Gujarat High Court
Jethabhai Arjanbhai Kodiyatar & 4 vs State Of ... on 21 March, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
R/CR.A/1628/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1628 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
JETHABHAI ARJANBHAI KODIYATAR & 4....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
==========================================================
Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Appellant(s) No. 1 - 5
MS.JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 21/03/2017
Page 1 of 23
HC-NIC Page 1 of 23 Created On Mon Aug 14 18:53:40 IST 2017
R/CR.A/1628/2013 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is filed by the original accused who have been under the impugned judgment dated 31.07.2013, passed by the learned Additional Sessions Judge, Veraval, convicted for the offences punishable under sections 143, 147, 148, 149, 504 and section 302 of Indian Penal Code. They have been sentenced to life imprisonment. Lesser sentences and fines have also been imposed. Briefly stated, the prosecution version was that deceased Amrutlal Kurjibhai Bhalodiya was the Sarpanch of village:Kadaya. The original accused, who belong to the same family, had previous animosity with the deceased. About five years before the date of the incident, deceased Amrutlal had a fight with Jethabhai Arjanbhaiaccused no.1 about grazing of cattle, for which, criminal case was also filed. Keeping grudge about such incident, on the date of incident i.e. on 20.08.2007, at about 5'O clock in the evening when Amrutlal was supervising the construction work on government land, the accused persons arrived there and assaulted him with axes and sticks, causing his death. Case of the prosecution Page 2 of 23 HC-NIC Page 2 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT also is that the accused wanted to cultivate such government land and Amrutlal as a Sarpanch of the village, was having some construction put up there which was also the immediate cause for the assault. A charge to this effect was framed to Exh.5. The learned Additional Sessions Judge having convicted the accused, they have filed this appeal.
2. We may record the gist of evidence.
3. Mavjibhai Kurjibhai, PW8, Exh.55, was a brother of the deceased and also the first informant. He deposed that he and his other brothers were engaged in agriculture. Since about seven to eight months before the incident, his brother Amrutlal was sarpanch of the village. About 5 years before the incident, Amrutlal had a fight with Jetha Arjanaccused no.1 about grazing cattle, for which, a criminal case was also filed. Since then there were disputes between Jetha Arjan and the family of the witness. On the date of the incident, since morning his brother Amrutlal was supervising the work of construction of new crematorium near the old lake of the village, for which, digging for the foundation was being done by Page 3 of 23 HC-NIC Page 3 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT JCB machine. At about 5:15 in the evening, he alongwith his brother Govind Kurji, Bhanji Gopal, Govind Natha and Govind Savji were sitting at the village chowk. At that time, Dalit Ranjit Gelabhai came running to them and called them to come urgently as near the old lake, the Rabaris of the village were beating up Amrutbhai. They all ran to the place and saw that the accused were hitting his brother Amrutlal with their weapons. Accused nos.1, 2 and 5 had axes with them. Accused no.3 and accused no.4 had sticks. Upon seeing them, these people left. The brother had received serious injuries on the head, hands and legs. Ranjit told them that when the JCB machine work was going on and Amrutlal was present, he was also present there and the five Rabaris came with weapons, abused Amrutlal and asked him why was he digging the foundation since they were to cultivate the land. Amrutlal told them that the crematorium for the village was to be constructed there. Thereupon these people got excited and started beating him. They took Amrutlal to the hospital. His FIR was registered at the hospital itself. The witness identified the accused before the Court.
Page 4 of 23
HC-NIC Page 4 of 23 Created On Mon Aug 14 18:53:40 IST 2017
R/CR.A/1628/2013 JUDGMENT
In the crossexamination, he agreed that the house of Amrutbhai was at the end of the village. After this house, the open land is situated. Amrutbhai's house would come first from the scene of the incident which was at a distance of about 150 feet from where they were sitting. He agreed to the suggestion that Ranjitbhai would have covered a distance of about 700 feet from the place of incidence to where they were sitting when he informed them about the assault on his brother. In the history given to the doctor, this witness had not given the names of the assailants. He was also crossexamined on his weak eyesight. He agreed that he had cataract on one of the eyes. According to him, he had seen the accused assaulting his brother when he was in lying down position.
4. PW9, Exh.57, Ranjitbhai Gelabhai, was the person who informed the first informant and other witnesses about the assault on Amrutlal. He deposed that since about 6 months before the incident, he was working for Kadaya Gram Panchayat as a daily wage labour. On the date of the incident, digging of the foundation for Page 5 of 23 HC-NIC Page 5 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT new crematorium next to the old lake was to be carried out. Sarpanch Amrutbhai had therefore hired the JCB machine of Uday Jasabhai Darbar of Galodar village. The witness had to do the labour work and therefore, had reported at the site at 11'O clock in the morning. The JCB digging work had started then. After lunch break, the work started again at 3'O clock in the afternoon. Udaysingh was operating the JCB machine. He and sarpanch Amrutlal were also present. At about 5'O clock, Jetha Arjanaccused no.1 with an axe, his son Naja Jetha , accused No.2 also with an axe, his another son Khima Jetha with a stick, his brother Karsan Puja (accused no.5) with an axe and his brother Sarman Punja, accused no. 4 with a stick came there. They questioned Amrutbhai why he was digging for foundation since they had to cultivate the land. Sarpanch told them that the village crematorium was to be constructed there. Thereupon, these people got angry. A blow was given on the back of the head with a stick by Khima Jetha. Amrutbhai fell down screaming. After this, all five people started giving random blows to Amrutbhai. He got scared and therefore ran to the chowk and informed the people Page 6 of 23 HC-NIC Page 6 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT sitting there. These people ran back with him to the place. At that time, Amrutbhai's wife and daughter Nikita also were ahead of them. They all rushed to the place. When they reached closer, the accused ran away. Amrutbhai was taken to a hospital in a jeep. In the crossexamination, he agreed that the house of sarpanch was closer than the chowk from where the incident had taken place. He had ran to the chowk and had taken barely about a minute to cover the distance of around 700 feet. He agreed that in his police statement, he had not referred to Amrutlal's wife or daughter being ahead of them when everyone was running towards the place of incident.
5. Govind Kurjibhai Bhalodiya, PW13, Exh.68, another brother of the deceased had also rushed to the scene of incident from the chowk where he was sitting upon being informed by Ranjit. He had estimated the distance from where he was sitting to the place of incidence at about 500 to 600 feet.
In the crossexamination, he agreed that he had seen the accused run away. He had seen the JCB machine cross them, after which, they had started Page 7 of 23 HC-NIC Page 7 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT running towards the place of incidence.
6. Govindbhai Nathabhai Dadhaniya, PW14, Exh.119, was also present at the chowk when Ranjit rushed to inform them about the assault. He had also estimated the distance between the chowk and the place of incidence between 500 to 600 feet.
7. Nikita Amrutlal, PW10, Exh.62, the daughter of the deceased deposed that on the date of the incident, her father had instructed to prepare tea at about 4:30. However, since no one came to take the tea which she had prepared, she climbed the terrace of her house to call someone to get it. It was at that time, she saw the five accused persons with axes and sticks assaulting her father. She immediately informed her mother, upon which, both of them started running towards that place. When they reached there, other people from the village also arrived, upon which, the accused ran away with their axes and sticks.
In the crossexamination, she agreed that the police had recorded her statement six days after the incidence. She claimed that if one shouted from the top of her house, the other person can hear it where Page 8 of 23 HC-NIC Page 8 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT the construction was going on. When she saw from her terrace, she could not see her father's face.
8. Uday Jashabhai Bhurani, PW12, Exh.65, was the driver of the JCB machine. He deposed that he drives a JCB machine which was of the ownership of his father. His village is at distance about 20 kms from village:Kadaya. Sarpanch of the village Amrutlal had called him for JCB work. He reached the village at 9 in the morning. He worked till afternoon. He started the work of digging to lay foundation for crematorium at about 3 O'clock. At that time, the Sarpanch and one Harijan boy were present. During this time, five people came with axes and sticks and started beating up Sarpanch. They asked him to stop the JCB machine. He got scared and left the place with his JCB machine. The other boy with him had ran towards the village shouting. The assailants were wearing clothes like those of Rabari community. He was not in a position to identify the accused.
In the crossexamination, he stated that when he went towards the village, no one had come where the Sarpanch was lying. Assailants had gone by the time he reached the village. When he was going towards the Page 9 of 23 HC-NIC Page 9 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT village, he had not seen any crowd coming from the village. He had however seen a few people sitting at the chowk.
9. Dr.Jahidbhai Ahmadbhai, PW7, Exh.50, had carried out the postmortem at the Malia Community Health Center. In the postmortem note, Exh.53, he had recorded following injuries:
On Head:
1. Chop wound on lt side on Parital bone 5 cm above from mastoid process 'Transverse 7cm x 1cm deep to muscle.
2. Chop wound: on lt side on Parital bone 2cm above from 1st injury Transverse 2 cm x 1 cm deep to muscle.
3. Chop wound: On lt side.
4. Chop wound: Middle of occipital bone Transverse 5 cm x 1 cm deep to muscle
5. Swelling on back 3 cm above from acciput 3cm diameter.
6. Swelling on middle of head 4 cm diameter.
7. Chopwound on lt sicle chick at Temparomandibulcr Jomt 2 cm x 1 cm Transverse deep to muscle Page 10 of 23 HC-NIC Page 10 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT
8. CLW: On lt side forarm above 9 cm from elbow Joint 2 & ½ cm x 1 cm deep to muscle around contusicm 4 cm diameter
9. Al wright wrist onle dorosm of hand: Abrasiau, contesiomt swelling On Rt leg:
1. Chop wound: 13 cm above from Heel on posterior part of leg 6cm x 3cm cut of skin underlying tissue & # of bone Transverse
2. Chop wound: 2 cm above from 1st injury on posteriar part of leg 5 cm x 3 cm cut of skin & underlying tissue Transverse
3. Chop wound: 3 cm above from 2nd injury on pasteriar part of leg 6 cm x 2&½ cm Transverse
4. Chop wound: 3 cm above from 3rd injury on posterior part of leg 6 cm x 2 cm cut of skin & underlying tissue On Lt leg
1. Chop wound: 15 cm above from Heel posteriar part of leg 10 cm x 3 cm cut of skin & underlying tissue & # of bone Transverse
2. Chop wound: 2 & ½ cm above from 1st injury posteriar part of leg 12 cm x 3 cm cut of skin & underlying tissue, Transverse
3. 3 cm above from 2st injury posterior part of Page 11 of 23 HC-NIC Page 11 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT leg 10 cm x 2 cm cut of skin underlying tissue, Transverse Three number of Bruise on Rt side back
1. From Rt scapular region at Posteur axillar lime forward middline at back. 20 cm x 4 cm Red colour oblique
2. 3 cm medial side from 1st Bruise, Parallel 17 cm x 4 cm read colour oblique
3. 2 & ½ cm medial side from 1st Bruise parallel 18 x 4 cm Red colour, oblique * On lt side back of Abdomen Two Number Bruise
1. From midline of back to posteriur axillary line 14 cm x 4 cm Red colour oblique
2. 4 cm latesal side from 1st bruise parallel to echomel 11 cm x 4 cm Red colour oblique.
In his opinion, cause of death was due to hemorrhagic shock due to head injury and injuries on both the legs. He stated that the injuries can be caused by the sticks and blunt side of the axes. The injuries were sufficient in ordinary course of nature to cause death.
10. Under discovery panchnama, Exh.46, the Page 12 of 23 HC-NIC Page 12 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT investigating agency discovered all five weapons i.e. three axes and two sticks at the instance of accused no.1Jetha Arjan. The panchnama Exh.46, records that the said accused led the panch witness and the police party to an isolated place from where under a bridge, from a water pond, he took out the three axes and the sticks.
11. Different articles collected by the investigating agency during the course of investigation were sent for forensic analysis. The FSL report read with serological report, Exh.115, would show that the blood group of the deceased was 'O'. Naturally therefore, from his own clothes such blood was detected. Blood of the same group was also detected from the clothes of all five accused. The three axes also showed traces of such blood. Though the sticks also had blood on it, it was insufficient to analyze the group thereof.
12. Samatbhai Arjanbhai, PW16, Exh.93, was the Investigating Officer who in the crossexamination agreed that by 26.08.2007, statements of all important witnesses were recorded and in none of these Page 13 of 23 HC-NIC Page 13 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT statements there was any reference to the wife of the deceased or his daughter Nikita being eyewitness. This witness estimated the distance between the scene of incident and the house of Sarpanch to be about 500 feet and the distance of the chowk from the house of the Sarpanch another 100 to 150 feet. By this calculation therefore, the distance between the scene of incident and the chowk where the other witnesses were sitting would come to roughly 650 feet.
13. This, in the nutshell, is the evidence on record. On the basis of such evidence, we would find the testimony of Nikita, PW10, not entirely believable. There are multiple reasons for this. She claimed to have seen the incident when she climbed the terrace of the house wondering why nobody had come to collect the tea which her father had instructed her to prepare in the late afternoon. Her explanation that she wanted to shout for somebody to fetch the tea itself is somewhat strange. By all accounts, the distance between the house and the place where the work was going on was close to 500 feet i.e. about 160 meters. It is doubtful if a person can hear another calling from such a distance, that too when a JCB machine Page 14 of 23 HC-NIC Page 14 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT digging work was going on. Further, her statement was recorded after about six days of the incidence. By which time, as per the Investigating Officer's own account, statements of all important witnesses were already recorded. None of them referred to Nikita or her mother being eyewitness. The witness such as Ranjit, PW9, and other who claimed that when they were running towards the incidence from the village, Nikita and her mother were ahead of them about 50 feet, had apparently not mentioned this important aspect in their police statements. The claim of Nikita having seen the incidence therefore needs to be discarded.
14. We also have some doubt about other witnesses i.e. Mavjibhai Kurjibhai, PW8, Exh.55, the first informant, Govind Kurjibhai Bhalodiya, PW13, Exh.68 and Govindbhai Nathabhai Dadhaniya, PW14, Exh.119, having reached the scene of the incident in time enough to be able to see the actual assault. We may recall, these witnesses were sitting at the village chowk when Ranjit rushed to them telling them about the assault going on, on Sarpanch. Ranjit claimed that he ran as soon as these five accused started Page 15 of 23 HC-NIC Page 15 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT beating the Sarpanch after a brief quarrel. Going by the accounts of various witnesses, the distance between the scene of incident and where the chowk was situated, would be about 600 to 650 feet i.e. approximately 200 meters. Thus, Ranjit would have covered 200 meters, informed these people sitting at the chowk who would cover a similar distance to reach the incidence. This process of course would take some time. The claim of these three witnesses of having precisely seen the assault and giving details of which accused gave the blows, therefore seems somewhat doubtful.
15. Nevertheless, this does not mean that these witnesses could not have reached the place of incident to be able to see these accused in process of getting away from the scene of incident. Ranjit is a young man. For him to cover a distance of 200 meters running would certainly not take more than a minute. This is precisely what he also deposed. When such a serious assault is going on, Ranjit did not need to tell the entire story to the people sitting at the chowk which included some of the close relatives of the deceased. Without wasting a moment's time, they Page 16 of 23 HC-NIC Page 16 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT would have ran back with Ranjit. The entire chain would be completed in less than two minutes. When we assess the evidence of other two witnesses i.e. Ranjit and the JCB machine operator Uday, we would give further reasons for accepting this version of the prosecution. For the present, we may conclude that these witnesses may not have actually seen the entire assault committed on the deceased, nevertheless, there is no reason to believe that they did not see a part of it or at any rate see the accused run away from the place. All the accused belong to the same village. The time of the incident was early evening hours. The witnesses therefore did not have to reach the exact spot for being able to see the accused and identify them. Identification of the familiar people in broad day light can be possible even from a distance of 100 odd feet or more.
16. Ranjit, PW9, Exh.57, is an important witness. He was present at the scene of incident as a helper labourer when the work of digging with the JCB machine was going on. He pointed out that the work restarted in the afternoon at about 3'O clock. The JCB machine work was going on and the Sarpanch was present all Page 17 of 23 HC-NIC Page 17 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT throughout. He was also present as a labourer. At 5'O clock, five Rabaris came from the village, carrying axes and sticks. He knew them all by names. They first quarreled with the Sarpanch for digging up the land which they were to cultivate. When the Sarpanch told them that the work of construction of new crematorium was going on, they all got angry and started beating him up. He ran to call other people and came back with the brothers of the deceased and other people.
17. We have no reason to discard the version of this important witness. In the crossexamination, the defense has not even seriously questioned his presence at the scene of incident as a labourer. In fact, the suggestion was that Amrutbhai was his employer and that therefore, he had given the deposition. By all accounts thus, his presence at the scene of incident was duly established. It was but natural that as a daily wage labourer working for the Panchayat, he would be needed to carry out the odd labour work while with the JCB machine the earth work was going on. His reference therefore to the arrival of five accused with their weapons, during the quarrel that they Page 18 of 23 HC-NIC Page 18 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT picked up with the Sarpanch followed by the assault, needs to be accepted. He may not have witnessed the entire incident. It is but natural that as soon as the incident started, he would have got extremely scared. His reaction to run from the place and to inform others in the village was most natural. He had every reason to fear for his own safety. Had he remained there he also may have been targeted. The village chowk was not very far from where the assault was taking place. Though as he himself pointed out that he did not wait to see the entire incident, we have no doubt that he did see starting of the accused assaulting the Sarpanch.
18. His version is substantially corroborated by that of Uday Jashabhai Bhurani, PW12, Exh.65. He was the driver of the JCB machine. He also pointed out that the digging work restarted at about 3'O clock in the afternoon. At about 5'O clock, five people dressed in clothes common for Rabari community arrived there with axes and sticks and stopped him from carrying out further digging work and assaulted the Sarpanch. Obviously worried for his own safety, he therefore left the place as soon as he could with his JCB Page 19 of 23 HC-NIC Page 19 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT machine. Importantly, this witness also referred to the presence of Sarpanch and a Harijan boy when the work was going on. It is true that he referred to such boy being aged about 10 years, he also pointed out that till he crossed the village, he had not seen crowd of people coming to the place of incident but, did mention that four or five people were sitting at the chowk. The testimony of this witness does not dent the prosecution version. If at all, on most material aspects, he corroborates version of Ranjit. Just as Ranjit pointed out, this witness also referred to the digging work by JCB machine going on throughout the day in presence of the Sarpanch and the labourers. This witness also had stated that after the afternoon break, the work had restarted at about 3'O clock. At about 5'O clock, five Rabaris had come with axes and sticks and stopped him from carrying on further digging work and had assaulted the Sarpanch. Significantly, he also stated that a Harijan labour boy had ran towards the village shouting. His reference to crowds of the villagers not crossing him, need not be mistaken as no person was going towards the scene of incidence. More importantly, if he Page 20 of 23 HC-NIC Page 20 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT crossed the village chowk before Ranjit, there was nothing unusual about it. He was in a vehicle, whereas Ranjit was running towards the village. What is of significance is that this witness referred to the ongoing construction work, presence of the Sarpanch alongwith the Harijan labour boy and assault by five Rabaris at about 5'O clock after they stopped him from carrying on further work. All these aspects fit completely with the version of Ranjit. Minor inconsistency or error in estimation of the age of the labour boy would not shake the very foundation of the prosecution case. Strong corroboration is available in the form of medical evidence where the doctor who carried out the postmortem, confirmed multiple injuries on all parts of the body including the head, hands and legs, which could be caused by hard and blunt substances such as sticks and blunt portion of axes. The weapons carried blood of the group belonging to the deceased and more significantly, the clothes of all the accused carried the blood of the same group. We have therefore no hesitation in accepting the prosecution case of the five Rabaris arriving at the scene of incidence, carrying weapons Page 21 of 23 HC-NIC Page 21 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT such as axes and sticks. The previous animosity between the Sarpanch and the accused due to a fight about grazing cattle was seriously not disputed by the defense. The immediate trigger for the assault was the grievance of the accused that the Sarpanch was carrying out construction of a new crematorium on the land which the accused desired to cultivate. The fact that the accused therefore formed an unlawful assembly is undisputable. The learned advocate for the appellants had contended that at any rate, the accused had not committed the offence of murder. He therefore pleaded for conviction for lessor offences. However, looking to the weapons used, the nature of injuries caused, and the manner in which the assault took place, the accused cannot get away from the offence of murder. As many as 21 injuries were found all over the body including on the head. The deceased, as per the eyewitness' account, had fallen down immediately upon the first blow being given on the head. After this, all the accused gave repeated blows all over the body. It may be that no single injury was fatal. However, while judging the culpability of the accused in such cases, their intention has to be culled out Page 22 of 23 HC-NIC Page 22 of 23 Created On Mon Aug 14 18:53:40 IST 2017 R/CR.A/1628/2013 JUDGMENT from the overall set of facts, important aspect being the nature of injury caused and the weapons used. From such aspects, we have no doubt that the learned Judge committed no error in convicting all the accused for offence punishable under section 302 read with section 149 IPC. Their conviction and sentences are therefore upheld.
19. Criminal appeal is dismissed. R & P to be transmitted to the Trial Court.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) ANKIT Page 23 of 23 HC-NIC Page 23 of 23 Created On Mon Aug 14 18:53:40 IST 2017