SINDHI TARMOHMED JUSAB Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment and Order of conviction and sentence passed against the present appellants by the Addl. Sessions Judge and the Designated Judge, Junagadh in Criminal Case No. 42 of 1989 dated 19th May 1990, whereby the appellants have been convicted for the offences punishable under Sec. 143, 147, 148 and 302 read with Sec. 149 of the Indian Penal Code and each one of them was sentenced to life imprisonment for the offence punishable under Sec. 302 read with Sec. 149 of the Indian Penal Code, and no separate sentence has been awarded for other offences.

(2.) . With regard to an incident dated 18th March 1989 which took place at 3.00 p.m., an FIR was lodged on the same day at 6.45 p.m. at the police station Bhesan. This FIR is Exh. 39 at page No. 173 of trie-paper book. The complaint was filed by one Sarbai Sindhi, wife of Valimohmedali, resident of Vishal, Hadmatiya, alleging that in the morning of 18th March 1989 at about 10.00 a.m., she along with her husband Valimohmedali, her brother-in-law Habibali, wife of her brother-in-law (Devar) - Khatuben and her own son Haji had gone to the wadi of Shamji Padma Patel and worked there until afternoon. At that time, her daughter Hajra and Habib's daughter Rashida aged 9 years came with the meals and went hack to home. Having taken the meals, they again started agricultural work and at 3.00 p.m., her husband and her brother- in-law left to bring water pump machine for the wadi of Harijan Alabhai so as to install in their own wadi. Thereafter, her son Haji went to the wadi of Touniana Patel by the side of their own wadi to bring the bullock cart and went towards the river with the bullock cart. Thereafter she and wife of her brother-in-law Khatuben left towards river for lining. While they were a little away from the river, she heard the sound of fire, but when she reached the spot where the water pump machine was placed, she found Tarmohmed Jusab, Sulaiman Jusab, Noormohmed Jusab and Hasan Jusab with guns and Hamad Jusab, Issac Osman, Abu Hasan. Tarmohmed Ibu and Tarmohmed Ismail were there with Bhala (spear) and Kuhadi (axe). These persons were beating her husband and brother-in-law with Bhala (spear) and Kuhadi (axe) and her husband and her brother-in-law had fallen down. The four persons as above who were having guns were standing there and telling, "finish them". Having seen as above, she and wife of her bother-in- law started crying and all the ten persons named as above boarded the Tractor and went towards the village. She, wife of her brother-in-law and her son found that her husband Valimohmed aged about 60 years and her brother-in-law aged about 30 years had died. Their bodies were blooded all over and thereafter she along with her son Haji went to Medpara to Sindhi Jusabbhai and therefrom they had come to the police station with Jusabbhai on motorcycle. It is also given out by her in the complaint that about five years back, her brother-in-law Habibali had killed one Ahmad Osman, i.e. Buva's son of Tarmohmed Jusab and in that case, her brother-in-law had been sentenced to life imprisonment and her brother-in-law Habibali had come on parole about 15 days back to the village Vishal Hadmatiya and it is for this reason that the abovenamed ten persons had jointly killed her husband and her brother-in-law with gun fire, Kuhadi (axe) and Bhala (spear). Out of the four persons having guns, Sulaiman Jusab had a licenced gun and whether the rest of the three had licence or not is not known to her. On the basis of this complaint, Criminal Case No. 14 of 1989 was registered in the crime register. The case was registered against the aforesaid ten persons under Sec. 302, 143, 147, 148, 149 of the Indian Penal Code, Sec. 5 of the TADA Act, Sec. 25(C) of the Arms Act and Sec. 135 of the Bombay Police Act. After the investigation, the police filed the chargeshect against the aforesaid ten persons, i.e. present ten appellants in Criminal Case No. 42 of 1989 before the Designated Court at Junagadh. It appears from page 15 of the paper book that on 18th January 1990, the Addl. Sessions Judge, Junagadh had passed an Order that the Government had withdrawn the charge against the accused persons under Sec. 5 of the TADA Act of 1987 and since the charge was withdrawn before framing the charge, the accused were discharged from the charge under TADA Act. The charges were framed against the present ten appellants on 18th January 1990 for the offences under Sec. 302, 143, 147, 148, 149 of the the Indian Penal Code and Sec. 135 of the Bombay Police Act. The appellants accused persons denied the charge and claimed trial. The trial has resulted into their conviction and sentence as aforesaid vide judgment and order of conviction dated 19th May 1990 passed by the Addl. Sessions Judge and Designated Judge, Junagadh, which is under challenge in this appeal.

(3.) . In the trial, the prosecution examined PW. 3 Sarbai Exh. 38 (wife of deceased Valinlhmed) at page 159 of the paper book, PW. 4 Khatija Exh. 42 (wife of deceased Habibali) at page 178, PW. 5 Hajibhai Valimohmed at Exh. 43 (son of deceased Valimohmed) at page 183 of the paper book. Out of these three eye witnesses, PW. 4 and PW. 5 were declared hostile. By way of medical evidence, PW. 2 Dr. Vallabhbhai Gopalbhai was examined at Exh. 34 at page 149 of the paper book. He has proved the post-mortem note of deceased Valimohmed Exh. 35 at page 153. PW. 6 Dr. Bhalchandra Joshi has been examined at Exh. 44 at page 186 of the paper book to prove the Post Mortem note of deceased Habibali Exh. 46 at page 193.