d)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 86 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and MISS JUSTICE R.M.DOSHIT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 1 & 2 - YES. 3 TO 5 - NO -------------------------------------------------------------- MANJI KARSAN Versus STATE OF GUJ -------------------------------------------------------------- Appearance: MR AD SHAH for Appellants MR PB BHATT APP for Respondent-State. -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MISS JUSTICE R.M.DOSHIT Date of decision: 20/04/98 ORAL JUDGEMENT (PER : CALLA J) This appeal by five appellants (who were accused Nos. 1 to 4 and 6 before the trial court) is directed against the judgment and order of conviction and sentence passed by the learned Sessions Judge, Kachchha at Bhuj on 14th December, 1989, in Sessions Case No. 27/88. There were 17 accused, all residents of village Ramparvekra, Taluka-Mandvi, District-Kachchha, for offences punishable under sections 148, 302, 302-149, 307-149, 326, 326-149, 324, 324-149, 504, 201 of IPC, and section 25 (c) of the Arms Act and section 135 of the Bombay Police Act. 2. Accused no.1 Manji Karsan Kerai, accused no.2 Ravji Harji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai have been convicted for the offence punishable under section 148 of the IPC. 3. For the offence of murder of deceased Nanji Ramji, accused no.1 Manji Karsan Kerai has been convicted for the offence punishable under section 302 of the IPC, accused no.2 Ravji Harji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai have been convicted for the offences punishable under sections 302 and 149 of the IPC. 4. For the offence of murder of deceased Manji Ramji, accused no.1 Manji Karsan Kerai is convicted for the offence punishable under section 302 of the IPC, and accused no.2 Ravji Harji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai have been convicted for the offences punishable under sections 302 and 149 of the IPC. 5. For the offence of voluntarily causing grievous hurt to Vaghji Hirji, accused no.4 Lalji Harji Kerai has been convicted for the offence punishable under section 324 of IPC and the accused no.1 Manji Karsan Kerai, accused no.2 Ravji Harji Kerai, accused no.3 Manji Harji Dungrani and accused no.6 Narayan Karsan Kerai have been convicted for the offence punishable under section 324 read with section 149 of the IPC. 6. For the offence of committing murderous assault on the witness Kanji Bhimji, accused no.2 Ravji Harji Kerai has been convicted for the offence punishable under section 307 of the IPC and accused no.1 Manji Karsan Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai have been convicted for the offence punishable under section 307 read with section 149 of the IPC. 7. For the offence of committing murderous assault on witness Kalyanji Mavji, the accused no.2 Ravji Harji Kerai has been convicted for the offence punishable under section 307 of the IPC and the accused no.1 Manji Karsan Kerai , accused no.3 Manji Harji Dungrani, accused no.4 Lalji Hirji Kerai and accused no.6 Narayan Karsan Kerai have been convicted for the offence punishable under section 307 read with section 149 of the IPC. 8. For the offence of committing assault and using criminal force on witness Lavji Bhimji, the accused nos. 1, 2, 3, 4 and 6 have been convicted for the offence punishable under sections 352 and 149 of the IPC. 9. For the offence of voluntarily causing grievous hurt by means of deadly weapon on witness Mavji Naran, the accused no.3 Manji Harji Dungarani has been convicted for the offence punishable under section 324 of the IPC. 10. For the offence of voluntarily causing grievous hurt by means of deadly weapon to witness Laxman Mavji, the accused no.1 Manji Karsan Kerai has been convicted for the offence punishable under section 326 of the IPC, and accused no.2 Ravji Hirji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai, and accused no.6 Narayan Karsan Kerai are convicted for the offence punishable under section 326 read with section 149 of the IPC. 11. At the same time, accused no. 5 Harji Kanji Kerai, accused no.7 Valji Harji Bhanderi, accused no.8 Hirji Shamji Vekaria, accused no. 9 Ruda Premji Rajani, accused no. 10 Nanji Hirji Kara, accused no. 11 Premji Kanji Rajani, accused no.12 Kuvarji Bhimji Chhabadia, accused no.13 Ratna Narayan Sujani, accused no.14 Vishram Khimji Chhabadia, accused no. 15 Harji Ramji Kerai, accused no. 16 Premji Mavji Chorasia, and accused no. 17 Valji Mavji Chhabadia have been acquitted of all the offences charged against them. 12. Accused nos. 5, 7 and 8 to 17 and accusednos.1, 2 3, 4 and 6 have also been acquitted for the offence punishable under section 50 of the IPC. 13. Accused no. 17 has been acquitted for the offence punishable under section 201 of the IPC. 14. Accused no.1 Manji Karsan Kerai and accused no.2 Ravji Hirji Kerai have been acquitted for the offence punishable under section 25 (c) of the Arms Act. 15. Accused nos. 1 to 17 i.e. all the accused have been acquitted for the offence punishable under section 27 read with section 135 of the Bombay Police Act. 16. Thus, accused nos. 5 and 7 to 17 i.e.12 out of 17 accused persons have been acquitted of all the offences, while the other accused persons i.e. accused nos.1 to 4 and 6 who are five appellants before us in this appeal have been convicted as above. 17. So far as the sentence is concerned, these five appellants i.e. accused nos. 1 to 4 and 6 have been sentenced as under : 18. Accused no.1 Manji Karsan Kerai, accused no.2 Ravji Hirji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai, and accused no.6 Narayan Karsan Kerai have been sentenced to undergo 6 months' RI and a fine of Rs. 200/-, and in default of which, to undergo further RI for 15 days for the offence punishable under section 148 of the IPC. 19. Accused no.1 Manji Karsan Kerai has been sentenced to undergo life imprisonment for the murder of Nanji Ramji for the offence punishable under section 302 of the IPC, and the accused no.2 Ravji Hirji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai as the members of unlawful assembly, have been sentenced to undergo life imprisonment for the offence punishable under section 302 read with section 149 of the IPC. 20. Accused no.1 Manji Karsan Kerai has been sentenced to undergo life imprisonment for the murder of Manji Ramji Vekaria for the offence punishable under section 302 of the IPC, whereas, accused no.2 Ravji Hirji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai as the members of unlawful assembly have been sentenced to undergo life imprisonment for the offence punishable under section 302 read with section 149 of the IPC. 21. For the offence of committing murderous assault on Kanji Bhimji, the accused no.2 Ravji Hirji Kerai has been sentenced to undergo RI of 5 years and a fine of Rs. 1000/-, and in default of which, he has to undergo further RI for one year, for the offence punishable under section 307 of the IPC; whereas, for committing offence of the said murderous assault, as members of unlawful assembly, the accused no.1 Manji Karsan Kerai, accused no. 3 Manji Harji Dungarani, accused no. 4 Lalji Harji Kerai and accused no. 6 Narayan Karsan Kerai have been sentenced to undergo RI for three years and a fine of Rs. 500/each, in default of which, each of them to undergo further RI for six months for the offence punishable under section 307 read with section 149 of the IPC. 22. For the offence of committing murderous assault on Kalyan Mavji, the accused no.2 Ravji Hirji Kerai has been sentenced to undergo RI of five years and a fine of Rs. 1000/- and in default of which he has to undergo further RI of one year for the offence punishable under section 307 of the IPC; whereas, for the said murderous assault and as members of unlawful assembly, the accused no.1 Manji Karsan Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai have been sentenced to undergo RI for three years and a fine of Rs. 500/- each, and in default of which, each of them has to undergo further RI of six months for the offence punishable under section 307 read with section 149 of the IPC. 23. For the offence of committing assault on Ravji Bhimji, the accused no.1 Manji Karsan Kerai, accused no.2 Ravji Hirji Kerai, accused no.3 Manji Harji Dungrani, accused no.4 Lalji Harji Kerai and accused no.6 Narayan Karsan Kerai have been sentenced to undergo RI of 15 days and a fine of Rs. 100/-, and in default of which, each one of them has to further undergo RI of five days for the offence punishable under section 149 of the IPC. 24. For the offence of voluntarily causing hurt to Mavji Naran, the accused no.3 Manji Harji Dungarani has been sentenced to undergo RI of one year and fine of Rs. 700/-, in default of which, he has to undergo further imprisonment of one month for the offence punishable under section 324 of the IPC. 25. For the offence of voluntarily causing hurt by means of deadly weapon to the deceased Vaghji Hirji, accused no. 4 Lalji Harji Kerai has been sentenced to undergo RI of one year and a fine of Rs. 700/-, in default of which, he has to undergo further RI of one month for the offence punishable under section 324 of the IPC; whereas for the offence of causing said hurt as members of the unlawful assembly, the accused no.1 Manji Karsan Kerai, accused no.2 Ravji Harji Kerai, accused no.3 Manji Harji Dungrani, accused no. 6 Narayan Karsan Kerai have been sentenced to undergo RI of six months, and a fine of Rs. 400/- each, in default of which, each one of them has to undergo further RI of 15 days for the offence punishable under section 324 read with section 149 of the IPC. 26. For the offence of causing grievous hurt by means of deadly weapon to Laxman Mavji, the accused no.1 Manji Karsan Kerai has been sentenced to undergo RI of three years and a fine of Rs. 800/-, in default of which, he has to undergo further RI of three months for the offence punishable under section 326 of the IPC; whereas for the offence of causing the said hurt as the members of the unlawful assembly, the accused no.2 Ravji Hirji Kerai, accused no.3 Manji Harji Dungrani, accused no. 4 Lalji Harji Kerai, and accused no.6 Narayan Karsan Kerai have been sentenced to undergo RI of two years and a fine of Rs. 400/-, in default of which, each one of them has to further undergo imprisonment of one month for the offence punishable under section 326 read with section 149 of the IPC. 27. It has been further ordered that out of the fine paid by the accused no.2, an amount of Rs. 500/- shall be paid to the injured witness Kanji Bhimji towards compensation, and out of the fine paid by the accused nos. 1, 3, 4, and 6, an amount of Rs. 250/- from each of them shall be paid to the injured witness Kanji Bhimji towards compensation. 28. Out of the amount of fine paid by the accused no.2, an amount of Rs. 500/- and out of the fine paid by the accused nos.1, 3, 4, and 6, an amount Rs. 250/- from each of them has to be paid to the injured witness Kalyan Mavji as compensation. 29. Out of the fine paid by the accused nos. 1, 2, 3, 4 and 6, an amount of Rs. 50/- from each of them has to be paid to the injured witness Ravji Bhimji as compensation. 30. Out of the amount of fine paid by the accused no.3, an amount of Rs. 350/- has to be paid to the injured witness Mavji Naran as compensation. 31. Out of the amount of the fine paid by the accused no.1, an amount of Rs. 400/- and out of the fine to be paid by the accused nos. 2, 3, 4 and 6, an amount of Rs. 300/- from each one of them has to be paid to the injured witness Laxman Mavji as compensation. 32. Against the aforesaid order of conviction and sentence passed on 14th December, 1989 by the learned Sessions Judge, Kachchha at Bhuj in Sessions Case No. 27/88, the present appeal is preferred before this court by five appellants i.e. accused nos. 1 to 4 and 6. 33. Besides this, two Criminal Appeals Nos. 237/90 and 238/90 were preferred by the State of Gujarat against the order of acquittal and for enhancement of the sentence in respect of the persons who have been convicted. However, the appeal against the acquittal was restricted by the State against the order of acquittal in respect of accused nos. 1, 5, 10 to 12 and 7 to 17. This court decided the present Criminal Appeal No.86/90 as also other two Criminal Appeals Nos.237/90 and 238/90 by a common judgment and order dated 31st March, 1997, whereby the order of conviction and sentence passed by the Sessions Court against the five appellants as impugned in the present appeal, was upheld and the appeal was dismissed. Other two Criminal Appeals Nos. 237/90 and 238/90 against acquittal and enhancement respectively were also dismissed. 34. The State of Gujarat did not prefer any Special Leave Petition against the dismissal of Criminal Appeals Nos. 237/90 and 238/90 and thus, the order of acquittal became final. However, the Special Leave Petition was preferred on behalf of the accused nos. 1 to 4 before the Supreme Court and this Criminal Appeal (by special leave to appeal (Criminal) No 2760/97) 62/98 was decided by the Supreme Court on 12th January, 1998. The Supreme Court passed the order as under : O R D E R "Special Leave granted. Heard learned counsel for the parties. It appears that the evidences have not been properly analysed and considered by the High Court in passing the judgment. Therefore, in the facts of the case, prejudice has been caused to the appellants. We, therefore, set aside the impugned order and remit the appeal back to the High Court for reconsideration. Since the appellants are in jail, it will be appreciated if the High Court disposes of the appeal as early as possible preferably within a period of four months from the date of communication of this order. It is made clear that the High Court will consider only the appeal preferred by the appellants because the State has not preferred any appeal against the dismissal of the appeal preferred by the State. The appeal is disposed of accordingly. " 35. This is how this appeal came up before us for hearing on 7th April, 1998, as remitted back by the Supreme Court's order dated 12th January, 1998. We are told by the learned counsel for the appellants Mr. A.D.Shah that the appellants nos. 1 to 4 are serving the sentence in the Central Jail at Sabarmati, Ahmedabad and the learned APP has pointed out that the appellant no.5 i.e. accused no.6 Narayan Karsan Kerai is absconding. He has pointed out that this appellant no.5 had been released on parole on 20th May, 1991, and he was to surrender back before the jail authorities on 23rd May, 1991, but did not surrender and and has remained absconding throughout. 36. The case arises out of an incident dated 21-2-1988 which took place between 6-30 to 7-30 AM on the said date at Vathan of village Ramparvekra. With regard to this incident, the complaint was filed by Mavjibhai Manjibhai on 21-2-1988 itself at about 10-00 AM. The FIR is at Ex. 146 at page 770 of the paper book. In this incident, three persons viz. Manji Ramji, Nanji Ramji and Vaghji Hirji have been done to death and 9 persons have been injured.The prosecution has come with the case that on the said date i.e.21-2-1988 at about 6-30 AM, the first incident took place in which the accused nos. 1, 2 3 and 13 are alleged to have inflicted blows with knife and Chhura on the person of Mavji Narayan and on alarm being raised, all the four accused persons ran away. Bhimji Ravji who was passing from that place had taken Mavji Narayan to his house and thereafter Bhimji and Damji took Mavji Narayan to the Hospital at Mandvi. Thereafter the second incident took place and the offences which are alleged to have been committed in this second incident at about 7-30 AM in the same village at Vathan near the house of Kalyan Narayan was the subject matter of the trial. 37. As per the complaint-FIR (Ex.146, P-770) and the record, the prosecution case is that in the village of Ramparvekra, the community of Leua Patel is headed by Khimji Narayan as its President. On behalf of the aforesaid community, certain land was purchased as a property of the community and after purchase of the Wadi of Anand Laxman of village Ramparvekra as a community property as aforesaid, and after executing the sale-deed, contributions were collected for the construction of the Samaj Wadi (Community Hall) on the aforesaid land. Some members of the community contributed and some did not. The persons who had not contributed i.e. group of the persons from the accused side had filed a suit in the court at Bhuj against some of the members of the complainant group who are accused in another Sessions Case No. 538/88.They obtained a stay order, but that stay order was vacated. Harji Kanji and Shamji Kuvarji had filed a suit in Mandvi court, but could not obtain any stay order. Thereafter an appeal was preferred before Bhuj Court, but the same was dismissed on 20th January, 1988. This appeal had arisen from Civil Suit No. 87/87 of Mandvi court. Against the said order dated 20th January, 1988, the matter was brought to the High Court and in the High Court also they lost. Thereafter the incident in question took place on 21-2-1988 with regard to the dispute over the Samaj Wadi. Infact, the first incident which has been narrated as the motive and immediate cause for the second incident which has given rise to the present case, took place at about 6-30 AM. While Mavji Naran was going to temple, the alleged injury was caused to him by knife blows by the accused nos. 1, 2, and 3. It is alleged that there is a Government building near the Panchayat office and this incident took place while Mavji Naran was on his way to the temple for prayers. Kanji Bhimji got information of this incident through Khimji Naran and therefore he went to the house of Mavji Narayan who happens to be his relative. Thereafter he went to Mavji Manji, informed him and then went to Vathan and came to know that Mavji Naran has been taken to Mandvi in Taxi of Maharaj in the company of Dhanji Naran, Bhimji Ravji and Khimji Narayan. Manji Kanji and Mulji Kalyanji followed them to Mandvi in Khimji Narayan's car. In the meantime, at about 7-00 to 7-15 AM, Mavji Manji, Narayan Ramji, Manji Ramji, Vaghji Hirji, Valji Ramji, Laxman Mavji, Kalyan Mavji, Kanji Bhimji, Ravji Khimji, Premji Kanji and others i.e. Khimji Narayan, Karsan Bhimji etc. about 15 to 16 persons collected at Vathan (a place where cattle of the village is used to assemble to be taken for grazing). These persons were talking about assault on Mavji Naran near the house of Harji Meghji. At that time, accused no.1 came in a jeep bearing No. GAB 8127 with other accused persons i.e. accused nos. 2 to 7. The accused persons stopped the jeep at a distance of about 25 paces where the persons named as above on the complainant side were there. Accused no.1 got down from the jeep with the gun and the other accused persons viz. accused nos. 2 to 7 also got down. As per the complaint, accused nos.3 and 4 were armed with Dharia, accused no.4 was armed with a small pistol and rest of the accused were armed with sticks. In the meanwhile, accused nos. 8 to 15 also came. Accused no.8 had a knife with him and rest of the persons who came with him were armed with sticks. While the accused persons were hurling vulgar abuses, the accused no.1 got down from the jeep and aimed the gun towards the members of the complainant party and attempted to fire it, but the gun did not work and he had not fired. Accused no.2 Ravji Hirji Kerai then took the gun from the accused no.1. This gun was a double barrel gun and the accused no.2 fired three rounds from the said gun towards Nanji Ramji Vekaria, Manji Ramji Vekaria and Kanji Bhimji Chhabadia etc. As per the prosecution case, Nanji Ramji Vekaria received injury as a result of this fire and he fell down there.Accused no.4 had fired about 6 to 7 rounds from his pistol and therefore there was a helter-skelter amongst the people who were standing there, out of whom Manji Ramji Vekaria,Vaghji Hirji, Kanji Bhimji and Kalyan Mavji had fallen down there itself as accused persons had given them Dharia blows indiscriminately and some had given stick blows also. The accused persons after opening gun and pistol fires on the complainant group and after assaulting them with Dharias and sticks, made their escape good in the jeep. The tempo of Devji Mavji was lying there and hence injured persons i.e. Nanji Ramji Vekaria, Manji Ramji Vekaria, Vaghji Hirji Kerai, Kanji Bhimji Chhabadia, Kalyan Mavji Vekharia, Laxman Mavji Vekaria, Valji Ramji Vekaria, Ravji Bhimji Kerai and Shivji Naran Vekaria etc. were taken to Mandvi Hospital in the said tempo. They were given treatment there in Mandvi Hospital and the complainant Mavji Narayan came to know that Nanji Ramji Vekaria, Manji Ramji Vekaria and Vaghji Hirji Kerai had succumbed to the injuries. 38. On the basis of the cross-complaint which was lodged by the accused no. 13 of this case, on the basis of which CR No. 15/88 was registered, investigation was made into that complaint also and chargesheet was submitted in Mandvi court. This case was also entrusted to the very same Sessions Court, and was registered as Sessions Case No. 53/88. Both the cases were tried together , but in Sessions Case No. 53/88, the accused persons were acquitted. 39. During the course of the trial, 25 witnesses have been examined.Accused nos. 5 and 7 to 17 have been acquitted and their acquittal has become final and the present appeal is on behalf of accused nos. 1 to 4 and 6 only. Therefore, we propose to consider the evidence with regard to the five appellants (accused Nos. 1 to 4 and 6 ) only. The evidence which has been recorded in this case may be classified to head the group of the witnesses relating to the first incident which took place on 21-2-1988 at 6-30 AM with regard to Mavji Naran, eye-witnesses with regard to