Judgment

DESAI, J.:- One Jaman Malde had his hair-cutting saloon in Village Kalyanpur in Jamnagar District. As usual he in company 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. Around 3.55 P.M. on that day 6 persons entered his shop. 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. Accused No. 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 Keshav Giga were armed with sticks. On entering the shop the four accused armed with sticks started inflicting blows on Jaman Malde, Popat Jaman and Arvind Jhina. At about that time one Ramshi Ram had come to the shop for his shave. He intervened and attempted to persuade the accused not to beat Jaman and others. Accused No. 3 fired his gun at Ramshi Ram and caused injuries to him. Karsan Malde, the brother of Jaman Malde who was in the neighbouring shop came running to that place and attempted to intervene when accused No. 3 Mer Dhana Sida fired his gun at him. Simultaneously, the other 4 accused inflicted stick blows on him. Karsan Malde fell down at the spot. Jaman Malde went to Kalyanpur Police Station and lodged an information of the offence. Ramshi Ram and Karsan Malde succumbed to their injuries within a short time after the occurrence. Officer-in-charge of the Police Station, Kalyanpur registered an offence and commenced investigation. On completion of investigation a challan was sent up against 5 accused to the learned Magistrate having jurisdiction in the area. Lakhamshi Natha was shown to be absconding. The learned Magistrate committed the accused to the Court of Session. The case came up for trial before the learned Sessions Judge, Jamnagar, who framed various charges against the accused but the principal charge was under S. 302 read with S. 149 of the Indian Penal Code or in the alternative charge under S. 302 read with S. 34 of the Indian Penal Code as also under Ss. 326 and 325 read with. S. 149 or in the alternative charge under S. 34 of the Indian Penal Code and Ss. 147 and 148 of the Indian Penal Code.

2. 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. The accused did not examine any witness in their defence.

3. The learned Sessions Judge held that the prosecution has failed to bring home the charge against any of the accused under S. 302 read with S. 149 or S.302 read with S. 34 for committing murder of Ramshi Ram. He also held that the prosecution has failed to prove the participation of accused No. 1 Mer Ram Sida in the occurrence. For injuries caused to deceased Karsan Malde the learned Sessions Judge convicted accused Nos. 2, 3, 4 and 5 under S. 324 read with S. 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.

4. Original accused Nos. 2, 3, 4 and 5 preferred Criminal Appeal No. 356 of 1974 against their conviction and sentence imposed upon them. The State of Gujarat preferred Criminal Appeal No. 424 of 1974 against all the 5 accused questioning the acquittal of accused No. 1 Mer Ram Sida as also the acquittal of all the 5 accused on the charge of committing murder of Ramshi Ram. A Division Bench of the High Court heard both the appeals together and disposed them of by a common judgment. The High Court concurred with the learned Sessions Judge about the failure of the prosecution to prove the participation of accused No. 1 Mer Ram Sida in th