MOHMEDRAFIQ HUSENMIYATHAKOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Grishbhai was a Secretary of the local unit (Bhale) of Vishwa Hindu Parishad and he was murdered by a group of people by attacking him with lethal weapons on the night of 27-3-1990. Police charge-sheeted 63 persons for the said murder and also for certain other allied offences before a designated Court at Kheda district (Gujarat State) set up under the Terrorists and Disruptive Activities (Prevention) Act, 1987 (for short the TADA Act). Learned Judge has convicted nine of them of the charge of murder with the aid of Section 149, IPC and sentenced them to udergo imprisonment for life. They are the appellants in this appeal which has been filed under Section 19 of the TADA Act (we may mention here itself that two other accused-Jusabmiya Rahimmiya (A51) and Mohsinmiya Rasulmiya (A62)- were convicted under Section 323, IPC and sentenced to suffer simple imprisonment for two months and they too have jointed as appellants in this appeal. But in view of the relatively minor offence found against them learned counsel for the appellants did not press the appeal as for those two persons, more so because both of them had already undergone the sentence). Appeal on their behalf would, therefore, stand dismissed. As the accused are so many in number and as the names of many of them have close resemblance with the names of some other accused, we propose, for convenience, to refer to them in this judgment by the rank given to each of them in the trial Court.

(2.) Facts of the prosecution case are summarised like this:There was communal unrest in the village Bhalej for sometime. People belonging to two communities were on warpath against each other and criminal cases were registered by the police against some persons belonging to both communities. Girishbhai, being the Secretary of Bhalej Unit of Vishwa Hindu Parishad became a focus for those who were opposed to the movement. On the day of occurrence, Girishbhai along with Jitubhai (PW5) and Nathubhai (PW6) alighted from a bus at Bhalej old Bus stop around 9.00 p. m. As they proceeded and reached near Rafiq Pan Center, they were surrounded by a larger number of people who were variously armed with spear, razor and lathis etc. One of them (Mahemudmiya Isamiya-A49) gave a clarion call to kill the deceased and so saying he aimed a blow at the deceased with a dharia. The blow was warded off by the deceased with his hands. Then a feeble attempt was made by Jitubhai (PW5) and Nathubhai (PW6) to save their comrade, but they were driven away by the assailants during the course of which they too were beaten with lathis. Thereafter, the assailants showered Grishbhai with blows using weapons in their hands. One Anil Kumar (PW4) who happened to see the beginning part of the encounter rushed to house of the village Sarpanch (PW 3) and informed him of the incident. PW3 then set out in search of the deceased but could not locate him even at the place of incident. He later came to know that Girishbhai was taken in a car to the hospital in a badly injured condition. Later, Girishbhai succumbed to his injuries.

(3.) First Information Report was registered on the strength of a complaint lodged by PW3. The Investigating Officer arrested the accused and recovered some weapons. On completion of investigation final report was laid against 63 persons for offences ranging from Section 302, IPC to Sections 3 and 4 (4) the TADA Act, However, learned Judge of the designated Court found that prosecution succeeded in proving that the nine appellants have committed the offence under Section 302 read with Section 149, IPC, but could not prove any other offence. Accordingly, the nine appellants were convicted and sentenced as aforesaid.