:- This is an appeal by special leave from the judgment dated 5 April, 1968 of the High Court of Gujarat setting aside the order of acquittal passed by the Sessions Judge, Ahmedabad on 21 September, 1965 on a charge for an offence under Section 302 read with Section 34 of the Indian Penal Code and convicting the appellants and sentencing each of them to imprisonment for life.

2. The three appellants Bhika Valu, Dhuna Magha and Valu Vela were the accused in this case. They belonged to the Barwad community of Gundi village of Dholka Taluka, Ahmedabad Rural District. In this village there were two factions one of the Koli Patels and the other of Bharvads. Five or six years prior to the date of occurrence, namely 20 February, 1965, 5 or 6 Bharvads of Gundi village were murdered. Amongst those murdered were Vajakaran Vaha, Ranchhod Valu, Ganda Kama, Deva Kama and Vela Kama. The appellant Bhika Valu is the nephew of Vajakaran Vaha and is brother of Ranchhod Valu both of whom were among the murdered Bharwads. The appellant Dhuna Magha is an agnate of the three murdered Bharvads Ganda Kama, Deva Kama and Vela Kama. The appellant Valu Vela is the son of murdered Bharvad Vela Kama. In respect of the said offences of murders of those Bharvads, a charge-sheet was brought against 23 Koli Patels of the village and out of them, four persons were convicted and sentenced to various terms of imprisonment. Palji Teja, the deceased in the present appeal and Pitambar Bhura and Rupsing Raja two prosecution, witnesses in this case were among the 23 Koli Patels implicated in those offences of murders. Since the murder of Bharvads relations between Koli Patels and Bharvads were not friendly. The present offence was alleged to have been committed in consequence of the strained relations between the Koli Patels and the Bharvads.

3. The prosecution case was this. On 20 February, 1965 Falji Teja and his son Khengar went to the Bhurkhi Railway Station which was about two furlongs from the place of the occurrence. Falji and Khengar went to meet the train, which would arrive at about 3 p. m. to engage agricultural labourers if they could be obtained. Falji and Khengar met the train but could not find any agricultural labourer. Then they started on the return journey to Gundi Village. When they passed over a culvert near the Panchayat Office at Gundi accused No. l ran up from behind and gave a blow with an axe to Falji on the left leg from behind. Falji fell down. Accused Nos. 2 and 3 ran up to the spot. Accused No. 2 was armed with spear and accused No. 3 with a Dharia. All the three accused started giving blows to Falji. As a result of the injuries Falji died on the spot. Three accused ran away. Falji Teja had a double barreled gun with him and that gun fell from his hand when he was assaulted. Accused No. l carried away the gun which Falji Teja lad carried with him.

4. Khengar who was a young boy of about 14 got frightened and ran away. He informed his mother Bai Samu about the assault on his father and told her who the assailants were. At the time of the assault Pitambar Bhura a Koli Patel was proceeding from his house in Gundi to Bhurkhi Railway Station end he saw the entire incident from a place. Another prosecution witness Rupsing Raja also a Koli Patel was behind Pitambar Bhura and was on his way to the field. He also saw the incident of assault on Falji. After the assault Rupsing Raja went back to the village and informed Mera Mathur whose wife Bai Raju was working as an agricultural labourer with Falji. Thereafter Bai Samu went to the place of incident. Rupsing Raja and Mera Mathur also went to the spot by that time. At the place where the dead body Of Falji Teja was lying, Pitambar Bhura and Rupsing Raja confirmed the information which Bai Samu had received from Khengar as to the three accused being the assailants of Falji.

5. One Kavabhai Mansing happened to go to a well near the scene of offence. Kavabhai Mansing saw Bai Samu and foun