NANDUBEN GOBARBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants through these appeals, challenge the judgment dated 8/10/1991, delivered by the then learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 94 of 1988, convicting them of the offence under Sec. 302, 307 read with 149, 147 and 148 of the Indian Penal Code, and sentencing each one to suffer rigorous imprisonment for life, for the offence under Sec. 302 read with 149, rigorous imprisonment for 10 years for the offence under Sec. 307, rigorous imprisonment for one year for the offence under Sec. 148, but inflicting no separate sentence with regard to the offence under Sec. 147, Indian Penal Code.

(2.) The case of the prosecution in brief is that about 5 Kms. away from village Kantasar two rivers meet where there is a dam. Between the two rivers, there is a doab used as grazing land, belonging to the Government. As usual Vagaji Bala, Mulji Bikha, Mepa Sagram, Popat Bijal and Sura Bav, the shepherds, had, on 6/07/1988, in the morning, gone to the grazing land for grazing their goats and sheeps. On the banks of the rivers there are vadas (orchards) of the appellants and other Koli people wherein they grow vegetables. Before 10-30 a.m. one of the goats of Sura Bav, while grazing, entered into the vada of Hirabhai Gobarbhai-the appellant No. 1 in Criminal Appeal No. 8 of 1992. In order to drive out the goat Hira Gobar hurled stones. Sura Bav, therefore, said in growling way, why he was cruel to the mute animal. Hira Gobar was enraged on being chidden. Sura Bav went to the grazing field taking his goat. Fretted Hira Gobar was then eating his heart out. The appellants, and four others namely, Gobar Parmar, Chittar Nana, Goda Vaja and Bachu Vaja engineered a plan to attack and cause injury. In furtherance of their design or common object the appellant in Criminal Appeal No. 854 of 1991 took the stick, Hira Gobar the appellant No. 1 in Criminal Appeal No. 8 of 1992 took the knife, the appellant No. 2 of the said appeal took a spear, the appellant No. 3 took a knife and the appellant No. 4 of that Appeal No. 8 of 1992 took a spear. All the nine persons then rushed to the grazing land and attacked on Sura Bav. Showering the blows with the weapons they were having they caused about 7 grievous injuries to Sura Bav. Muljibhai Bhikhabhai and Mepa Sagram tried to rescue Sura Bav. The appellants and their 4 other cronies also during the onslaught caused grievous injuries to them. Mulji Bhikha sustained 14 injuries mainly on vital parts. Likewise Mepa Sagram sustained 4 injuries on the vital parts. Because of profuse bleeding both Mulji and Mepa Sagram succumbed to the injuries on the spot. Vaghjibhai Balabhai and Popatbhai Bijalbhai who were with the injured Sura Bav for the purpose of grazing cattle saw the incident. They immediately rushed towards the village for help. Hira Sagram and Vaghabhai Bhikhabhai were approaching from the opposite direction as they were going to the grazing land for handing over tiffins to Muljibhai Bhikhabhai and Mepa Sagram. Popatbhai Bijalbhai and Vagjibhai Balabhai informed them about the incident which was going on at that time. All the four then rushed to the scene of offence. Remaining at a distance, Vagjibhai Balabhai and Vaghabhai Bhikhabhai could also see that the appellants and their cronies were showering the blows in rapid succession on Muljibhai Bhikhabhai and Mepa Sagram. They by shouts challenged, with the result the appellants and their cronies ran away. Going nearer they could see that Muljibhai and Mepabhai were mortally wounded and died in a while. Sura Bav who was seriously injured was then by a tractor taken to the hospital. Thereafter, the complaint before the Mahuva police station was lodged. After the usual investigation the police filed the charge-sheet against the appellants and 4 others before the Court of the Judicial Magistrate (F.C.) at Mahuva. The learned Magistrate was not competent to try the case. He, therefore, committed the case to the Court of Session at Bhavnagar. It then came to be registered as Sessions Case No. 94 of 1988. The then learned Additional Sessions Judge at Bhavnagar was also holding the sittings of the Court on deputation for some time in a month at Mahuva. The learned Sessions Judge assigned the case to the then learned Additional Sessions Judge, Bhavnagar camping at Mahuva, who hearing both the parties framed the charge (Exh. 8) to which the appellants and 4 others pleaded not guilty. The prosecution then adduced necessary evidence. Considering the evidence on record the learned Judge below found that the prosecution had succeeded in establishing the charge against the appellants and not against 4 others, namely, Gobar Parmar, Chittar Nana, Goda Vaja and Bachu Vaja. He, therefore, acquitted those 4 others, but convicted and sentenced the appellants as aforesaid. The convict-appellants have filed the appeals, and so we will confine to the case and evidence against the appellants.

(3.) On behalf of the appellants their learned Advocates assailed the judgment and order of the lower Court submitting that the learned Judge below did not appreciate the evidence consistent with the law and fell into error. According to them evidence of Vaghabhai Bhikhabhai (Exh. 21), Popatbhai Bijalbhai (Exh. 43), Sura Bav (Exh. 50) and Vagjibhai Balabhai (Exh. 54) was material and that evidence ought not to have to been accepted by the learned Judge as the same was inspiring no confidence and was not trustworthy. We find no substance in the contention. We have scanned the evidence of these four witnesses and no doubt is left in our mind about the establishment of charge against the present appellants beyond every reasonable doubt subject to a little modification indicated hereinbelow. All the four who have seen the incident have in details stated the manner in which the incident happened. Their say inspires confidence. Their testimony is not at all shaken in the cross-examination. We find their evidence credible, cogent, trustworthy and free from all doubts. Their evidence suffers from no inherent improbabilities. Further, they are also corroborated by the evidence of doctors. Dr. Gordhanbhai Tarpara (Exh. 19) and Dr. Jesral Ramdin (Exh. 34) have categorically supported the case of the prosecution by opining after carrying out the post mortem and examining Sura Bav. Dr. Gordhanbhai carried out the post mortem of the dead body of Muljibhai Bhikhabhai, while Dr. Jesral performed the post mortem of the dead body of Mepa Sagram, and gave treatment to Sura Bav. From the evidence of the doctors it is clear that Sura Bav was seriously injured and the injuries noted by the doctor were possible by the weapons the appellants were possessing. Both the doctors have also opined that Muljibhai Bhikhabhai and Mepa Sagram died because of the injuries they sustained on the vital parts. Their evidence clearly establishes that deaths of both the persons were homicidal, while the evidence of above stated four witnesses in clear term shows that the appellants were the assailants and they caused the injuries noted by the doctor, and thus supports the prosecution's case in toto. As the evidence is convincing, cogent and sufficiently reliable, the irresistible conclusion that can be drawn is that none else but the appellants attacked and caused harm to Sura Bav, Mulji Bhikha and Mepa Sagram, as a result Mulji Bhikha and Mepa Sagram lost their lives. The learned Judge was, therefore, right in holding against the present appellants and convicting and sentecing them as well. But for the reasons stated hereinbelow the order qua Nanduben is required to be modified.