SUKARBHAI BHALUBHAI KUKANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants have been convicted of the offences punishable under sections 147, 148, 149 read with section 324 and section 149 read with section 302 I.P.C. and sentenced to imprisonment for life for the offence of murder and various terms of imprisonment for other minor offences. They challenge the said order of conviction and sentence by filing this appeal. The facts of this case as alleged by the prosecution may be briefly stated.

(2.) Deceased Navsu was the husband of Shakuntala. Shakuntala was residing at village Kajli, Taluka Dharampur, District Bulsar, with her children. The deceased had another wife named Bai Laxmi and her children were residing with Shakuntala. He had also one another wife named Pauna. Ravindra who is the prosecution witness in this case is also one of the sons of the deceased. One Vashram Machhi had given his tamarind tree for being cut to accused No.8 Bhimji and Bhimji bad to pay Rs. 500/-. The said tamarind tree belonged to one Jogi Baban. Bhimji could Dot cut the said tree for about a month and hence the deceased Navsu was given the same, by Vashram on sharing basis and -the said tree was cut by Navsu about 15 days before this incident took place. On the night of 24.5.1981, accused No. 8 and some other persons had been to the place of Shakuntala and asked Navsu as to why the tree was cut. Navsu replied that it was given to him by Vashram, hence he had cut the tree. Accused No.8 and his companions gave threats to Navsu for cutting the said tree. About eight days prior to this incident Navsu had been to Dharampur and when he was returning home at about 9 P.M. one Chandu Bachan came to the house of Shakuntala and informed her that her husband was obstructed and stones were thrown at him. Shakuntata then went to that spot along with her son Ravindra and others and they saw Navsu coming home with Babu Surji and he told Shakuntala as to what has happened. Then on 23.5.1981 Navsu had been to village Varoli where his another wife Laxmi was residing. Shakuntala was at Kajli at that time. Navsu along with prosecution witnesses Dhakal pupji, Chilu Bhika, Ratna Javla, Vasant Javla Narsinh Balu and Ganu Soma returned to village were then sitting on the on of the house of Shakuntala. They were all sitting on the Ota. Then at about 9.30 p.m. the ten accused before the Court came there with weapons. They came running and accused No.8 caught hold of Navsu and he gave knife blows to him. Accused Sukar was armed with a stick, while Chhaniya was armed with an axe, Devji with a sickle and Chhagan Dhanji, Velji Bandu, Raviya Bandu and others accused were armed with sticks. Shakuntala and other persons who had come from Vroli tried to intervene and save Navsu, but Shakuntala was given two stick blows on her waist and injuries were also caused to Dhakal Rupji and other witnesses by means of sticks, Shakuntala raised shorts and the village people came running and thereupon the assailants ran away. The deceased Navsu who had sustained a number of injuries became unconscious. The doctor was called and he came at about 1.30 a.m. and declared that Navsu was dead. Then, on the next day at about 8.45 a.m. a complaint was given at Kaparda Police Station by Shakuntala. Shakuntala gave complaint only against accused Nos. 1, 2, 3, 4, 5, 8 and 9. The police started investigation. During the course of investigation it was disclosed that accused Nos. 6, 7 and 10 were also amongst the assailants and completing the investigation, charge-sheet was submitted to the Court of the Judicial Magistrate who, in turn, committed the accused to the Court of Session, Bulsar at Navsari. The accused were tried before the learned Sessions Judge. The accused pleaded not guilty to the charge framed against them and. Claimed to be tried. It was the suggestion of the accused in the cross-examination of the prosecution witnesses that in the evening accused No. 10 was beaten and was dragged and taken towards the house of Navsu and hence many persons of the village were searching for accused No. 10 and when they came near Balvadi, those persons were attacked by the prosecution witnesses and injured, but in the statements recorded under section 313, Cr. P. C. the accused came out with a total denial. The learned Sessions Judge, on appreciation of the evidence of the prosecution witnesses, came to the conclusion that it was established by the prosecution beyond reasonable doubt that these ten accused formed an unlawful assembly, committed rioting and also committed the murder of Navsu and caused injuries to Shakuntala and others and accordingly convicted and sentenced all the ten accused, as stated in the beginning.

(3.) The learned Advocate Mr. H.K. Thakore who appeared on behalf of the appellants and Mr. H.L. Patel who appeared on behalf of appellant No.3 took us through the evidence and urged that there were a number of contradictions between the substantive evidence of the witnesses and their statements before the police. They also urged that looking to the finding of blood at only one spot on the ala and looking to the size of the Ota the incident could not have taken place as stated by the prosecution witnesses. He also urged that the portions of the statements of the injured witnesses which were brought on record by way or contradictions show that the injured witnesses were not able to identify their own assailants very probably because it was dark. They submitted that it is an admitted position that it was a dark night. An effort has been made at the trial to show that the appellants could be identified in the light of a lantern though that fact is not mentioned in the complaint given by Shakuntala about ten hours after the incident. They also submitted that even though Shakuntala had named only seven persons in the complaint given about ten hours after the incident, she has also now come forward with away that these ten accused were there and some other persons were also present and had also come on the Ota and assaulted her husband and other witnesses. They submitted that even Shakuntala admitted in her cross- examination that she saw some persons lurking near Balvadi which probabilises the defence version that the incident might have taken place near Balvadi house and not on the Ota of Shakuntala, as stated by the eyewitnesses. As against this, the learned Additional Public Prosecutor submitted that there was no reason to discard the evidence of the witnesses and particularly, Shakuntala simply because there are some exaggerations in their evidence. He submitted that the defence version was highly improbable because if the prosecution witnesses had gone to attack the persons near Balvadi, then they would have injured the accused and they would not have sustained so many injuries. He also submitted that the Ota is 15 broad east-west and 26 long north-south and that way, the incident could have taken place on the Ota. He also submitted, that the blood stains might, have been wiped out from other spots on account of the persons walking on the Ota as well as the nearby Ota. He submitted that there was no reason to discard the evidence of the witnesses, particularly Shakuntala.