Mafabhai Motibhai Sagar vs State of Gujarat and Another

K.J. Thaker, J.—The appellants-ori. Accused have preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 18.2.2008 passed by the learned Addl. Sessions Judge, Dhangadhra in Sessions Case No. 22/2006 whereby, the learned trial Judge has convicted the present appellants- ori. Accused under sec. 302, 352, 147, 148 and 149 of IPC and sentenced them as under:

Appellant No. 1 - ori. Accused No. 1 is convicted under sec. 147 of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs. 1000/-, in default, to undergo further R/I for one month. He is further convicted u/s 148 of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs. 1000/-, in default, to undergo further R/I for one month. He is also convicted under sec. 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default, to undergo R/I for six months.

Appellant No. 2, 3, 4 & 5 - ori. Accused No. 2, 3, 4 & 5 are convicted under sec. 147 of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs. 1000/- each, in default, to undergo further R/I for one month. They are further convicted u/s 148 of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs. 1000/- each, in default, to undergo further R/I for one month. They are convicted u/s 352 of IPC and sentenced to undergo R/I for three months. They are also convicted under sec. 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/- each, in default, to undergo R/I for six months, which is impugned in this appeal.

According to the prosecution case, the complainant of the present case had filed complaint before about seven years of the incident against the accused Gagajibhai Ramabhai, his brother Mansangbhai and his son Devabhai under sec. 307 IPC, wherein, they have been acquitted. Therefore, just to take revenge, on 22.4.2006, at about 22.45 hours, the accused have assaulted the deceased Mansangbhai Vanabhai with deadly weapons like dhariya, gupti and stick and committed the murder of deceased Mansangbhai Vanabhai Therefore, the complaint was filed.

1.2 The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the accused. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 22/2006.

1.3 Thereafter, the Sessions Court framed the charge below Exh. 10 against the appellants for commission of the offence u/s 302, 352, 147, 148, 149 and 34 of. The appellants-accused has pleaded not guilty and claimed to be tried.

1.4 To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocates for the appellant:

PW-1 Manubhai Sodabhai Thakor Ex. 19

PW-2 Ishwarbhai Kamani Ex.21

PW-3 Narayanbhai Bhalabhai Ex. 32

PW-4 Husenbhai Jivabhai Ex. 37

PW-5 Gagajibhai Vanabhai Ex. 44

PW-6 Devabhai Gagajibhai Ex. 47

PW-7 Dr. Bhagvanbhai Kanjibhai Karkthala Ex. 48

PW-8 Dr. Ajaykumar Ramjising Ex. 54

PW-9 Ramilaben W/o. of Mansangbhai Ex. 59

PW-10 Dr. Himanshu Devdas Khara Ex. 60

PW-11 Mangalbhai Hirabhai, PSO Ex. 61

PW-12 Ranjitsinh Chandubha Ex. 65

PW-13 Shaktisinh Natvarsinh Zala Ex. 66

PW-14 Ajitsinh Jagatsinh Ex. 78

PW-15 Dharmendrasinh Pravinsinh Vaghela Ex.79

1.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused.

Arrest & muddamal panchnama Ex. 20

Inquest panchnama Ex. 31

Panchnama of scene of offence Ex. 33

Panchnama of clothes of deceased Ex. 34

Discovery panchnama Ex. 38

Police yadi Ex. 49

Yadi for PM Ex.50

Yadi Ex. 51

PM Report Ex. 52

Police yadi Ex. 55

Report Ex. 56

OPD case papers Ex. 57

Copy of FIR Ex. 62

Copy of Dasada Police station dt. 23.4.06 Ex. 63

Telephone vardhy Ex. 64

Complaint Ex. 67

Police report Ex. 68

Letter of Circle Officer Ex. 69

Panchnama of scene of offence Ex. 70

Letter to FSL Junagadh Ex.71

Receipt of muddamal Ex. 72

Copy of CR No. 1-46/98 of Dasada Police Station Ex. 73

FSL Report Ex. 74

Letter of FSL Ex. 75

Yadi for map of scene of offence Ex. 76

Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of Cr.P.C. was recorded in which the appellants-accused have denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 18.2.2008 held the present appellants- original accused guilty of the charge levelled against them under sec. 147, 148, 352 and 302 of IPC, convicted and sentenced the appellants-accused, as stated above.

We have heard at length learned advocate Mr. Yash N. Nanavaty for the appellants and Mr. K.P. Raval learned APP for the respondent-State.

The learned advocate for the present appellants has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and be acquitted.

It has been contended by the learned advocate for the appellants firstly that no stick or the stick with accused No. 5 was never found. The injuries which were caused were by dhariya and/or axe and never by farasi or stick. It has been submitted that even if it is believed that the offence was committed by the accused, it was by accused No. 4 alone and other accused have been roped in the case due to old rivalry. The reason for this submission is that the vardhy which was given at first in point of time did not give any body''s name and subsequently, by graphic picture, the names of all the accused are given. The station diary has changed in timing to that of the FIR. The FIR, rather the complaint was lodged after about five hours of the incident having occurred. It is submitted that PW-5 Gagajibhai Vanabhai Ex.44, has lost his brother and according to the defence, he could not have been present at the place of offence as the accused known to him and he could have given graphic picture naming all of them. Further, though it was a night, only in the deposition before the court, he has stated that he had a torch in his hands whereby he saw the accused but in the police statement or complaint, this aspect is not stated anywhere. The police vardhy shows that the police authority had taken down the vardhy in verbatim but no names were given in the said vardhy. Reliance was placed on the evidence of complainant Gagajibhai Vanabhai Ex. 44 and has submitted that cumulative effect of this evidence would go to show that though the motive is attributed which is a double edged sword as the otherside, i.e. complainant side also was facing the trial but were acquitted in an earlier case and their acquittal appeal is pending before this Court, and therefore, all the five accused seems to have been falsely implicated in this case. It is submitted that the field where the PW-5 and 6 are told to be stayed, does not belong to them. There is no evidence to show that they were going regularly to the field, and therefore, their presence is very doubtful. It is further submitted by the learned advocate for the accused that PW-6 has categorically accepted in his cross-examination at page 259 of the paper-book that he had not stated before the police that he had seen the incident. Even PW-5 has stated that he and PW-6 after hearing shouts of save - save, went to the place of the incident. It is further submitted that the presence of PW-5 is very doubtful at the place of incident and the accused are wrongly roped in the case, and therefore, the appeal deserves to be allowed.

On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed.

Learned APP Mr. Raval has contended that the presence of all the five accused is proved by the ocular version. The medical evidence shows that there were 11 injuries, and therefore, all the accused had a common intention, and therefore, the conviction is rightly recorded and no interference requires to be given on the minor contradictions or the omissions in the evidence. He has heavily relied on the latest decision of the Apex Court in the case of Subal Ghorai and Others Vs. State of West Bengal,

The presence of all the five accused is proved under sec. 149 IPC. Though stick is not recovered but the presence is proved. PW-5 complainant Gagajibhai Vanabhai Ex. 44, who is the brother of deceased Mansingbhai. In his evidence, he has mentioned that on the day of incident, he was at his field along with his son. On that day, between 10.00 p.m. to 10.30 p.m. In the night, his deceased brother Mansingbhai came to the field and after feeding the grass to his cattle, he left the field for going to home. After some time, he shouted ''save, save'' and on hearing the shouts, the witness and his son went there. The witness further mentioned that they saw in the light of torch that all the accused were inflicting blows on the head of his deceased brother Mansingbhai with dhariya, farasi, axe and stick. The witness identified the muddamal weapons as well as accused in the Court. The evidence of PW-5 is supported by the evidence of PW-6 Devabhai Gagajibhai Ex. 47. PW-6 had conveyed the police that he had not seen the scene happening but he has categorically narrated the presence of'' all the five accused with their weapons. The fact that the stick is not found will weigh heavily to acquit the accused No. 5 as it was a consorted efforts on the part of all the accused and the presence u/s 149 IPC is proved and we are in complete agreement with the submissions made by the learned APP in the latest decision of the Apex Court on that aspect and that the motive and the homicidal death is proved beyond reasonable doubt. However, Section 149 IPC reads as under:

Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

However, it cannot be said that there was no common object, and therefore, the case even would fall under sec. 147, 148 and 149. However, going through the facts on a pertinent question being asked whether there was any provocation from the otherside, the answer was no, and therefore, even case under sec. 352 of IPC is made out. Therefore, conviction requires to be confirmed. The post mortem report shows the injuries, and therefore, even on our own finding, we do not think that this is a case where we are persuaded to take a different view then that taken by the learned trial Judge. The appeal is devoid of any merits and requires to be dismissed.

This appeal is dismissed. The impugned judgment and order of conviction and sentence dated 18.2.2008 passed by the learned Addl. Sessions Judge, Dhangadhra in Sessions Case No. 22/2006 is confirmed. The appellants No. 3 & 5 - original accused No. 3 and 5 are on bail, and they are directed to surrender before the Jail Authority within a period of 12 weeks from today, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellants No. 3 & 5 -ori. Accused No. 3 & 5. Their bail and bail bonds stand cancelled. However, it is clarified that life would not mean till the last breath and their case may be considered for premature release by the State Government after 14 years and they shall be given remission.

R & P to be sent back to the trial Court, forthwith.