CHHITA MATHUR MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The appellants-original accused Nos. 1 to 13 have brought in challenge in this appeal, the impugned judgment and order dated 31.3.1986 passed by the learned Addl. Sessions Judge, Bharuch in Sessions Case No. 71/85 in so far as convicting the appellants-accused Nos. 1 to 13 for the offences punishable under Section 302 R/w Sec. 149 of the I.P.Code, Sec. 324 R/w 149 of I. P. Code and Secs. 147, 148 R/w Sec. 149 of the I. P. Code and sentenced them as stated in the said judgment.

(2.) . The facts of the prosecution case, in brief are that the complainant Mangalbhai Sursangbhai resides at village Zamdi. Complainant got five sons including deceased Bhikha Mangal who was residing separate from his father in the adjoining house. The son of the uncle of the complainant Mangal named Chatur Fula also resides in the said village with his family including his deceased son Kanu Chaiur and injured Zanakben. The present accused are also residing in village Zamdi. It is the prosecution case that there are two frictions in the village; one that of complainant side and another of accused side; and both have kept separate Rakhas for keeping watch over their agricultural lands. Deceased Kanu Chatur was doing work of keeping watch over the lands of the persons of complainant's side and that accused No. 1 Chhita Mathur Makwana and accused No. 2 Amarsing Ratansing Chauhan were doing work of keeping watch over the lands of the persons of another friction, i.e. accused side. It is the prosecution case that on the day of incident, i.e. 7.3.1985, it was a day of "Dhuleti" and the accused No.1 Chhita Mathur Makwana and accused No.2 took away the goats of one Kasam Kachhi and they demanded Rs. 25.00 towards fine and deceased Kanu Chatur objected to it telling that those goats were on their lands and accused Nos. 1 and 2 had wrongly brought the goats and had wrongly demanded the fine. It is the prosecution case that thereupon there was some exchange of words between deceased Kanu Chatur and accused Nos. 1 & 2 and that one Amarsing Bhimsing had taken the responsibility of paying the amount of fine of Rs. 25.00 to the accused Nos. 1 & 2. It is further the prosecution case that at about 4.00 p.m. on the same day, i.e. 7.3.1985, the complainant Mangal Sursang, his son Bhikha Mangal and other members of their family were sitting in their house and were talking and at that time deceased Kanu Chatur, his father Chatur Fula and his sister Zanakben were also present at the house of the complainant. It is the prosecution case that Kanu Chatur and his father Chatur Fula were standing in the Angana of the house. It is further the prosecution case that the house of deceased Kanu Chatur is opposite to the village Panchayat Office of village Zamadi and after leaving the road, house of the complainant Mangal Sursang and house of deceased Bhikha Mangal are situated on the back side of the house of deceased Kanu Chatur. It is the prosecution case that there is a temple of Lalji Maharaj on the southern side of the house of deceased Bhikha Mangal and there is a wall of 4 feet in height between the house of Bhikha Mangal and the temple of Lalji Maharaj and that wall lead to the house of deceased Kanu Chatur. It is further the prosecution case that at that time one Himat Raysing was sleeping on the Otla of the office of village Panchayat and one Baijiben who is a relative of deceased Bhikha Mangal had gone to the house of the complainant-Mangal Sursang with her mother-in-law. It is further the prosecution case that at that time, all the accused came there from Maholla and that accused Nos. 1, 10 and 14 (acquitted) were armed with sticks, accused Nos. 2, 5 and 11 were armed with Gun, accused Nos. 3, 4, 7, 9, 12 and 13 were armed with spear, accused No. 8 was armed with axe and accused No. 6 was armed with dharia. It is further the prosecution case that appellant accused No. 5 Mangal Soma Chauhan fired a gun shot from the gun near the Panchayat Office at Himmat Raysing who was sleeping on the Otla of the Panchayat Office started to run and that gun shot struck on the chest of Himat Raysing. It is further the prosecution case that when Himat Raysing was running away, the appellant accused No. 10 Mathur Tribhovan Makwana gave a blow with stick on his left leg. However, Himat Raysing ran away. It is further the prosecution case that the accused persons, thereafter, went to the house of Kanu Chatur and at that time, Ramsing Soma who resides in the house just opposite to the house of deceased Kanu Chatur was standing nearby his house and the accused chased him telling that they wanted to kill him and thereupon he went inside his house and closed the door from inside. It is the prosecution case that the accused thereafter gave blows with their weapons on the door and roof of the house of said Ramsing Soma and thereafter went to the house of Kanu Chatur and appellant-accused No. 3-Kanji Ratansing Chauhan started inflicting a blow with spear on Kanu Chatur and at that time his sister Zanakben tried to intervene and thereupon spear blow inflicted by appellant-accused No. 3-Kanji Ratansing Chauhan was landed on the abdomen of said Janakben and her intestines came out. It is further the prosecution case that deceased Kanubhai took out a spear from his house and moved that spear to save himself and blow of that spear struck to appellant-accused No. 12-Punam Mathur Makwana. It is further the prosecution case that the appellant-accused No. 7 Manilal gave a blow with the spear on the chest of the deceased Kanu who sustained severe injuries on his chest and fell down. It is further the prosecution case that the father of deceased Kanu, i.e. Chatur Fula and wife of deceased Kanu, i.e. Galuben, took both injured inside the house and closed the doors of the house from inside. It is further the prosecution case that thereafter, the accused persons gave blows with their respective weapons on the door and on the roof of the house of Kanu Chatur. It is further the prosecution case that injured Kanu Chatur died in his house. It is further the prosecution case that the accused No. 2, meanwhile, ran towards the house of deceased Bhikha Mangal from the side of the temple of Lalji Maharaj with his gun. It is a further prosecution case that the complainant Mangal Sursang and deceased Bhikha Mangal and other members of his family had come out to see as to what had happened on hearing the gun shot which was fired near the Panchayat Office. It is the prosecution case that the accused No. 2-Amarsang Ratansang Chauhan fired a shot from his gun at deceased Bhikha Mangal from nearby wall of the temple of Lalji Maharaj and deceased Bhikha Mangal sustained injuries on his chest, etc. due to gun shot. It is further the prosecution case that injured Baijiben raised cries and the accused No. 5-Mangal Soma Chauhan gave a spear blow on the right elbow and on the right side of abdomen of Bai Baiji who sustained injuries. It is further the prosecution case that Shubhanben who resides nearby the house of the complainant Mangal Sursang, was also came out of her house along with her two sons and daughter, and the accused No. 10 Mathur Tribhovan Makwana had beaten her son Iqubal with stone on his head and gave stick blow on her leg and stick blow on her another son Yakub and that accused No. 10 had also beaten her daughter. It is further the prosecution case that accused No. 1 Chhita Mathur Makwana gave a stick blow on the waist of Shubhanben. It is further the prosecution case that in the mean time, the complainant Mangal Sursang took injured Bhikha Mangal inside and that injured Bhikha died in his house because of injuries sustained by him, and other relatives of family of both the deceased remained in their respective houses after the incident because of the fear of the accused persons. It is further the prosecution case that accused No. 12 Puna Mathur, accused No. 9 son Mohan and one Ambalal Mohan were taken to the Kavi Police Station and the injured accused No. 12 Puna Mathur lodged his complaint before the Kavi Police Station against deceased Kanu Chatur, his father Chatur Fula and complainant Mangal Sursang and they were sent for medical treatment with police yadi. It is further the prosecution case that PSI of Kavi Police Station had gone to village Zamdi at about 10.00 p.m. for the investigation of one theft case and he went to Panchayat Office and that on hearing the noise of police vehicle, complainant Mangal Sursang, father of deceased Kanu Chatur i.e. Chatur Fula and other persons came out from their respective houses and thereafter complainant Mangal Sursang went to the Panchayat Office and lodged his complaint Exh. 33 against accused persons before PSI Shri Par mar. PSI Parmar recorded said complaint Exh. 33 and sent it to Kavi Police Station for registration. On the strength of the complaint, police started investigation, recorded statements of the witnesses, searched houses of the accused persons and recovered guns and other weapons used by them, made inquest panchanamas of the dead bodies of deceased persons, sent said bodies for post-mortem. Investigating Officer also sent injured witnesses for medical treatment with police yadi. After completion of the investigation, all the 14 accused were charge-sheeted for the offences punishable under Sections 143, 147, 148, 302, 307, 247, 426, 506(2), 504, 337, 336 read with Section 149 of the I. P. Code and under Section 135 of Bombay Police Act and under Section 25(l)(a) of the Arms Act and came to be tried by the learned Addl. Sessions Judge, Bharuch in Sessions Case No. 71/85 who, after appreciating evidence led by the prosecution and more particularly, the evidence of injured and eye-witnesses, impugned judgment and order dated 31.3.86, convicted the appellants accused Nos. 1 to 13 for the offence punishable under Sections 302, 324, 147, 148 read with Section 149 of the I. P. Code and sentenced each of the appellants accused to undergo rigorous imprisonment for life and a fine of Rs. 200.00 each, in default of payment of fine, to undergo rigorous imprisonment for 10 days for the offence punishable under Section 302 R/w Section 149 of the I. P. Code; sentenced each of the appellants accused to undergo rigorous imprisonment for six months and to pay a fine of Rs. 300.00, in default of payment of fine, to further undergo rigorous imprisonment for 15 days for the offence punishable under Section 324 R/w Section 149 of the I. P. Code; sentenced the appellants accused to undergo rigorous imprisonment for 15 days and to pay a fine of Rs. 100.00 each, in default of payment of fine, to further undergo rigorous imprisonment for 7 days for the offences punishable under Sections 147, 148 R/w Section 149 of the I. P. Code. The learned Judge ordered substantive sentences to run concurrently. By the impugned judgment, the learned Judge also acquitted original accused No. 14 of the offences with which he was charged. Being aggrieved by the judgment and order of conviction and sentence, the appellants original accused Nos. 1 to 13 have preferred present appeal in this court.

(3.) . Mr. K. J. Shethna, learned Counsel appearing on behalf of the appellants- accused vehemently submitted that the judgment and order of the learned Judge is illegal, erroneous and contrary to law and evidence on record. He has submitted that there was no intention on the part of the appellants-accused to commit murder of deceased Kanu Chatur and deceased Bhikha Mangal. He has further submitted that common object of committing murder of aforesaid deceased cannot be attributed to all the appellants accused and in the facts circumstances of the case, Section 149 of I. P. Code is not attracted or applicable at all and, therefore, all the accused-appellants should be held responsible for their individual act. He has, therefore, submitted that the learned Judge has wrongly convicted all the appellants- accused under Section 149 of the I. P. Code. Mr. Shethna, learned Counsel, further submitted that the injured witnesses and eye-witnesses are highly interested witnesses and their evidence could not be believed and therefore, the learned Judge has committed an error in convicting the appellants-accused accepting the evidence of such highly interested witnesses. Mr. Shethna further submitted that the evidence of such highly interested witnesses could not have been believed by the learned Judge in view of the fact that there is enmity between the rival groups. Mr. Shethna further submitted that even evidence of injured and eye-witnesses is full of infirmities, contradictions and is not supported by medical evidence. He, therefore, submitted that such a evidence could not have been believed by the learned Judge. Mr. Shethna further submitted and tried to convince the Court that the appellants accused must have exercised right of private defence and, therefore, appellants- accused be acquitted. Mr. Shethna further submitted that when common object is attributed to the members of unlawful assembly, act done must be shown to have been committed to accomplish common object and in absence thereof, no conviction can be recorded. Mr. Shethna further submitted that where there is occurrence of incident in a village involving rival factions, appreciation of evidence of prosecution witnesses require utmost care and caution which care and caution has not been exercised in the instant case. In support of his submission Mr. Shethna, learned Counsel for the appellants-accused relied on the following authorities: