SHAKRABHAI VALABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants who were original accused Nos.1,2, and 3 in Sessions Case No. 255 of 1996, have, by preferring this Criminal Appeal under Sec. 374 (2) of the Criminal Procedure Code, 1973 ( for short "Cr.P.C."), challenged the correctness, legality and validity of Judgment Ex.63 dated 27th February, 1998 rendered by the learned Additional Sessions Judge, Panch Mahals at Godhra (who will be referred to hereafter as "the learned Judge of the trial Court") in Sessions Case No. 255 of 1996 by which all the appellants were convicted under Sec. 235(2) of Cr.P.C. for the offences punishable under Sec. 302 read with Sec.34 of the Indian Penal Code (for short "I.P.C."), Sec. 325 read with Sec.34 I.P.C. and Sec. 323 read with Sec.34 I.P.C. and each of them is sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo further Rigorous Imprisonment for six months for offences punishable under Sec. 302 read with Sec.34 I.P.C and to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.2,000/- and in default, to undergo further Rigorous Imprisonment for three months for offences punishable under Sec. 325 read with sec.34 I.P.C. and also to further undergo Rigorous Imprisonment for two months and to pay a fine of Rs.500/- and in default, to undergo further Rigorous Imprisonment for 15 days for offences punishable under Sec. 323 read with Sec.34 I.P.C. The learned Judge of the trial Judge also directed to undergo aforesaid sentences by each of the accused, concurrently. The learned Judge of the trial Court has, by rendering said judgment, acquitted all the accused under Sec. 235(1) of Cr.P.C. for offence punishable under Sec. 504 of I.P.C.

(2.) From the evidence led by the prosecution and the case unfolded by the witnesses, the case of the prosecution can be summarized in nutshell as follows:- 2.1 P.W.6 Gulabsing Bhavanbhai Patel is the complainant in the case. As per his complaint Ex.31, he is resident of village Sanklianta (Tal. Godhra). He is doing agricultural work. He has three married sons. Eldest son is P.W.10 Zaversing who has married with Lalitaben. Second son was Kamalsing who sustained injuries in the incident occurred at 4-00 p.m. on 21st June, 1996 and died on the next day on 22nd June, 1996. P.W.7 Rukhaben is the wife of said Kamalsing. Youngest third son is Natwarsing whose wife Savita had shown the place of incident to the Police. All sons and their father were residing jointly. They were doing agricultural work. 2.2 On or about 21st June, 1996, Kamalsing (deceased) and his wife P.W.7 Rukhaben had gone to purchase seeds of paddy to the shop of one Somabhai Ramabhai. Kamalsing was also entrusted with another work with regard to the tractor. As per the case of the prosecution, P.W.7 Rukhaben came with the seeds of paddy and Kamalsing engaged himself for talk with regard to hiring of the tractor. As per the case of the prosecution, the incident took place at 4-00 p.m. on 21st June, 1996. At that time, the complainant Gulabsing in company of his son P.W.10 Zaversing was doing agricultural work with the help of plough in his field. At that time, when Rukhaben was on the way for her return to the house of the complainant, her husband was following her keeping distance of about 25' to 30'. Suddenly Rukhaben heard shouts of her husband for his rescue, and therefore, immediately she saw at her back. At that time, she saw that three persons (appellant Nos. 1,2 and 3) were inflicting blows of sticks on the person of Kamalsing. Therefore, P.W.7 Rukhaben raised shouts for help to her father-in-law. Rukhaben suddenly took a turn and proceeded towards her husband Kamalsing. Mean while, complainant Gulabsing and P.W.10 Zaversing came running near Kamalsing. It is the case of the prosecution that these two witnesses i.e. complainant Gulabsing and P.W.10 Zaversing both have seen three persons inflicting blows with sticks on the person of Kamalsing. It is the case of the prosecution that the appellants were asking Kamalsing as to whether he wanted to have the land and on saying so they were beating Kamalsing. 2.3 It is the case of the prosecution that at that time, P.W.9 Saburbhai Bapubhai and his wife P.W. 11 Dhoriben both came near the place of incident. P.W.9 Saburbhai was telling the appellants that as the land was of his ownership, why they were beating Kamalsing. Thereupon, three appellants chased P.W.9 Sabur Bapu and his wife P.W.11 Dhoriben. From the evidence, it reveals that the appellants ran behind these two persons upto the field of Sabur Bapu, and they inflicted stick blows on the persons of Sabur Bapu and Bai Dholi and both sustained serious injuries. 2.4 As per the evidence of complainant Gulabsing, both legs of Kamalsing were broken and there was serious injury on his head from which there was a bleeding. Complainant Gulabsing managed to call for a cot and Kamalsing was shifted by taking him on cot to the residence of the complainant. From the evidence, it also appears that thereafter P.W.10 Zaversing -brother of Kamalsing went nearby village Chanchelav to call for a Rickshaw, but he could not manage to bring the Rickshaw, as no Rickshawala was ready to come to their village. Therefore, the complainant, Bai Rukha and Zaversing, by taking injured Kamalsing in cot, brought Kamalsing to the Godhra Town Police Station at Godhra. Police advised them first to take injured Kamalsing to the Civil Hospital, Godhra. From the record, it appears that the complainant brought Kamalsing to the General Hospital, Godhra at 6-50 p.m. P.W.5 Dr.Binaben Kantilal Parikh was on duty as Medical Officer in Civil Hospital, Godhra. Gulabsing gave history to Dr. Binaben Parikh who in turn recorded the history in case papers. As per the case of the prosecution, the complainant gave history about assault with stick at 4-00 p.m. on 21st June, 1996 by Shakrabhai Valabhai (appellant No.1) and Mahasukhbhai Shakrabhai (appellant No.2). P.W.5 Dr. Binaben gave medical treatment to the injured Kamalsing. She noticed as many as five injuries on the person of Kamalsing. Kamalsing was admitted in the hospital and as per medical case papers, during the course of treatment, he died at 8-30 a.m. on 22nd June, 1996 in the hospital. 2.5 As per the evidence of complainant Gulabsing, at about 12-00 midnight, police came in the hospital and asked him to lodge a complaint. Thereupon, the complainant went to the Godhra Taluka Police Station and lodged his complaint against three appellants by giving specific names of the appellants as the accused. That complaint came to be registered at 00-15 hrs. on 22nd June, 1996 as CR.No. I 199/96. P.S.O. of Godhra Taluka Police Station entrusted the police investigation of the said crime bearing CR.No. I 199/96 to P.W.14 PSI Atmaram Somabhai Solanki. PSI Mr. Solanki went to the place of incident and drew a panchnama of scene of offence in presence of two panchas. The place of offence was shown by Savita wife of Natwarsing. Thereafter PSI Mr. Solanki recorded the statements of Sabur Bapu and Dhoriben. As injured Kamalsing expired in the hospital, P.W.15 PSI Parvatsing Virsing Baraia made a report to the Learned Chief Judicial Magistrate, Godhra with a request to add offence under Sec.302 of I.P.C. in First Information Report, copy of which was sent to said learned Chief Judicial Magistrate. Thereafter, PSI Mr.Baraia took over further investigation from PSI Mr. Solanki. PSI Mr. Baria held inquest of Kamalsing and drew inquest panchnama. Thereafter, PSI Mr. Baria went to village Sanklianta and recorded the statements of witnesses conversant with the facts of the case. On 22/6/1996, PSI Mr. Baria sent dead body of Kamalsing along with police Yadi to the Medical Officer of Civil Hospital, Godhra. P.W.1 Dr. Narayan Bhurabhai Patel held autopsy on dead body of Kamalsing. On 23rd June, 1996 police arrested the appellants. It is the case of the prosecution that the appellants had shown their willingness to trace out the muddamal sticks which they had concealed, and therefore, at the instance of appellants, muddamal sticks were discovered under Sec.27 of the Indian Evidence Act for which a panchnama was drawn. Thereafter, PSI Mr. Baria sent incriminating articles, control earth, blood stained earth and the clothes which were worn by deceased Kamalsing at the time of incident under forwarding letter to the Forensic Science Laboratory, Surat (for short "FSL") for examination and analysis. On receipt of reports from the FSL and after obtaining P.M.Notes etc. PSI Mr. Baria filed chargesheet against the appellants in the Court of the learned Chief Judicial Magistrate, Godhra on 20th September, 1996. That chargesheet came to be registered as Criminal Case No. 1743 of 1996. The learned Chief Judicial Magistrate transferred said Criminal Case No. 1743 of 1996 to the learned 8th Joint Civil Judge & J.M.F.C., Godhra. As one of the offences viz. offence punishable under Sec.302 of I.P.C. is exclusively triable by the Court of Sessions, the said learned J.M.F.C. Godhra to whom Criminal Case No. 1743 of 1996 was assigned, passed a committal order under Sec.209, Cr.P.C. on 4th October, 1996 and committed the case to the Court of Sessions, Panch Mahals at Godhra. 2.6 Consequent upon the said committal order, the learned Sessions Judge, Panch Mahals, Godhra received case papers on 28th October, 1996 and said case came to be registered as Sessions Case No. 255 of 1996. Thereafter, said Sessions Case No.255 of 1996 was assigned to the learned Judge of the trial Court.

(3.) On the basis of material on record, the learned Judge of the trial Court framed Charge Ex.2 against the appellants on 15th September, 1997. The charge was read over and explained to the appellants. On recording pleas of the accused, the accused pleaded not guilty to the charge and claimed to be tried.