CR.A/917/2000 1/57 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 917 of 2000 With CRIMINAL APPEAL No. 1007 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = DAHYABHAI REVABHAI CHAMAR & OTHERS Versus STATE OF GUJARAT ========================================= = Appearance : MR YV BRAHMBHATT for Appellants MS ARCHNA RAVAL APP for Respondent ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE SHARAD D.DAVE CR.A/917/2000 2/57 JUDGMENT Date : 17/12/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) [1] Both the instant appeals have arisen from the same judgment and order delivered by learned Additional Sessions Judge, Sabarkantha at Himmatnagar, on 29.07.2000, in Sessions Case No.41/1998. [2] In all eight accused were charge-sheeted for the offences punishable under Sections 120-B, 147, 148, 149, 504, 506(2), 341 and 302 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. However, when the charge was framed, out of eight accused, accused No.5 – Kacharabhai Revabhai Chamar died and remaining seven accused faced the trial. [3] Vide judgment and order impugned, learned trial Judge was pleased to convict the accused No.1 – Dahyabhai Revabhai Chamar, accused No.2 – Amrutbhai Revabhai Chamar and accused No.3 – Natvarbhai Revabhai Chamar for the offence punishable under Section 302 of the Indian Penal Code and each of these accused came to be convicted and sentenced by the trial Judge for imprisonment of life and to pay fine of Rs.2,000/-, in default, to CR.A/917/2000 3/57 JUDGMENT undergo simple imprisonment of three months. Against this judgment and order, all the three accused preferred Criminal Appeal No.917/2000 under Section 374 of the Criminal Procedure Code against their conviction and sentence. [4] While accused No.4 – Alakhabhai Khatubhai Chamar, accused No.5 – Motibhai Revabhai Chamar, accused No.6 – Kaliben w/o. of Valabhai Revabhai Chamar and accused No.7 – Savitaben w/o. of Dahyabhai Revabhai Chamar were acquitted by the trial Court for whole the charges levelled against them through benefit of doubt and hence, the State preferred Criminal Appeal No.1007/2000 against these four accused under Section 378 of the Criminal Procedure Code challenging their acquittal. [5] Prosecution case briefly stated, the incident in question occurred on 17.12.1997 at Village : Navalpur of Himmatnagar Taluka. The incident, according to the prosecution case, occurred at 21.15 hours. Complainant – Jugatsinh Jitusinh, aged about 28 years was staying at Village : Navalpur and was at the relevant time Deputy Surpanch of Navalpur Gram Panchayat. In population of Village : Navalpur, Harijans, Muslims, Darbars, Rabaris were staying. There were about 20 houses of Harijans. Before three months of the incident, there was a dispute between Harijans and Muslims about right of way in the field and about the boundaries. CR.A/917/2000 4/57 JUDGMENT When the incident occurred, that dispute was still going on. Complainant - Jugatsinh Jitusinh belonged to Darbar community and Darbar community had no disputes or any rivalry with any other community. On earlier day of the incident i.e on 15.12.1997, buffalo belonged to one Akbarbhai Khanushia had died. It appears that, on account of the disputes with Harijans, they did not remove the deadbody of the buffalo, but Harijans believed that the deadbody of buffalo belonged to Akbarbhai Khanushia was removed in the tractor with the assistance of the complainant Jugatsinh Jitusinh. On 16.12.1997, while complainant Jugatsinh Jitusinh was going towards his field from the village, was accosted by accused No.1 – Dahyabhai Revabhai Chamar and his wife accused No.7 – Savitaben, on the road and they told the complainant that why the complainant had assisted in removing the deadbody of the buffalo belonged to Akbarbhai Khanushia and staked the same in tractor. According to the complainant, at that time both of these accused caught hold of him by his neck and he was threatened by both these accused that a complaint against Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 would be filed against them, they would see the complainant and family members of the complainant. The complainant thought that this was very small matter and did not file any complaint. On the day of the incident, complainant - Jugatsinh Jitusinh was at his residence, at that time, at about 8.30 p.m., Aslambhai Majidbhai Khanushia and Ibrahimbhai Rashidbhai Khanushia, who were eye witnesses in the CR.A/917/2000 5/57 JUDGMENT case, came to the residence of the complainant to inquire about the incident of previous day with the accused. Thereafter, Aslambhai Majidbhai Khanushia and Ibrahimbhai Rashidbhai Khanushia started to go to their houses and complainant also accompanied them to go in the village. All the three persons were talking amongst themselves, while they were passing upon the way of Harijan Maholla at about 21.15 hours, a crowd of some persons came towards the road on which these three persons including the complainant were going. The crowd was uttering about killing someone. At very same time, cousin brother of the complainant Sardarsinh, who is deceased in this case, was coming from his field and was going towards his residence, which the complainant and other two persons noticed in the electric light. At that time, the persons of crowd came on the road and prevented Sardarsinh to proceed towards his house. Complainant noticed that in all eight accused whose names are given in the FIR were there. According to the complainant, accused – Dahyabhai Revabhai Chamar, Amrutbhai Revabhai Chamar and Natvarbhai Revabhai Chamar had axes with them, accused - Alakhabhai Khatubhai Chamar had a dhariya with him, accused – Kacharabhai Revabhai Chamar had a stick with him. It is necessary to note here that before framing of the charge, accused Kacharabhai Revabhai Chamar had died and, therefore, the charge was framed against seven accused, out of the eight accused. As per further prosecution story and, according to the complainant was that, accused Motibhai Revabhai Chamar had CR.A/917/2000 6/57 JUDGMENT a chain of iron, accused Savitaben and accused Kaliben both were with the other accused and all of the accused were shouting “kill kill” and they attacked upon the deceased Sardarsinh. It is the further story of the prosecution that when all the accused attacked upon the deceased Sardarsinh, he started shouting and, therefore, the complainant and other two persons accompanying him rushed towards deceased Sardarsinh, on the spot. All the three noticed in the electric light that accused No.1 – Dahyabhai, accused No.2 – Amrutbhai and accused No.3 – Natvarbhai inflicted one blow each of an axe on the head of Sardarsinh. Others were beating Sardarsinh with kicks and fists and, therefore, Sardarsinh had fallen down on the ground. Complainant and other two witnesses also noticed that at that juncture, accused No.7 – Savitaben Dahyabhi and accused No.6 – Kaliben Valabhai were sprinkling chilly powder on the face of the deceased. When complainant and other two persons accompanying him reached on the spot and when they shouted, all the accused ran away from the scene of offence. Deceased Sardarsinh was seriously injured on his head by axe blows and those injuries were bleeding. Therefore, deceased Sardarsinh was shifted to Himmatnagar Civil Hospital in Maruti Car belonged to Rashidbhai Daudbhai. A complainant had accompanied Sardarsinh upto Himmatnagar Hospital and from there, on advice being given to him by a female, he went to Himmatnagar Town Police Station to give his complaint. According to the prosecution case, at about 23.00 hours on 17.12.1997, CR.A/917/2000 7/57 JUDGMENT complainant gave his complaint to P.W.9 – Rameshbhai Bhalabhai, the then Police Inspector of Himmatnagar Town Police Station. The complaint was recorded and crime was registered under Section 307 etc. of the Indian Penal Code. It appears that Sardarsinh was unconscious, he reached at Civil Hospital and, therefore, though Investigating Officer Rameshbhai Bhalabhai gave a yadi to record dying declaration of the deceased but it could not be recorded. On the next day i.e. on 18.12.1997, the investigation was started by Rameshbhai Bhalabhai and a panchnama of scene of offence was drawn as well as he recorded the statements of the witnesses. It further appears from the prosecution case that the deceased Sardarsinh reached, according to the prosecution, at Civil Hospital, at 8.45 p.m and P.W.4 – Dr.Karunaben Patel, Medical Officer treated Sardarsinh. However, according to this Doctor, injuries were grievous and were required surgical intervention. The patient was then sent to Civil Hospital, at Ahmedabad. It appears from the prosecution case that deceased Sardarsinh, thereafter, live from some days and ultimately, expired on 01.01.1998 in Ahmedabad Civil Hospital. P.W.7 Natvarbhai Prabhudas Patel, Medical Officer of Ahmedabad Civil Hospital performed postmortem of deadbody on 01.01.1998 at about 7.45 hours. According to him, the cause of death was head injury. It appears that a crime, thereafter, was converted in 302 and was investigated by Investigating Officer P.W.9 – Rameshbhai Bhalabhai. Accused were arrested. Accused voluntarily discovered the weapons used in CR.A/917/2000 8/57 JUDGMENT the crime and, therefore, a panchnama to this effect was drawn. Muddamal including blood found from scene of offence, weapons and the cloths of the deceased were sent to Forensic Science Laboratory. After receiving the opinion of Forensic Science Laboratory, a charge-sheet came to be filed in the Court of learned Judicial Magistrate, First Class and in turn, it was committed to the Court of Sessions, District : Sabarkantha, at Himmatnagar and was made over to the trial Court. [6] On 04.01.1999 vide Ex.7, a charge of the above said offences was framed in all against the seven accused by the trial Court. Accused pleaded not guilty and hence, prosecution has examined as many as nine witnesses and produced on record voluminous documentary evidence, which are as under. PROSECUTION WITNESSES : P.W.1 Jugatsinh Jitusinh, Complainant Ex.18 P.W.2 Aslambhai Majidbhai Khanushia, Witness Ex.22 P.W.3 Ibrahimbhai Rashidbhai Khanisia Witness Ex.24 P.W.4 Dr.Karunaben Rameshbhai Patel, Medical Officer Ex.26 P.W.5 Ismailbhai GulambhaiDhaga, Panch Witness Ex.29 P.W.6 Mahammadbhai Hanifbhai Dhaga, Panch Witness Ex.31 P.W.7 Dr.Natvarbhai Prabhudas Patel, Medical Officer Ex.40 P.W.8 Savabhai Hirabhai Raval, Panch of Scene of Offence Ex.42 P.W.9 Rameshbhai Bhalabhai Patel, Investigating Officer Ex.45 CR.A/917/2000 9/57 JUDGMENT DOCUMENTARY EVIDENCE : 1 Complaint of Jugatsinh Jitusinh Ex.19 2 Inquest Panchnama Ex.33 3 Panchnama of scene of offence Ex.30 4 Panchnama of examination of body of accused Nos.1 to 7 5 Panchnama of examination of body accused Savitaben 6 Discovery panchnama under Section 27 of the weapons voluntarily used by the accused at the time of incident. Ex.32 7 Panchnama of Production of cloth of deceased Sardarsinh. Ex.36 8 Yadi of treatment to injured Sardarsinh Ex.28 9 Injury certificate of deceased Sardarsinh, Civil Hospital, at Himmatnagar. Ex.27 10 Postmortem Note of deceased Sardarsinh Ex.41 11 Copy of report of CJM to include Section 302 in complaint. Ex.42 12 Forwarding Note of muddamal Ex.46 13 Receipt of F.S.L. regarding receiving the muddamal Ex.48 14 Report of Forensic Science Laboratory Ex.49 15 Report of Serologist Ex.50 16 Copy of FIR Ex.51 [7] After evidence of prosecution was over, incriminating circumstances appearing against each of the accused in the evidence, was brought to the notice of each of the accused and statement was recorded under Section 313 of the Criminal Procedure Code. The case of each of the accused is of total denial in the further statements. CR.A/917/2000 10/57 JUDGMENT [8] Learned trial Judge, thereafter, heard the prosecution and defence and came to the above conclusion that accused No.1 – Dahyabhai Revabhai Chamar, accused No.2 – Amrutbhai Revabhai Chamar and accused No.3 – Natvarbhai Revabhai Chamar were guilty for the offence punishable under Section 302 of the Indian Penal Code and each of the accused No.1 to 3 was sentenced as aforesaid. While learned trial Judge concluded that accused No.4 Alakhabhai Khatubhai Chamar, accused No.5 – Motibhai Revabhai Chamar, accused No.6 – Kaliben w/o. of Valabhai Revabhai Chamar and accused No.7 – Savitaben w/o. of Dahyabhai Revabhai Chamar were found not guilty as the prosecution had failed to prove any of the charges levelled against them beyond reasonable doubt, therefore, they were acquitted. Hence, these appeals before this Court. [9] It would be necessary to note the evidence of the prosecution as recorded during the trial. [10] P.W.1 - Jugatsinh Jitusinh, complainant, has been examined at Ex.18. He deposed that he knew all the accused as they belonged to his village. Deceased Sardarsinh happened to be his cousin brother. In their village, community of Harijans, Muslims, Darbars, Ravals etc. were staying. Before three months of the incident in CR.A/917/2000 11/57 JUDGMENT question, the dispute about the way of field was going on between Harijans and Muslims of the village. On account of this dispute, there was enmity between Harijans and Muslims, but he or his family had no enmity with any one or any community of the village. On 15.12.1997, a buffalo belonged to Akbarbhai Khanushia had died and he narrated the incident occurred on 16.12.1997 that accused No.1 – Dahyabhai Revabhai Chamar and his wife accused No.7 – Savitaben Dahyabhai Chamar accosted him. The witness further deposed that on 17.12.1997, he was at his house, Aslambhai Khanushia and Ibrahimbhai Rashidbhai both came to his residence to inquire regarding the incident with accused which had occurred about the buffalo of Akbarbhai. They took tea at his residence. After that Aslambhai Khanushia and Ibrahimbhai Rashidbhai both started to go to their houses and he wanted to go the village and he also accompanied them. The witness further stated that they were walking on public road of Harijan Vas and passing through that public road, at that time near the gate of Harijan Vas, they heard shouting “kill kill”. When he noticed, he found that his cousin brother deceased Sardarsinh was coming towards the residence from his field. It was night at that time and in light of electric, the witness noticed a crowd coming from Harijan Vas consisting of all eight accused. Out of these eight accused, accused Dahyabhai Revabhai Chamar, Amrutbhai Revabhai Chamar and accused Natvarbhai Revabhai Chamar had axes with them, accused Alakhabhai Khatubhai Chamar had a dharia and deceased accused CR.A/917/2000 12/57 JUDGMENT Kacharabhai Revabhai had a stick with him, accused Motibhai Revabhai Chamar had a chain of cycle with him. The witness noticed that accused – Dahyabhai Revabhai Chamar, accused – Amrutbhai Revabhai Chamar and accused Natvarbhai Revabhai Chamar each inflicted one blow of axe on the head of deceased, others were beating with kicks and fists, ladies accused Savitaben and Kaliben were sprinkling chilly powder in the eyes of the deceased. When he went near his brother, he found that the blood was oozing from his head. At that time, Aslambhai Khanushia and Ibrahim Khanushia were with him. Aslambhai Khanushia and Ibrahim Khanushia went in the village and brought a Maruti Car belonged to Rashidbhai and in the said Maruti Car, Sardarsinh was shifted to hospital at Himmatnagar. According to this witness, in Civil Hospital one female advised him that his brother was serious and, therefore, he should give the complaint. Therefore, he went to Himmatnagar Town Police Station and offered his complaint which he identified and produced on record at Ex.19. For the motive of the incident, the witness stated that buffalo belonged to Akbarbhai had died and he had been to assist in removing the deadbody of buffalo in tractor. He stated that in fact, he had not assisted in removing the deadbody of buffalo. The witness stated that his brother was shifted in Ahmedabad Hospital where he died on account of injuries. He identified the cloths of his deceased cousin brother and axes of muddamal Article Nos.4, 5 and 6 and other weapons dharia, stick etc. He stated that the scene offence was CR.A/917/2000 13/57 JUDGMENT shown by him to the police and at the scene of offence, there was blood on the earth and the chilly powder was found. In cross-examination, he was asked about Mubarakbhai who belonged to brother of Aslambhai, Mubarakbhai was of Surpanch. He admitted that Mubarakbhai was nephew of Akbarbhai. He admitted that the dispute about the way of field was between Aslambhai, Ibrahimbhai, Akbarbhai and Mubarakbhai at one side and accused No.1 and his family at the other side. It was the claim of the accused that near the field of Muslims, there was a way and Aslambhai etc. denied the claim. He also admitted that for this reason, there were earlier litigations filed like police complaint between the parties. He admitted that on 27.08.1997, for cutting of the hedge of his field, Aslambhai Majidbhai Khanishia had file a complaint. He admitted that in that case, he was panch and the witness. He admitted that though in complaint, he was not shown as witness, but he was taken as additional witness. He admitted that in the present case in the complaint, he had stated his surname to be Solanki. He also admitted that in earlier case about cutting of the hedge, he had stated his surname to be “Khant”. He admitted that deceased was Sardarsinh Solanki and he was aged about 65 to 70 years at the time of the incident. He also admitted that deceased was Solanki by caste and that he was “Khant” by caste and for posing to be cousin brother of the deceased, he narrated his surname to be Solanki. He also admitted that accused Dahyabhai had filed a complaint against the Prevention of Atrocities Act CR.A/917/2000 14/57 JUDGMENT against Aslambhai and in the said complaint, the name of Akbarbhai was also appearing. In examination-in-cross, he produced a copy of the said complaint at Ex.20. He admitted that this Akbarbhai was practicing Advocate and had been President of Taluka Panchayat and police had not arrested said Akbarbhai in the said crime for which the present accused had agitated, not only representing before the Government authorities, but to go on hunger strike. He admitted that there was narrow lane road at the scene of offence and there was a hedge on one side on that road and that road was East and West direction and on Northern direction, this narrow land takes turn from the houses of Harijans. He was asked about residential houses situated around the scene of offence, he admitted that at about 25 feet from the scene of offence, there was a house of Kamubhai Dhaga. He admitted that northern limits of this house was abutting the place of offence. He also admitted that on northern of this narrow lane, the houses of Aslambhai, Mubarakbhai and Akbarbhai were situated. He admitted that Savitaben had also filed a complaint as a cross case and in the said case, he was an accused and which case was pending before the same Court. The incident occurred on 16.12.1997 about threatening him by the accused No.1 and his wife was noticed by others and Akbarbhai and Aslambhai also. He had conveyed this incident to other persons also, but he had not filed any complaint. He denied that no such incident had taken place. He admitted that behind the Maholla of Harijan, the Maholla of Kshatriya was CR.A/917/2000 15/57 JUDGMENT situated. From his house entering into narrow road, the place of offence was at a distance about 25 to 30 feet and on entering that narrow road, first he sighted Sardarji. He witnessed the incident from a distance of 25 feet. He stated that out of three muddamal articles, he could not say which axe was with which accused. But he stated that muddamal article No.6 axe was with accused Dahyabhai Revambhai, muddamal article No.5 was with Amrutbhai Revabhai. He stated that he could not say that which accused inflicted which blow on the head of the accused. The witness stated that according to him, all the three accused inflicted axe blow on back side of the head of the deceased. According to this witness, all the three blows were horizontal. He also admitted that his brother Sardarsinh was standing, when axe blows were inflicted upon him. About other accused, he stated that which accused, how much had beaten the deceased, he could not say. He had noticed 4-5 marks on the body of the deceased on abdomen part. When he reached near his brother, deceased was not in a position to speak. This crowd of the accused were heard by other residence of the village. He admitted that his brother was taken in car from the gate of the village. He denied the fact that he found deceased Sardarsinh at the gate of village and from there, he was taken to hospital. He admitted that his brother was admitted to Civil Hospital at 8.45 p.m. He denied the fact that Akbarbhai, Advocate accompanied him, while he gave the complaint and he in fact dictated the complainant. According to him, he gave the complaint at about 9.45 p.m and after giving the CR.A/917/2000 16/57 JUDGMENT complaint, he had been to Civil Hospital, Himmatnagar and returned his home at about 2.00 hours. The police had been to his resident at about 2.30 hours. On the next day, at 8.30 a.m, police had come at his resident and inquired from him. He admitted that from their Maholla, when they entered in the narrow lane road, there was a cabin of one Bachubhai and whose cabin ordinarily remained open till 10.00 p.m. He denied the fact that on the same day, same night at about 10.30 p.m, he and others had attacked the accused and caused injuries. In further cross-examination, an attempt is made by the defense that he had enmity with Natvarbhai and accused. He denied the suggestion that he had not noticed the incident. He admitted that removing the dead animal was not the work of Darbar and removing the dead bodies of the animals is ordinarily performed by Harijans. He had not talked, about the incident of 16.12.1997, to Aslambhai and Ibrahimbhai nor to anybody. He emphatically stated that when they reached near the scene of offence, there was electric light. After the incident, the whole village was gathered there. He denied that he was falsely deposing against the accused. [11] P.W.2 – Aslambhai Majidbhai Khanushia at Ex.22 deposed that the incident occurred on 17.12.1997 and before that day, the accused Dahyabhai had threatened complainant – Jugatsinh in respect of removal of deadbody of buffalo belonged to Akbarbhai. In this respect, he had been to the house of Jugatsinh and, thereafter, CR.A/917/2000 17/57 JUDGMENT he and P.W.3 – Ibrahimbhai who were returning from the house of the complainant and the complainant also accompanied them. According to witness, when all of three on foot, reached near the road passing near Harijan Maholla, they heard shouts “kill kill”. Those shouts were coming from the accused. At that juncture, deceased Sardarsinh was coming to his house from his field, the accused restrained him. This witness also stated that accused Nos.1 to 3 had axes with them, accused Alakhabhai had a dharia with him, deceased Kacharabhai had a stick with him, accused Motibhai had a chain of cycle with him. Accused Nos.1 to 3 inflicted one blow each on the head of Sardarsinh on account of which deceased Sardarsinh had fallen down. In this scuffle, accused were shouting that “kill kill”. Other accused i.e. accused Nos.4 and 7 were beating Sardarsinh with kicks and fist. Accused Savitaben and Kaliben were sprinkling chilly powder in the eyes of Sardarsinh. When all three went near Sardarsinh, they found that his injuries were profusely bleeding. Therefore, a Maruti car belonged to Rashid was summoned and Sardarsinh was shifted to Himmatnagar Civil Hospital. The complaint about this incident was given by Jugatsinh at Himmatnagar Town Police Station.